Posted by: Patricia Salkin | December 2, 2014

NH Supreme Court Holds Municipal Estoppel Claim not Barred by the Exhaustion of Administrative Remedies Doctrine Where Zoning Board Lacked Authority to Grant Requested Relief

The Dembiecs obtained a permit from the Town of Holderness (Town) to construct a single family home. When construction of the home was substantially completed, the Town’s compliance officer advised the petitioners that he would not issue a certificate of compliance for their new home because the existing boathouse contained a dwelling unit, and the applicable zoning ordinance allowed two dwellings on a lot only when they are in the same structure. The compliance officer informed the petitioners that they would need either to obtain a variance or to remove all plumbing from the boathouse. The petitioners applied to the zoning board of adjustment for an equitable waiver from the ordinance, which originally granted the waiver, but on rehearing, denied it. The petitioners then sought a variance, but the board denied their application. The trial court ruled that it lacked jurisdiction to hear the petitioners’ municipal estoppel claim because they had failed to exhaust their administrative remedies. The petitioners now argue that the trial court had jurisdiction over their claim because they were not required to first raise it before the zoning board of adjustment.

The court noted that usually parties must exhaust their administrative remedies before appealing to the courts; however, a petitioner need not exhaust administrative remedies and may bring a declaratory judgment action to challenge the decisions of municipal officers and boards when the action raises a question that is peculiarly suited to judicial rather than administrative treatment and no other adequate remedy is available. The court then determined that the applicable statutes did not confer upon a zoning board of adjustment the power to grant relief under the equitable doctrine of municipal estoppel. Thus, exhaustion was found not to be always required when, as in this case, resolving the factual issues did not require “specialized administrative understanding,” and when further pursuit of administrative remedies would be futile. Accordingly, the court held that the petitioners’ assertion of a municipal estoppel claim for the first time in the trial court is not barred by the exhaustion of administrative remedies doctrine.

Dembiee v Town of Holderness, 2014 WL 5859514 (NH 11/13/2014)

The opinion can be accessed at:

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