William D. Nicosia v. Town of Candia

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2019-0313, William D. Nicosia v. Town of
Candia, the court on January 31, 2020, issued the following
order:

Having considered the briefs and record submitted on appeal, we
conclude that oral argument is unnecessary in this case. See Sup. Ct. R. 18(1).
We affirm.

The petitioner, William D. Nicosia, appeals an order of the Superior Court
(Wageling, J.) upholding a decision of the zoning board of adjustment (ZBA) for
the respondent, the Town of Candia, denying his application for a variance. On
appeal, the petitioner does not challenge the denial of his application for a
variance. Instead, he argues that the trial court erred by ruling that (1) the
town was not estopped, pursuant to the so-called doctrine of systematic
nonenforcement, see Alexander v. Town of Hampstead, 129 N.H. 278, 283
(1987) (observing, in dicta, that “it is conceivable that a pattern of
nonenforcement would be so systematic as to constitute ratification of a policy
of nonenforcement”), from enforcing its zoning ordinance so as to prohibit him
from operating his “hired hauler” trucking business from his residential
property; (2) the town did not violate the New Hampshire Constitution by failing
to adequately explain that he could file an administrative appeal to the ZBA of
the determination that his business constituted a “heavy equipment operation”
requiring a variance; and (3) his argument that the town was barred from
classifying his use as a “heavy equipment operation” under the doctrine of
administrative gloss was moot.

At the outset, we agree with the town that the petitioner’s final argument
is not properly before us. The record reflects that the petitioner sought the
variance after the town’s building inspector denied his request for a “use
permit” to operate his trucking business from his property on the basis that
the business amounted to a “[c]raftsman’s or contractor’s shop including a . . .
heavy equipment operation,” a use not permitted within the town’s residential
zoning district. In his motion for rehearing before the ZBA, the petitioner
argued, in part, that his use did not constitute a “heavy equipment operation,”
and that the town was prohibited from classifying his business as a “heavy
equipment operation” pursuant to the doctrine of administrative gloss.

In the trial court, the petitioner continued to argue that his use did not
constitute a “heavy equipment operation” pursuant to the doctrine of
administrative gloss, and asserted that “the most fair and just remedy would be

to remand to the ZBA [to allow] an administrative appeal of the Town’s
classification of his business use.” He contended that “[t]he result of the
administrative appeal may result in [him] not requiring a variance at all (e.g., if
the ZBA were to find . . . that . . . by simply parking his vehicles on his
[p]roperty, [he] is not running a business on same).” The trial court reasoned
that, because the ZBA ultimately ruled that a variance was required not
because the use constituted a “heavy equipment operation,” but because it was
a commercial trucking operation not allowed under the town’s permissive
zoning ordinance, the request to remand the matter in order to allow an
administrative appeal was moot. The trial court observed that, “for all practical
purposes, [the] [p]etitioner has already successfully challenged the
classification of his business as a ‘heavy equipment operation,’” and that he
had not challenged the ZBA’s determination that he needed a variance because
his use constituted an unpermitted commercial trucking business.

On appeal, the petitioner argues that, in ruling that his request to
remand was moot, the trial court “improperly assumed that [his] administrative
appeal would be limited to arguing that his use is a ‘commercial motor vehicle
operation’ rather than ‘heavy equipment operation.’” Because the petitioner
contends that he “would have been able to argue [in an administrative appeal]
that he does not require a variance at all, since all of his business occurs off-
site,” he argues that the trial court erred by determining that his request to
remand the case was moot. According to the petitioner, the trial court’s
implicit conclusion that “an administrative appeal would be meaningless
because a variance would still be required” was improper because there was an
insufficient factual record on which to make that determination. The petitioner
contends that, “even if [his] use could properly be considered a ‘heavy
equipment operation[,]’ the Town’s practice of nonenforcement has placed an
administrative gloss on that term.”

“To preserve issues for an appeal to the Supreme Court, an appellant
must have given the [trial] court the opportunity to consider such issues; thus,
to the extent that the [trial] court, in its decision, addresses matters not
previously raised in the case, a party must identify any alleged errors
concerning those matters in a motion [for reconsideration] to preserve such
issues for appeal.” Super. Ct. Civ. R. 12(e); see N.H. Dep’t of Corrections v.
Butland, 147 N.H. 676, 679 (2002). In this case, the trial court specifically
determined that the petitioner’s request to remand the case so as to allow him
to take an administrative appeal and argue that his use was not a “heavy
equipment operation” pursuant to the administrative gloss doctrine, was moot
because the ZBA, within the context of the variance application, had already
determined that his use was, in fact, a commercial trucking use requiring a
variance, and because the petitioner had not challenged the merits of that
determination. The petitioner did not bring the trial court’s purported errors in
its mootness ruling to its attention in a motion for reconsideration. See
Butland, 147 N.H. at 679. Under the circumstances, we conclude that the

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petitioner’s argument that the trial court erred by determining that his
administrative gloss argument is moot is not preserved.

As the appealing party, the petitioner has the burden of demonstrating
reversible error. Gallo v. Traina, 166 N.H. 737, 740 (2014). Based upon our
review of the trial court’s well-reasoned order, the petitioner’s challenges to it,
the relevant law, and the record submitted on appeal, we conclude that the
petitioner has not demonstrated reversible error as to any of his remaining
arguments. See id.

Affirmed.

Hicks, Bassett, Hantz Marconi, and Donovan, JJ., concurred.

Timothy A. Gudas,
Clerk

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