Paul M. Monzione v. Town of Alton

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2023-0122, Paul M. Monzione v. Town of Alton,
the court on May 13, 2024, issued the following order:

The court has reviewed the written 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 plaintiff, Paul M. Monzione, appeals the order of the
Superior Court (Ignatius, J.) affirming decisions of the Town of Alton Zoning
Board of Adjustment (ZBA): (1) granting a special exception to the intervenors,
John A. Goodrich and Lisa M. Nicastro, for a contractor’s yard; and (2) denying
his motion for a rehearing. The plaintiff argues that the trial court erred by
failing to find that: (1) the ZBA erroneously failed to require compliance with
Section 462(G) of the town’s zoning ordinance; and (2) the ZBA violated his
rights to procedural due process when it increased, from ten to twelve, the
number of pieces of equipment it would allow on the property, without
affording him an opportunity to object. We affirm.

The plaintiff first argues that that “the provisions of [Section] 462 [of the
town’s zoning ordinance] create[ ] a higher bar for the applicant to meet related
to the impacts on abutters created by a heavy commercial use with large trucks
and equipment in a residential zone.” The trial court found that the plaintiff
failed to preserve this issue for review because he did not raise it in his motion
for rehearing. In an appeal to the superior court from a ZBA decision, “no
ground not set forth in [the motion for rehearing] shall be urged, relied on, or
given any consideration by [the] court unless the court for good cause shown
shall allow the appellant to specify additional grounds.” RSA 677:3, I (2016).
This rule “is based upon the principle that the local board should have the first
opportunity to pass upon any alleged errors in its decisions so that the court
may have the benefit of the board’s judgment in hearing the appeal.” Bartlett
v. City of Manchester, 164 N.H. 634, 640 (2013) (quotation omitted).

The plaintiff argues that he set forth this ground in his motion for
rehearing by stating that a rehearing would allow the board to “plac[e] a
condition on the approval that would substantially limit the number of pieces
of equipment to be parked on the property.” However, the record shows that
the plaintiff did not argue in his motion for rehearing that, by failing to place a
condition on approval limiting the number of pieces of equipment allowed on
the property, the ZBA erroneously failed to require the applicants’ compliance
with Section 462(G) of the zoning ordinance. The trial court further found that
the plaintiff failed to show good cause to argue additional grounds not set forth
in his request for rehearing. Accordingly, we agree with the trial court that the
plaintiff did not preserve this issue for review.

The plaintiff next argues that the trial court erred by failing to find that
his procedural due process rights were violated when the ZBA increased, from
ten to twelve, the number of pieces of equipment it would allow on the
property, without affording him an opportunity to object. As the appealing
party, the plaintiff 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 plaintiff’s arguments, the relevant law, and the record
submitted on appeal, we conclude that the plaintiff has not demonstrated
reversible error. See id.

Affirmed.

MacDonald, C.J., and Bassett, Hantz Marconi, and Donovan, JJ.,
concurred.

Timothy A. Gudas,
Clerk

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