Newfound Serenity, LLC v. Town of Hebron

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THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

Grafton
Case No. 2023-0153
Citation: Newfound Serenity, LLC v. Town of Hebron, 2024 N.H. 13

NEWFOUND SERENITY, LLC

v.

TOWN OF HEBRON

Submitted: November 8, 2023
Opinion Issued: April 3, 2024

Dale R. Spaulding, non-attorney representative appearing by approval of
the Supreme Court under Rule 33(2), on the brief, for the plaintiff.

Drummond Woodsum & MacMahon, of Manchester (HariNarayan
Grandy on the memorandum of law), for the defendant.

MACDONALD, C.J.

¶1 The plaintiff, Newfound Serenity, LLC, sought review of an adverse
Town of Hebron Planning Board decision. It appealed the Planning Board’s
decision to both the Housing Appeals Board (HAB) and the Town’s Zoning
Board of Adjustment (ZBA). The HAB dismissed the appeal as untimely. When
the ZBA concluded its review, the plaintiff filed a complaint in superior court,
seeking review of both the Planning Board and ZBA decisions. Based on the
HAB’s initial dismissal, the Superior Court (Bornstein, J.) dismissed the
plaintiff’s complaint in its entirety.

¶2 Because we conclude that the superior court’s dismissal is
inconsistent with the statutes governing appeals from planning board
decisions, we reverse.

I. Background

¶3 The following facts were found by the trial court or are otherwise
supported by the record. The plaintiff sought site plan approval from the
Town’s Planning Board for a seasonal recreational vehicle park. On April 6,
2022, the Planning Board denied the plaintiff’s site plan application based on
seven reasons.

¶4 On May 9, 2022, the plaintiff filed an appeal of the Planning Board’s
decision with the HAB. Because the appeal was filed outside the statutory
thirty-day appeal period, the HAB determined that it lacked jurisdiction and
dismissed the case on June 17, 2022. See RSA 677:15, I (2016); RSA 679:9, I
(Supp. 2023) (“Appeals to the [HAB] shall be consistent with appeals to the
superior court pursuant to RSA 677:4 through RSA 677:16.”). The plaintiff did
not appeal the HAB’s decision. See RSA 679:15 (Supp. 2023) (providing that
decisions of the HAB may be appealed to the supreme court).

¶5 The plaintiff also appealed the Planning Board’s decision to the
Town’s ZBA. On August 16, 2022, the ZBA overturned four of the Planning
Board’s reasons for denying the site plan application, upheld one reason, and
deemed that it did not have statutory authority to address the other two
reasons. On October 11, 2022, the ZBA denied the plaintiff’s request for a
rehearing.

¶6 On October 27, 2022, the plaintiff filed a complaint in superior court
appealing the decisions of the Planning Board and the ZBA. The Town moved
to dismiss. The Town argued that the plaintiff effectively bifurcated its initial
appeal such that the ZBA would review the Planning Board’s reasons for denial
related to the zoning ordinance and the HAB would review the reasons for
denial falling outside the ZBA’s jurisdiction. The Town asserted that because
two of the Planning Board’s reasons for denying site plan approval were
exclusively within the HAB’s statutory authority to review and because the HAB
dismissed the plaintiff’s appeal as untimely, and the plaintiff did not appeal the
dismissal to this court, the Planning Board’s decision as to those issues
became final. Therefore, the Town asserted, even if the superior court were to
reverse the ZBA’s decision, such a reversal would be moot because the
Planning Board’s denial based on the two other reasons would remain effective.
The Town also argued that because the plaintiff appealed the Planning Board

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decision in part to the HAB, the plaintiff waived its right to bring an action in
superior court. The trial court agreed with the Town and granted the motion to
dismiss. The plaintiff moved for reconsideration, which the trial court denied.
This appeal followed.

II. Analysis

¶7 On appeal, the plaintiff argues, among other things, that the trial
court erred: (1) when it ruled that, under RSA 679:7, the plaintiff waived its
right to bring an action in superior court; and (2) in determining that “any
decision that would be made with respect to the ZBA appeal is moot.” (Bolding
omitted.) Generally, when reviewing a trial court’s ruling on a motion to
dismiss, we consider whether the plaintiff’s allegations are reasonably
susceptible of a construction that would permit recovery. Riverbend Condo
Ass’n v. Groundhog Landscaping & Prop. Maint., 173 N.H. 372, 374 (2020).

¶8 Resolving the plaintiff’s appeal requires that we engage in
interpretation of statutes governing appeals from planning board decisions. St.
Onge v. Oberten, LLC, 174 N.H. 393, 395 (2021). We review the trial court’s
statutory interpretation de novo. Id. We first look to the language of the
statute itself, and, if possible, construe that language according to its plain and
ordinary meaning. Id. 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. Id. We do not construe
statutes in isolation; instead, we attempt to construe them in harmony with the
overall statutory scheme. Id.

¶9 RSA 677:15, I, provides that “[a]ny persons aggrieved by any
decision of the planning board concerning a plat or subdivision may present to
the superior court a petition, duly verified, setting forth that such decision is
illegal or unreasonable in whole or in part and specifying the grounds upon
which the same is claimed to be illegal or unreasonable.” See also RSA 679:9, I
(procedure for HAB appeals). “Such petition shall be presented to the court
within 30 days after the date upon which the board voted to approve or
disapprove the application.” RSA 677:15, I.

¶10 However, RSA 677:15, I, “shall not apply to planning board
decisions appealable to the board of adjustment pursuant to RSA 676:5, III.”
Id. Rather, RSA 677:15, I-a(a) provides that “[i]f an aggrieved party desires to
appeal a decision of the planning board, and if any of the matters to be
appealed are appealable to the board of adjustment under RSA 676:5, III, such
matters shall be appealed to the board of adjustment before any appeal is
taken to the superior court under this section.” RSA 677:15, I-a(a) (2016)
(emphasis added); see RSA 679:9, I.

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 [¶11] “If any party appeals any part of the planning board’s decision to
the superior court before all matters appealed to the board of adjustment have
been resolved, the court shall stay the appeal until resolution of such matters.”
RSA 677:15, I-a(a). “After the final resolution of all such matters appealed to
the board of adjustment, any aggrieved party may appeal to the superior court,
by petition, any or all matters concerning the subdivision or site plan decided
by the planning board or the board of adjustment.” Id. “The petition shall be
presented to the superior court within 30 days after the board of adjustment’s
denial of a motion for rehearing under RSA 677:3, subject to the provisions of
[RSA 677:15, I].” Id.

¶12 Thus, by their plain terms, the statutes require that issues arising
from a planning board decision that are appealable to the ZBA must be
resolved by the ZBA before an appeal can be taken to superior court or the
HAB. In this case, the ZBA finally resolved the plaintiff’s appeal with its
dismissal of the motion for rehearing on October 11, 2022. On October 27,
2022, the plaintiff filed its complaint in superior court appealing the Planning
Board and ZBA decisions. That complaint was otherwise timely and proper
under the statute.

¶13 The question then becomes: what is the effect of the plaintiff’s
initial appeal to the HAB? That appeal was filed more than thirty days after the
Planning Board’s decision, and, consequently, the HAB dismissed it as
untimely. The trial court effectively gave the HAB’s decision preclusive effect as
to both appeals from the Planning Board and the ZBA.

¶14 We conclude that the trial court’s decision is inconsistent with the
statutory scheme. Read as a whole, the applicable statutes contemplate final
resolution of zoning-related issues by the ZBA before an appeal of a planning
board decision to superior court (or the HAB) becomes timely. The objective is
plain: exhaustion of ZBA remedies avoids serial litigation and potentially
inconsistent outcomes arising from a single site plan application.

¶15 Therefore, in light of this objective and under the plain language of
the statutes, the plaintiff’s initial appeal to the HAB was not late; instead, it
was premature. Indeed, had the HAB accepted the initial appeal, it would have
been required to stay the matter pending the ZBA appeal. See RSA 677:15, I-
a(a). We decline to conclude, under these facts, that the dismissal of a
premature appeal by the HAB while the ZBA appeal was pending forecloses the
plaintiff from pursuing its complaint in superior court.

Reversed.

HANTZ MARCONI and DONOVAN, JJ., concurred.

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