Nicolas and Jill Bosonetto own property located inRichmondon a private road with three mobile homes. Bonsonetto submitted a building permit application requesting permission to replace one of the mobile homes with a new, three-bedroom residence. The application was denied “based on the fact that the property is on a private road and the Town [ofRichmond] does not have provisions for building permits on private roads.” The statute explicitly provides that permits may be issued if “the local governing body has voted to authorize the issuance of building permits for the erection of buildings on said private road.” The statute also sets forth an appeal process to the ZBA, and authorizes the ZBA to “make any reasonable exception…”
Bonsonetto appealed the decision and the ZBA determined that the petitioner had a vested right to use the existing structures because building permits were issued for them, but members noted, that that right does not permit the petitioner to replace the existing mobile home with a different building at a different location. More than thirty days after the oral denial of the application, but less than thirty days after the written notice of decision was approved by the ZBA, Bonsonetto filed a motion for rehearing. However, the ZBA required that a motion for rehearing be filed within “30 days after any order or decision of the [ZBA]” and that the thirty-day time period “shall be counted in calendar days beginning with the date following the date upon which the [ZBA] voted to approve or disapprove the application.”
Bonsonetto argues that the 30 day time period should not run until the day the ZBA voted to approve its notice of decision citing a provision that states if the moving party shows the minutes of the meeting were not filed within 144 hours after the vote, the person applying for the rehearing shall have the right to amend the motion … within 30 days after the date on which the written decision was actually filed. However, the court found that this merely provides for an opportunity to amend the motion, it does not change the date when the period begins to run.
Bonsonetto also argued that the Town should have been estopped from raising the timeliness issue since the instructions they provided were contrary to the statutory requirements. However, as the trial court pointed out, there is no way to conclude that the Town made the misstatement of the law with the intention of inducing the petitioner to rely upon it. In addition, the court pointed out that a party may not assert equitable estoppel to avoid the application of a statute, which is what the petitioner is attempting to do.
Also, the petitioner claimed that both the Board of Selectman (BOS) and the ZBA unconstitutionally and illegally applied the statute to his use of his property and the petitioner asked the court to reverse and remand the case to either the ZBA or the BOS. He maintains that he has such a vested right because his proposal is merely a continuation of his prior lawful nonconforming use. Although the right of nonconforming use is recognized inNew Hampshire, this right extends to the expansion of a nonconforming use, but “enlargement or expansion may not be substantial and may not render premises or property proportionally less.” The ZBA’s ruling on the issue was explicitly premised on its factual finding that the proposed house would be on “a ‘footprint’ larger and at a different location than that of the existing mobile home,” therefore the petitioner is not granted the nonconforming use right.
Bosonetto v Town ofRichmond, 2012 WL 2476958 (NH 6/29/2012)
The opinion can be accessed at: http://www.courts.state.nh.us/supreme/opinions/2012/2012063bosonetto.pdf