Accurate Transport, Inc. v. Town of Derry

ZBA Did Not Exceed Authority by “Converting” Appeal
New Hampshire Supreme Court, No. 2014-512
Tuesday, August 11, 2015

Accurate Transport sought to operate a Dumpster Depot in the Town’s Industrial III zoning district. On June 19, 2013, the planning board voted to accept jurisdiction of the site plan application, although the motion to approve the plan was continued until August 21. Prior to the June 19 hearing, a technical review committee had reviewed the proposed site plan, and the code enforcement officer, a member of the committee, had expressed his opinion at that time that the proposed use of the property was permitted.

On August 21, the application was approved, and a written decision issued on August 28. On September 13, an abutter filed an administrative appeal with the ZBA. The stated purpose of the appeal was to demonstrate that the code enforcement officer’s decision that the use was permitted by zoning was in error. On October 31, the ZBA determined that an appeal from the code enforcement officer’s decision was untimely. However, the ZBA determined that the substance of the appeal contained questions about the planning board’s interpretation of the zoning ordinance—an appeal that would be timely—and therefore “converted” it to an appeal of the planning board’s decision. In deciding that appeal on November 7, the ZBA determined that the planning board had erred and, therefore, Accurate Transport could not operate the Dumpster Depot. On appeal to the superior court, the judge ultimately determined that the appeal was meant to challenge the code enforcement officer’s determination of June 19, which meant, pursuant to local ordinance, that the abutter was required to appeal within 20 days. Therefore, the judge decided that the appeal was untimely.

On appeal to the New Hampshire Supreme Court, the Court first determined that the ZBA did have the power to “convert” the abutter’s appeal of the code enforcement officer’s decision to an appeal of the planning board’s decision. RSA 674:33 gives the ZBA broad authority to hear and decide appeals on subjects within its jurisdiction. Despite the fact that the abutter’s stated purpose was to appeal the code enforcement officer’s decision, the body of the appeal referenced and challenged the planning board’s determinations on June 19 and August 21 as well. Because such an appeal is within the ZBA’s jurisdiction, it had the ability to consider it an as appeal of the planning board’s decision, including making a determination of whether the proposed use was permitted under any zoning provision, not just the provision referenced in the appeal. It was immaterial that the ZBA does not have the explicit statutory to “convert” an appeal.

Second, the Court determined that the abutter’s appeal was timely. Because the ZBA determined that the abutter’s appeal was actually from the planning board’s decision on August 21, the abutter had 20 days, per town ordinance, from the written decision, which was issued on August 28. Relying on RSA 676:5 and the case of Atwater v. Town of Plainfield, 160 N.H. 503 (2010), the Court determined that the June 19 decision was not an appealable decision of the planning board under RSA 676:5, III because the board did not make a decision interpreting zoning at that hearing. Instead, the June 19 decision was merely a procedural decision to accept jurisdiction. Although there was some discussion about whether the proposed use was allowed, the ultimate discussion and decision was tabled until August 21, at which time the planning board voted to approve the application. Thus, when the August 28 decision was issued, the abutter had 20 days to appeal. Furthermore, the Court stated that when the planning board accepted jurisdiction on June 19, it did not also “accept” the code enforcement officer’s “decision” that the use was permitted. The code enforcement officer never made an administrative decision; he instead simply gave his opinion, as part of the technical review committee, that the use would comply with zoning.

Finally, the Court did not review the validity of the ZBA’s decision because the petitioners did not properly challenge the merits of the ZBA’s decision.

Learn More in Court's Decision.