New Hampshire Municipal Association
New Hampshire Municipal Association

Court Update

Sign Case Highlights Process Used in Court Review of ZBA Decision

Bartlett Board of Selectmen v. Bartlett Zoning Board of Adjustment
No. 2012-490, 4/12/2013

River Run Co., Inc. (River Run) operates a resort called “Attitash Mountain Village” in Bartlett. The facilities are located on several lots recognized for property tax purposes, but all of the facilities and all of the lots are owned by River Run. River Run applied for and received a sign permit from the selectmen for a sign advertising “The Suites at Attitash Mountain Village.” Subsequently a smaller additional sign was added underneath the approved sign reading “Registration .3 miles back on left.” The registration office is located on land owned by River Run, but not on the lot occupied by the Suites at Attitash Mountain Village.
 
The board of selectmen notified River Run that the additional sign was a violation of the Town’s sign ordinance and denied an application to approve it because it directed people to a location other than the lot where it was erected. River Run appealed the denial to the ZBA, arguing that the small additional sign was in fact a “directory sign” that simply moved people within the overall resort complex and thus was exempt from regulation under the terms of the sign ordinance.
 
The ZBA granted the appeal and reversed the decision of the selectmen, relying on a finding that the sign was a directory sign. The ZBA also discussed whether the sign was an “off premise” sign, noting that the ordinance did not define the term “premises” and thus could easily be read to mean the “total holdings of the landowner.” The ZBA denied the request for rehearing of the selectmen and they appealed to the Superior Court. The Superior Court determined that the sign was not an “off-premise” sign and upheld the ZBA determination. This appeal followed.
 
The selectmen argued that the Superior Court went beyond its jurisdiction because it upheld the ZBA on a ground not set forth in the Motion for Rehearing. It further argued that the court erred by construing the term “premises” to mean a unified vacation resort complex located on multiple tax lots, and by defining the sign as a “directory sign” exempt from the terms of the sign ordinance.
 
The Supreme Court upheld the decision of the trial court and the ZBA, and in so doing offered helpful insight into the process of review.
 
It rejected the selectmen’s argument that the Superior Court could not uphold a decision based upon a ground not set forth in a Motion for Rehearing. Here, River Run was the prevailing party, and thus under no obligation to file a Motion for Rehearing to set forth all of the possible arguments which might support the decision rendered by the Board. Instead, a Motion for Rehearing is designed to identify alleged errors in a decision. Thus, prevailing parties need not file documents with a ZBA in an effort to add additional reasons why they might agree with a decision in their favor.
 
The Supreme Court also clarified that the interpretation of a zoning ordinance is a question of law, rather than a question of fact. In this case, because the term “premises” was not defined in the text of the ordinance, the Court was free to look to “the common and approved usage of the word.” In previous cases, the Court had construed the term to mean the “place of business of an enterprises or institution.” In this situation, it was clear that the entire resort location was a place of business, and thus the term “premises” need not relate to a single tax lot.
 
Thus, if the drafters of an ordinance wish to have the words they use limited to a particular meaning, they must be careful to define those terms expressly within the language of the ordinance.

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