Daniel G. Busa & a. v. Town of Auburn

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2022-0439, Daniel G. Busa & a. v. Town of
Auburn, the court on June 22, 2023, issued the following order:

The court has reviewed the written arguments, oral arguments, and the
record submitted on appeal, and has determined to resolve the case by way of
this order. See Sup. Ct. R. 20(2). The plaintiffs, Daniel and Marjorie Busa,
appeal an order of the Superior Court (St. Hilaire, J.) granting the Town of
Auburn’s (Town) motion to dismiss the plaintiffs’ petition for writ of mandamus
for failing to exhaust their administrative remedies. The plaintiffs argue that
the trial court erred because the Auburn Board of Selectmen (Board) failed to
issue a decision on their 2021 application to unmerge their lots, and thus, they
could not exhaust their administrative remedies by appealing to the Zoning
Board of Adjustment (ZBA).

We conclude that the Board did in fact reach a decision that could have
been appealed to the ZBA pursuant to RSA 674:39-aa, III (Supp. 2020)
(amended 2021). See RSA 674:39-aa, III (“All decisions of the governing body
may be appealed in accordance with the provisions of RSA 676.”). In 2019 and
2021, the plaintiffs applied to the Board to unmerge their lots pursuant to RSA
674:39-aa. As relevant here, in its 2021 decision the Board determined that
the “2019 decision was a final decision that could have, but was not, appealed
by the [plaintiffs].” Consequently, the Board determined that the plaintiffs
“cannot now challenge” its prior decision that the lots were voluntarily merged.
It therefore concluded, “[a]s a result, this Board will not take any action on the
current application by the [plaintiffs] as the issue has already been acted on in
2019.”

When determining whether an agency’s decision “‘constitutes a final
administrative disposition of the issue,’” we have previously held that “‘the crux
of the matter is the practical impact of . . . the action.’” Appeal of Countrywide
Home Loans, 163 N.H. 139, 143 (2011) (brackets omitted) (quoting New
Hampshire Bankers Ass’n v. Nelson, 113 N.H. 127, 130 (1973)). The plaintiffs
attempt to distinguish Appeal of Countrywide Home Loans by arguing that it
involved our review of an agency decision following the agency’s investigation
and examination of the facts; whereas here, the Board “made no such
investigation or review of the 2021 Application” before issuing its decision. We
have never held that whether an agency conducts an investigation or engages
in fact finding prior to reaching its decision is relevant to whether an agency’s
action or inaction constitutes a final decision. See id. Here, our conclusion is
consistent with our holding in Appeal of Countrywide Home Loans. The
Board’s statement that it “will not take any action on the current application”
provided its final decision denying the plaintiffs’ requested relief. See id.

In addition, assuming the argument is preserved for our review, we are
unpersuaded by the plaintiffs’ contention that it would have been “futile” to
appeal to the ZBA. As previously detailed, the Board articulated the legal
grounds for its decision to deny the plaintiffs’ application. Thus, even if we
credit the plaintiffs’ argument that the Board was bound by RSA 676:3, I
(2016), the Board satisfied the statutory requirements. Moreover, nothing in
the relevant statutory framework foreclosed an appeal by the plaintiffs to the
ZBA to review the merits of that decision. See RSA 676:5 (2016) (“Such appeal
shall be taken within a reasonable time, as provided by the rules of the board,
by filing with the officer from whom the appeal is taken and with the board a
notice of appeal specifying the grounds thereof.” (emphasis added)).

We have frequently reiterated that a writ of mandamus will not be issued
“where the remedy by appeal or error to another administrative board or
tribunal has not been exhausted.” Bosonetto v. Town of Richmond, 163 N.H.
736, 746 (2012) (quotation omitted). In this case, it is undisputed that the
plaintiffs failed to timely appeal both decisions of the Board to the ZBA as set
forth in RSA 674:39-aa, III. Consequently, they have failed to exhaust their
administrative remedies and mandamus relief is not warranted under these
circumstances. Id. Indeed, the plaintiffs conceded at oral argument that, if we
conclude that the Board rendered a final decision in 2021, the plaintiffs cannot
prevail in this appeal. In light of our conclusion, we therefore affirm the trial
court’s decision granting the Town’s motion to dismiss and need not address
the plaintiffs’ remaining arguments concerning the underlying merits of the
plaintiffs’ applications to the Board. Finally, the plaintiffs’ request for
attorney’s fees and costs is denied because the plaintiffs are not the “prevailing
party.” See Sup. Ct. R. 23.

Affirmed.

MACDONALD, C.J., and HICKS, BASSETT, HANTZ MARCONI, and
DONOVAN, JJ., concurred.

Timothy A. Gudas,
Clerk

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