New Hampshire Municipal Association
New Hampshire Municipal Association

Court Update

Zoning Administrator Did Not Violate Constitutional Duty to Assist Opponents of Project with Their ZBA Appeal Process

Kelsey et al. v. Town of Hanover
No. 2007-702, 8/20/2008

Zoning and planning litigation frequently deals with the constitutional rights of property owners aggrieved by regulation of their land use. In this case neighbors opposed to proposed construction of a house claimed that their constitutional rights were violated in the way they were allegedly misled by the Town’s zoning administrator.

The Strochlics acquired a certain house in November 2005, planning to raze it and replace it with a new house. The plaintiffs Kelsey and Holloway were neighbors concerned with house size and zoning setbacks on the small, irregularly configured lot. The Hanover zoning ordinance requires a zoning permit for proposed construction to signify zoning compliance. Under the ordinance, when a zoning permit is issued, a copy is posted in a public place, and an appeal may be taken to the zoning board of adjustment within 15 days of issuance. A zoning permit was issued to the Strochlics on April 28, 2006 and posted as required. Kelsey and Holloway did not appeal within 15 days but did meet with the zoning administrator later in May and had an opportunity to view the plans and permit at that time. The Strochlics demolished their old house in October 2006, and stakes for a new foundation were placed. On October 25, the plaintiffs filed an appeal with the ZBA, claiming a setback violation.

At the ZBA public hearing Holloway testified that she and Kelsey had met with the zoning administrator in the fall 2005 and left the meeting with the “understanding” or “feeling” that they would be notified directly if any permit were to be issued to the Strochlics. The zoning administrator testified that she could not recall ever telling anyone who came to the office that she would give them more notice of a matter than was required. The ZBA dismissed the appeal for lack of jurisdiction because it was untimely. The superior court upheld the ZBA, and the plaintiffs appealed to the Supreme Court.

On appeal the plaintiffs did not challenge the validity of the 15-day appeal period but claimed that the allegedly misleading behavior of the zoning administrator made it a denial of due process of law to hold them to the deadline. The Court did not reach this issue of constitutional law, simply ruling instead that it was reasonable for the trial court to deny the plaintiffs’ claim because of the vague and conflicting testimony.

The plaintiffs also claimed that the zoning administrator violated a constitutional obligation “to provide assistance to all their citizens” under Part I, Article 1 of the New Hampshire Constitution by failing to provide “basic information concerning an abutter’s development plan and the basic permit and appeal process.” The Court reviewed the line of cases, beginning with Carbonneau v. Rye, 120 N.H. 96, 99 (1980), which addresses the duty of municipalities to reasonably assist property owners with the approval process for development. The Court then stated: “While we have no doubt that the constitutional duty imposed upon municipalities to provide assistance to their citizenry has relevance when an abutter or interested resident inquires about a proposed project, we cannot accept the scope of the duty the petitioners seek to impose in this case.” The plaintiffs did not allege that regulations or files were withheld, nor did they point to any particular question that the zoning administrator failed to help them with. “On this record, we cannot endorse imposing upon the zoning administrator a constitutional duty to have taken some initiative to educate Holloway and Kelsey about the pendency of the project and about the permit and appeal process.”

Municipal officials and staff have been on notice for many years that they have a constitutionally based duty to assist property owners with the application processes for local land use approvals. This case points out that a corresponding duty exists for dealings with abutters and others interested in proposed projects.

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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