A Notice of Violation can Serve as the Initiation of an Enforcement Action and Also as the Basis for an Administrative Appeal

New Hampshire Alpha of SAE Trust v. Town of Hanover
New Hampshire Supreme Court Case No. 2020-0034
Tuesday, May 25, 2021

In the latest ruling from the long-running battle between the New Hampshire Alpha Chapter of Sigma Alpha Epsilon, Dartmouth College, and the Town of Hanover, the New Hampshire Supreme Court parsed the language of the statute conferring jurisdiction on the ZBA to determine that the ZBA had subject matter jurisdiction over SAE’s appeal.

As background, in 2016, Dartmouth College notified the Sigma Alpha Epsilon fraternity that they are officially derecognized by Dartmouth College, and that effective March 15, 2016 as a consequence of its suspension by the national organization. Subsequently, Dartmouth notified the Hanover Planning & Zoning Office of the suspension.

The zoning administrator for the Town issued a “Notice of Zoning Violation” to SAE, informing SAE that the SAE facility is no longer being operated in conjunction with an institutional use and, therefore, is in violation of the zoning ordinance. That notice also informed SAE of the penalties for violating the zoning ordinance.

SAE appealed the notice to the ZBA, and subsequent appeals resulted in the New Hampshire Supreme Court issuing New Hampshire Alpha of SAE Trust v. Town of Hanover, 172 N.H. 69 (2019) (SAE I), which included a remand for further proceedings. While that case was pending before the ZBA, SAE challenged the ZBA’s ability to have subject matter jurisdiction in a filing at the Superior Court. SAE alleged, in part: (1) the zoning administrator’s notice commenced an informal enforcement proceeding against SAE; (2) SAE’s challenge was to the zoning administrator’s decision to institute an enforcement proceeding, not to the construction, application or interpretation of the ordinance; (3) the courts, and not the ZBA, have exclusive jurisdiction to adjudicate alleged violations of zoning ordinances.

On appeal, the New Hampshire Supreme Court held that the ZBA may hear and decide an administrative appeal of a notice of violation to the extent that it is alleged that the administrative officer committed an error involving the construction, interpretation or application of a zoning ordinance, but may not hear and decide issues arising from the notice of violation beyond contesting an officer’s construction, interpretation or application of a zoning ordinance. In this case, SAE’s appeal to the ZBA sought reversal of the zoning administrator’s decision that SAE’s property is in violation of the zoning ordinance by alleging that the zoning administrator erred in construing, interpreting or applying the terms of the ordinance. Therefore, the ZBA had subject matter jurisdiction because the issue was not an enforcement action, but merely the administrative official’s interpretation of the zoning ordinance.


Additional Information: 

Practice Pointer:  Municipalities must be aware that because a ZBA has limited jurisdiction, when they are using a notice of violation as both the initiation of an enforcement action and also as the basis for an administrative appeal, that it is possible for an aggrieved party to appeal that interpretation prior to any kind of court review of an enforcement action.