Posted by: Patricia Salkin | September 30, 2008

NH Supreme Court Holds That Zoning Administrator Has No Constitutional Duty to Keep Adjacent Property Owners Personally Informed of Ongoing Progress

The Strochlics received permits to raze an existing house on their property and to construct a new one in July and September of 2006, following the issuance of a zoning permit in April 2006.  Adjacent property owners met with the zoning administrator to inquire about the project, and in October 2006 filed an appeal with the zoning board of appeals contesting the issuance of the building permit, claiming that the zoning administrator did not properly calculate the setback requirements.  The zoning board held that the matter was untimely since the local zoning regulations required that challenges to the decision of the zoning administrator be filed with the board within fifteen days. The Superior Court upheld the decision of the zoning board.

 

On appeal to the Supreme Court, the petitioners argued: 1) due process bars the strict application of the fifteen-day appeal period because of the unique circumstances of this case (they alleged that the administrator represented that she would keep them informed of progress on the project); 2) the trial court erred in ruling that there was no evidence to suggest they were mislead; 3) that they offered substantial evidence to prove the zoning board’s decision was unreasonable; and 4) the zoning administrator failed in her constitutional duty to provide assistance to them as citizens, and this interfered with their right and ability to properly appeal.

 

The Supreme Court dismissed the due process argument finding that the petitioners failed to establish that the zoning board’s decision was unreasonable or unlawful.  Although the petitioners claim that they were misled and that they believed that the zoning administrator provided an expectation that she would provide them with direct notice, the Court found that they had actual knowledge of the final footprint in May 2006, and that they had an opportunity to see the permit through, at a minimum, the public posting procedure the Town was required to follow pursuant to its zoning ordinance. The fact remained that the petitioners failed to pursue an appeal for six months after the May 2006 meeting, and therefore, the Court concluded that they have not established that the trial court’s rejection of their due process claim was unreasonable or clearly erroneous.

 

Turning to the argument that the State constitution imposed a duty upon the zoning administrator, in response to a direct inquiry, to properly inform the petitioners about the status of zoning approvals with respect to the subject property, the Court said that the constitutional duty to provide assistance to citizens is measured with a benchmark of reasonableness.  The Court explained that the constitutional duty, while relevant when an abutter or interested resident inquires about a project, is the same as the scope of the duty the petitioners seek to impose in this case. At most, the Court found that the record supports a conclusion that the petitioners inquired and expressed concern about the project and the placement of the house. Therefore, the Court concluded, that on the record, they “cannot endorse imposing upon the zoning administrator a constitutional duty to have taken some initiative to educate…[the petitioners] about the pendency of the project and about the appeal process.”

Kelsey v. Town of Hanover, 2008 WL 3893222 (N.H. 8/20/2008).

 

The opinion can be accessed at: http://www.courts.state.nh.us/supreme/opinions/2008/kelse092.pdf


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