This post was authored by Matthew Loescher. Esq.
In this case, Juliana and David Lonergan, appealed an order of the Superior Court affirming a decision by the Town of Sanbornton’s Zoning Board of Adjustment (“ZBA”) to approve a special exception for an excavation site for property owned by the intervenor, R.D. Edmunds Land Holdings, LLC. The Town and the intervenor argued that court lacked subject matter jurisdiction based upon the plaintiffs’ failure to timely move for rehearing with the ZBA as required by RSA 155-E:9 (2014).
The plaintiffs contended that the ZBA lacked authority to approve an excavation permit because “the Town did not duly warn the voters it was choosing to appoint the ZBA its regulator” as required under RSA 155-E:1, III(a). The court rejected this argument, noting a presumption of procedural validity five years following the enactment of municipal legislation. As the municipal legislation at issue was enacted more than five years ago, this claim was barred.
The plaintiffs next argued that RSA 155-E:9 did not apply because the ZBA lacked jurisdiction to grant an RSA chapter 155-E excavation permit due to insufficient notice that approving an Article 18(B)(3) special exception would also constitute an approval of an excavation permit. The court noted that the notice of the August 2020 hearing stated both the time and place of the hearing. As such, based on the information that the Town provided, the notice of hearing satisfied RSA 676:7. Additionally, the court found that the plaintiffs neither identified a protected interest, nor explained how the procedures provided deprived them of a protected interest. Specifically, the plaintiffs neither mentioned the words “due process” in their briefs, nor identified a constitutional provision that would provide them with due process rights in this situation. Accordingly, the court declined to address this argument.
Longeron v Town of Sandborn, 2023 WL 3729653 (NH 5/31/2023)
LAW OF THE LAND 
Leave a comment