New Hampshire Municipal Association
New Hampshire Municipal Association

Court Update

Naming Incorrect Party as Defendant Not Fatal to Appeal of Planning Board Decision

Judy Atwater & a. v. Town of Plainfield
No. 2006-915, 9/28/2007

The plaintiffs filed an appeal of a planning board approval for site plan review pursuant to RSA 677:15 naming as defendant the party that received the site plan approval in the caption of the appeal, and naming the town planning board in the body of the petition. The plaintiffs subsequently made a motion to substitute the town as the defendant, which was granted by the trial court. The town moved to dismiss since it had not been named as a defendant within thirty days of the board’s approval, and therefore the trial court lacked jurisdiction. The trial court granted the town’s motion, ruling that it lacked jurisdiction to hear the appeal.

The Court noted that it has held that defective or untimely service of a timely filed appeal does not divest the trial court of its jurisdiction. In its review of RSA 677:15, the Court pointed out that the statute does not impose a requirement of notice to any party in advance of the filing of the appeal. The Court concluded that the plaintiffs’ filing of the appeal within thirty days of the planning board’s vote on the site plan application established jurisdiction.

Please be advised that the foregoing case summary is based upon a Supreme Court slip opinion. Slip opinions are subject to change following motions for rehearing and/or motions for reconsideration. The Court may also modify the opinion without motion. The final version of the Court’s opinion is that which appears in the New Hampshire Reports.

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