Bradley M. Weiss & a. v. Town of Sunapee

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THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

Sullivan
No. 2022-0309

BRADLEY M. WEISS & a.

v.

TOWN OF SUNAPEE

Argued: February 23, 2023
Opinion Issued: August 23, 2023

Schuster, Buttrey & Wing, P.A., of Lebanon (Barry C. Schuster on the
brief and orally), for the plaintiffs.

Mitchell Municipal Group, P.A., of Laconia (Laura Spector-Morgan on the
brief and orally), for the defendant.

MACDONALD, C.J. The plaintiffs, Bradley M. Weiss and Cathleen A.
Shea, appeal an order of the Superior Court (Tucker, J.) granting the motion to
dismiss filed by the defendant, Town of Sunapee (Town). The trial court
determined that, because the plaintiffs failed to request a second rehearing
from the Town’s Zoning Board of Adjustment (ZBA), the court did not have
subject matter jurisdiction over their appeal. We reverse and remand.
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The following facts are supported by the record. The plaintiffs sought a
variance for an “east side setback” for their residence in Sunapee. On April 1,
2021, the ZBA held a hearing on the application. The hearing was held
remotely, consistent with then-existing COVID-19 pandemic-related protocols.
The ZBA voted 3-2 to deny the application. Members who voted against
granting the variance cited insufficient evidence of unnecessary hardship and
found the variance would not be in keeping with the spirit of the ordinance.
They also expressed concern about health and safety issues if the variance
were to be granted. The ZBA did not issue a written decision confirming the
action taken at the April 1, 2021 hearing until August 3, 2021, which the Town
concedes was “not . . . timely.” It is undisputed that the ZBA approved the
minutes of the April 1 meeting on May 25, 2021.

On April 27, 2021, the plaintiffs filed a timely motion for rehearing,
seeking review of the April 1 decision, which the ZBA granted. In the motion,
the plaintiffs asserted that their evidence “demonstrated that granting the
variance would do substantial justice, improve property values and be in the
public interest.” They argued that the ZBA’s decision “made passing reference
to the ‘spirit of the ordinance’ but primarily focused on the ‘hardship’ criterion”
and that its decision was “in error because the application does observe the
spirit of the ordinance and satisfies the hardship criterion.”

On June 17, 2021, the ZBA conducted a rehearing and again voted to
deny the variance. The ZBA members found there was a lack of proof that the
variance was not contrary to the public interest and reiterated their previous
rationale that the variance would not be in keeping with the spirit of the
ordinance and that there was insufficient evidence of unnecessary hardship.
The ZBA issued its written decision from the June 17, 2021 rehearing on June
25, 2021.

The plaintiffs appealed to the superior court. In their complaint, the
plaintiffs asserted that, during deliberation at the April 1 meeting, “some board
members explained that the basis for the ruling was that the application failed
to satisfy the criteria for ‘hardship,’ ‘spirit of the ordinance’ and ‘public
interest,’” and that, at the June rehearing, “the board again denied the variance
relying on the same criteria, namely ‘hardship,’ ‘spirit of the ordinance’ and
‘public interest.’” Thus, the plaintiffs asserted, the ZBA’s decision “denied the
variance application on the same grounds as it had previously and no further
motion for rehearing was required,” but, “[t]o the extent that the board may
claim that any new issues arose,” they sought “for good cause to have such
issues consolidated” in the appeal.

The Town moved to dismiss, arguing that because “new issues were
raised by the board in its second denial,” and “a second motion for rehearing is

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a jurisdictional prerequisite to filing an appeal with the superior court,” the
court lacked jurisdiction over the appeal and could not “grant any request to
add additional grounds to the appeal.” The trial court agreed with the Town,
concluding that “a second motion for rehearing was required” and, in its
absence, the court “[did] not have subject matter jurisdiction over the appeal.”
The plaintiffs moved for reconsideration, which the trial court denied. This
appeal followed.

II

Whether the plaintiffs were required to file a second motion for rehearing
to perfect their appeal to superior court is controlled by statute. McDonald v.
Town of Effingham Zoning Bd. of Adjustment, 152 N.H. 171, 174 (2005). We
review the superior court’s interpretation of the applicable statute de novo. Id.
We look first to the language of the statute itself and, if possible, construe that
language according to its plain and ordinary meaning. Anderson v. Robitaille, 172 N.H. 20, 22 (2019). We give effect to every word of a statute whenever
possible and will not consider what the legislature might have said or add
language that the legislature did not see fit to include. In re J.P., 173 N.H.
453, 460 (2020).

RSA 677:3 provides:

No appeal from any order or decision of the zoning board of
adjustment, a board of appeals, or the local legislative body shall
be taken unless the appellant shall have made application for
rehearing as provided in RSA 677:2; and, when such application
shall have been made, no ground not set forth in the application
shall be urged, relied on, or given any consideration by a court
unless the court for good cause shown shall allow the appellant to
specify additional grounds.

RSA 677:3, I (2016). Thus, in order to perfect an appeal to the superior court,
the statute requires that the appellant first move for rehearing with the ZBA
within 30 days after the ZBA’s decision. See RSA 677:2 (2016). That
requirement, once met, vests the superior court with subject matter
jurisdiction over the appeal. However, in such an appeal, “no ground not set
forth in the application” for rehearing “shall be urged, relied on, or given any
consideration by a court unless the court for good cause shown shall allow the
appellant to specify additional grounds.” RSA 677:3, I. By this plain language,
the appellant is thereby limited in its appeal to the grounds set forth in the
motion for rehearing unless good cause is shown why the court should allow
additional grounds.

As we explained in Dziama v. City of Portsmouth, when the bases for
aggrievement change following a ZBA’s decision on rehearing, a new motion for

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rehearing raising such new issues is required before an appeal to the superior
court challenging those new bases may be made. Dziama v. City of
Portsmouth, 140 N.H. 542, 545 (1995). Otherwise, the court is limited to
consideration of the errors alleged in the first rehearing motion. Id. Thus, in
the absence of a second motion for rehearing allowing the ZBA the first
opportunity to pass upon any alleged errors in its decision, the plaintiff has not
preserved the new issues for appellate review. Id.

As applicable here, following the ZBA’s April 1 decision, the plaintiffs
timely moved for rehearing based on two grounds set forth in the decision —
the ZBA’s findings that there was insufficient evidence of unnecessary hardship
and that the variance would not be in keeping with the spirit of the ordinance.
Accordingly, the superior court has jurisdiction over the appeal and may review
those issues on appeal. See id. The court’s review is limited, however, to the
grounds set forth in the first motion for rehearing, see id., unless for good
cause shown the court allows the plaintiffs to specify additional grounds. See
RSA 677:3, I.

The plaintiffs argue that they demonstrated good cause, alleging, inter
alia, that when the ZBA denied their variance request on rehearing on June 17,
2021, they “were faced with a dilemma.” They contend that there was no
written decision from the ZBA’s April 1 meeting available to them, and that
they were “relying on their notes and recollections from” the April meeting. The
plaintiffs state that they “knew that the zoning board engaged in a discussion
of hardship and how health and safety might be affected by granting the
variance.” They also allege that “[a]s of early July 2021” the ZBA “had still not
issued a written decision for its April 1st vote,” and the written decision from
the June 17 hearing “was never provided to the plaintiffs until they received the
Certified Record.” Because the trial court dismissed their appeal for lack of
subject matter jurisdiction, however, it did not consider whether the plaintiffs
had shown good cause to specify additional grounds.

We hold that, pursuant to RSA 677:3, the plaintiffs perfected their appeal
to the superior court from the ZBA’s April 1 denial by timely moving for
rehearing. Accordingly, we reverse the trial court’s ruling that it lacked subject
matter jurisdiction over the plaintiffs’ appeal and remand for further
proceedings consistent with this decision, including whether for good cause
shown the plaintiffs should be allowed to specify additional grounds. See RSA
677:3, I.

Reversed and remanded.

HICKS, BASSETT, and DONOVAN, JJ., concurred; HANTZ MARCONI, J.,
concurred in part and dissented in part.

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 HANTZ MARCONI, J., concurring in part and dissenting in part. I agree
with the majority that, because the plaintiffs timely moved for rehearing, the
superior court has jurisdiction over the appeal. However, under the
circumstances presented here where, due to the untimeliness of the ZBA’s
written decision from the April 1, 2021 hearing, there was no opportunity for
the plaintiffs to verify or compare the official written decisions of the ZBA, I
would hold that no second motion for rehearing was necessary and I would find
good cause as a matter of law.

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