Ordinarily, challenges to the issuance of decisions regarding building permits are to be made to the zoning board of adjustment prior to taking an appeal to the superior court. In the present case, the McNamaras alleged that they purchased their home not knowing that a building permit had been issued to the Hershes on the abutting lot. When the Hershes began construction in mid-October 2005 the McNamaras did not appeal the decision to issue to building permit to the zoning board of adjustment, rather, in August 2006 they sought a declaratory judgment from the Court that the building permit was unlawfully issued (since the local ordinance only permitted building on 10% of the land but the permit allowed building to cover 13% of the land) and was thus void. The trial court dismissed the petition.
The Supreme Court held that the McNamaras failed to exhaust their administrative remedies when they chose not to appeal to the zoning board of adjustment. The Court noted that the alleged error - that the permit violated the ordinance - is an error that is within the power of the zoning board to correct. Further, the Supreme Court agreed with the trial court that the McNamaras failed to bring their claim within a reasonable period of time. Therefore, the Court upheld the dismissal of their declaratory judgment petition.
McNamara v. Hersh, 2008 WL 899243 (N.H. 4/4/2008).
The opinion can be accessed at: http://www.courts.state.nh.us/supreme/opinions/2008/mcnam031.pdf
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