New Hampshire Municipal Association
New Hampshire Municipal Association

Court Update

RSA 674:41 appeals: Strict compliance with appeal procedures is required

Bosonetto v. Richmond
No. 2011-183, 6/29/2012

This is another in a series of cases in recent years illustrating the importance of strict compliance with statutory deadlines in land use appeals. Under RSA 674:41, I no building permit may be issued for the erection of a building for property on a Class VI or private road unless the governing body authorizes it. If the governing body denies a permit, the owner may appeal to the zoning board of adjustment under RSA 674:41, II, under which the ZBA "may make any reasonable exception" and authorize the permit if certain criteria are met. Bosonetto was denied a permit to replace an existing mobile home with a larger three-bedroom house in a different location on property situated on a private road, and he appealed to the ZBA. After a public hearing and site visit, the ZBA deliberated the matter on August 10, 2009 and voted to deny the application "based on the criteria of RSA 674:41." Bosonetto was present. A week later the ZBA convened and adopted a written notice of decision on the case, which was placed on file for public inspection the following day, August 18, 2009. On August 24 a clerk provided Bosonetto with written instructions for further appeal, which stated that a motion for rehearing "must be made within 30 days after the decision is filed and first becomes available for public inspection." The instructions also recommended that applicants familiarize themselves with the New Hampshire statutes concerning planning and zoning before pursuing appeals. Bosonetto filed a motion for rehearing on September 14, 2009, more than 30 days after the oral denial of the application, but less than 30 days after the ZBA adopted a written notice of decision. The ZBA denied the motion on the ground that it was not timely filed under RSA 677:2, which requires that motions for rehearing be filed "within 30 days after any order or decision of the zoning board of adjustment…." [The written instructions provided to Bosonetto accurately reflected what RSA 677:2 had provided prior to January 1, 2001.]

Bosonetto filed suit claiming (1) his request for rehearing was in fact timely under RSA 677:2; and (2) the Town misled him about the deadline and should be prohibited by "estoppel" from relying on the true deadline. The suit also sought a declaratory judgment that (3) he had a constitutional vested right to replace the mobile home with a house; and (4) RSA 674:41 is unconstitutional insofar as it applies to lawful preexisting uses. The trial court denied relief on all counts.

On appeal the Supreme Court upheld the ZBA and the trial court. First, the Court rejected Bosonetto's interpretation of RSA 677:2. The statute allows a party to amend a previously filed motion for rehearing up to 30 days after the written decision is produced, but the initial motion must be filed within 30 days of the vote to approve or disapprove an application.

Next the Court rejected Bosonetto's estoppel claim. In some cases, when a municipal official makes an incorrect representation of fact, the official will later be prevented from denying the truth of the misstatement when another party has reasonably relied on the misstatement. (See "Understanding the Concept of Municipal Estoppel," New Hampshire Town and City, July/August 2008, available here.) In this instance the written advice to become familiar with the statutes indicated that the misstatement of the law in the appeal directions was not intended to induce reliance by Bosonetto or other applicants. The Court also noted that timely filing is an issue of subject matter jurisdiction, which cannot be conferred by estoppel.

Turning to the constitutional claims, the Court first noted that Bosonetto had failed to exhaust available administrative remedies when he filed a late motion for rehearing. A party will be allowed to raise issues outside the administrative process only when they are "peculiarly suited to judicial rather than administrative treatment and no other adequate remedy is available." Here the vested rights claim was that the mobile home was a prior existing nonconforming use, and the replacement house would merely constitute a continuation of the use. The Court found that this would involve the factual issue of whether the house would be a substantial expansion of the previous use, an issue that is not peculiarly suited to the judicial process and therefore must be resolved in the administrative process. Without a finding on the expansion question, the claim of unconstitutionality of RSA 674:41 is purely hypothetical and not proper for a declaratory judgment.

< Back to Court Update Home