Posted by: Patricia Salkin | August 19, 2015

NH Supreme Court Upholds Zoning Board of Appeals Finding Appeal was Timely and ZBA Had Authority to Act

In November 2012, Accurate Transport submitted a preliminary site plan application to the Derry Planning Board for approval to operate a “Dumpster Depot” business on property owned by Ashleigh Drive. Prior to the Planning Board’s review, the Technical Review Committee held a meeting approving the proposed plan, and the petitioners filed a formal site plan application with the Planning Board. At the August 21 meeting, the Planning Board voted to approve the petitioner’s application subject to several conditions, some of which differed from the conditions proposed on June 19. An abutter to the subject property, John T. O’Connor, filed an application for administrative appeal with the ZBA. The ZBA denied the appeal based upon lack of jurisdiction because it deemed the appeal untimely. The ZBA decided that, because the appeal also contained timely allegations relating to the Planning Board’s interpretation and application of the zoning ordinance in its August 21 decision, it would “convert” O’Connor’s appeal to an appeal of that decision, and construe the appeal as timely. The respondent, the Town of Derry, appealed a decision of the Superior Court granting the motion for summary judgment filed by the petitioners, Accurate Transport, Inc. and 41 Ashleigh Drive, LLC, on the basis that an abutter’s appeal to the Derry Zoning Board of Adjustment was untimely.

The petitioners argued that the ZBA “acted unlawfully in ‘converting’ the appeal” to an appeal of the Planning Board’s August 21 decision because no statute granted the ZBA the ability to so act. However, the court found the proper enforcement of zoning ordinances was specifically within the ZBA’s jurisdiction and the ZBA had authority to address the zoning issues raised in O’Connor’s appeal. Given the ZBA’s broad authority and the content of O’Connor’s appeal, the court disagreed that the ZBA erred by finding that his appeal contained allegations relating to the Planning Board’s August 21 decision and by then treating the appeal as an appeal of that decision. The Court also found that the decision was timely because the appeal period began to run on the date of the planning board’s conditional approval of the site plan application, since on that date the planning board decided the zoning issue. Finally, the court held that the ZBA did not exceed its authority considering whether the use was potentially permitted under any other zoning classification. Accordingly, the Superior Court’s decision in favor of the petitioners was reversed.

Accurate Transport, Inc. v Town of Derry, 2015 WL 4734916 (NH 8/11/2015)

The opinion can be accessed at:

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