Where Town Ordinance Combined a Special Exception Process with Excavation Permitting under RSA 155-E, with the ZBA Acting as Regulator, Appeals were Governed by the 10-Day Motion for Rehearing Deadline in RSA 155-E:9

Juliana Lonergan & a. v. Town of Sanbornton
New Hampshire Supreme Court Case No. Belknap 2022-0142
Wednesday, May 31, 2023

This case went to the New Hampshire Supreme Court on appeal from the Superior Court.

R.D. Edmunds Land Holdings, LLC (hereinafter “the intervenor”) owns a 19-acre tract of land in Sanbornton’s General Agricultural District. In July 2020, they applied to the Zoning Board of Adjustments (hereinafter ZBA) for a special exception to the town zoning ordinance (hereinafter “ordinance”) to operate a gravel pit excavation site upon this tract. In Sanbornton, the ZBA may grant special exceptions to allow uses of land for excavation of earth materials within certain statutory restrictions. In August of the same year, the ZBA held a public hearing on the application, at which Juliana and David Lonergan (hereinafter “the plaintiffs”), abutters of the tract in question, expressed concerns that this excavation site would create noise and dust and affect traffic and the nearby aquifer; the ZBA decided they could not rule without additional information. Two hearings later, in February 2021, the ZBA granted the intervenor the special exception; in March 2021 the plaintiffs filed with the ZBA for a rehearing and, when the ZBA denied this, appealed the ZBA’s decision to the Superior Court, which denied it and affirmed the ZBA’s decision. The plaintiffs then appealed the Superior Court’s decision to the Supreme Court.

The Town of Sanbornton and the intervenor moved to dismiss the appeal, arguing that the Supreme Court lacked subject matter jurisdiction under RSA 155-E:9 because the plaintiffs had not filed for rehearing in a timely manner. The Supreme Court noted that a party may challenge subject matter jurisdiction at any time during the proceedings, including on appeal. In this instance, the town ordinance designated the ZBA as the regulator of excavation permits under RSA chapter 155-E and it incorporated the excavation permitting process into the special exception process allowing for a one-time permit process benefiting all parties. Thus, when the ZBA granted the special exception that also constituted the grant of an excavation permit under RSA chapter 155-E. Consequently, the timeliness of plaintiffs’ motion for rehearing was measured by a 10-day deadline specified under RSA 155-E:9 and not the 30-day deadline specified under RSA 677:2. Since the motion for rehearing was not submitted within 10 days of the ZBA’s decision, that rendered plaintiffs’ appeal untimely denying the Supreme Court subject matter jurisdiction to consider plaintiffs’ appeal.

The plaintiffs attempted to argue that the town meeting that designated the ZBA as the regulator was not duly warned and was thus invalid under RSA 155-E:1, III (a). However, under RSA 31:126, claims of statutory invalidity against municipal legislation are barred after five years, and the ZBA was made regulator more than five years prior to these proceedings, so the Court dismissed this argument. Additionally, the plaintiffs tried to claim that RSA 155-E:9 was not applicable to their untimely filing because RSA 155-E as a whole has to do with excavation permits, not special exceptions, and that this discrepancy meant that the notice of public hearing for the intervenor’s application constituted insufficient notice under RSA 676:7. The Court disagreed with this argument noting that RSA 676:7 only mandated notice of the time and place of the required public hearing and was silent on other information the notice must include.

The Court held that RSA 155-E:9 indeed applies to the plaintiffs’ appeal and that because they failed to file their appeal in a timely fashion, the ZBA and accordingly both Courts lack subject matter jurisdiction over it. The Supreme Court vacated the Superior Court’s order and remanded the issue with instructions for dismissal of the appeal.