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Town of Bartlett Board of Selectmen v. Town of Bartlett Zoning Board of Adjustment

April 12, 2013

TOWN OF BARTLETT BOARD OF SELECTMEN
v.
TOWN OF BARTLETT ZONING BOARD OF ADJUSTMENT



The opinion of the court was delivered by: Dalianis, C.J.

a.m. on the morning of their release. The direct address of the court's home page is: http://www.courts.state.nh.us/supreme.

Argued: February 13, 2013

The petitioner, the Town of Bartlett Board of Selectmen (Selectboard), appeals an order of the Superior Court (Houran, J.) upholding a decision of the Town of Bartlett Zoning Board of Adjustment (ZBA) finding that a sign erected by the intervenor, River Run Company, Inc. (River Run), is permitted under the Town of Bartlett's Zoning Ordinance (ordinance). We affirm.

The following facts are drawn from the trial court's order and the record. River Run maintains vacation ownership units at Attitash Mountain Village, a resort in Bartlett. In September 2009, River Run applied to the Selectboard for a permit to place a sign on Route 302, advertising, "The Suites at Attitash Mountain Village." In January 2010, the Selectboard approved River Run's application, and the sign was erected at the westerly entrance to the resort area. At some point, an additional, smaller sign was affixed underneath the approved sign, reading "REGISTRATION .3 MILES BACK ON LEFT." The registration office to which the sign refers is the office at which patrons register for Attitash Mountain Village. The office is located on a lot within Attitash Mountain Village, separate from the lot on which the sign is located.

In June 2010, the Selectboard informed River Run that the additional sign violated the ordinance. In response, River Run submitted an amended sign permit application, seeking approval of the additional sign. The Selectboard denied River Run's request pursuant to Article XVI, Section A-10 of the ordinance, which prohibits the erection of an outdoor sign "on any premises other than on the premises where the activity to which the sign pertains is located," and Section D, which prohibits off-premise signs "in all districts except as provided elsewhere in [the] Ordinance." The Selectboard reasoned that because the "sign advertises the registration office which is not on the property where the sign is, it is considered an off premise sign and therefore not permitted." River Run appealed to the ZBA, arguing that the sign was "a directory sign" under Article XVI, Section H.4 of the ordinance, which exempts from the ordinance "[d]irectional, informational, warning, and/or safety oriented signs not directed to or readily visible from the public way and/or required by State law or regulation or for the control, movement, and/or protection of patrons."

The ZBA held a public hearing at which it noted that the ordinance does not define the word "premises." The ZBA then discussed whether the word might "mean the total holdings of the landowner," rather than individual lots. Ultimately, the ZBA found "that the sign served as a directional sign for patrons" under Article XVI, Section H.4, and was exempt from the provisions of the ordinance prohibiting off-premise signs.

The Selectboard moved for rehearing, arguing that the ZBA's decision that the sign was a directional sign was unlawful or unreasonable. It also noted that the "ZBA meeting minutes contain a fair amount of discussion about the word 'premises,'" and contended "that the term 'premises' cannot be interpreted to mean more than a single lot of land, and cannot mean multiple lots under the same ownership." According to the Selectboard, "[a]ny interpretation that 'premises' means more than a single lot is in error." River Run objected, asserting that the ZBA's decision was lawful because the sign was either exempt as a directional sign under Article XVI, Section H.4, or was not an off-premise sign and, thus, was permitted under the ordinance.

After the ZBA denied the Selectboard's request for rehearing, the

Selectboard appealed to the superior court. The Selectboard again argued that River Run's sign was not exempt as a directional sign, and "that the term 'premises' cannot be interpreted to mean more than a single lot of land, and cannot mean multiple lots under the same ownership." The trial court ruled that the sign was not an off-premise sign. In doing so, the trial court rejected the Selectboard's argument that the court should refuse to address this issue because it was not properly before the court on appeal. This appeal followed.

The Selectboard argues that the trial court exceeded its jurisdiction by upholding the ZBA's decision upon a ground not set forth in the motion for rehearing. See RSA 677:2 (Supp. 2012), :3, I (2008). It further contends that the trial court erred by: (1) construing the term "premises" in the ordinance to mean a unified vacation resort complex located on multiple tax lots; and (2) failing to find that the sign is an "off-premise" sign not subject to exemption.

Judicial review in zoning cases is limited. Brandt Dev. Co. of N.H. v. City of Somersworth, 162 N.H. 553, 555 (2011). Factual findings by the ZBA are deemed prima facie lawful and reasonable, and the ZBA's decision will not be set aside by the superior court absent errors of law unless it is persuaded by the balance of probabilities, on the evidence before it, that the ZBA decision is unlawful or unreasonable. Id.; RSA 677:6 (2008). We will uphold the superior court's decision unless the evidence does not support it or it is legally erroneous. Brandt Dev. Co. of N.H., 162 N.H. at 555.

We begin by addressing the Selectboard's challenge to the superior court's subject matter jurisdiction. The Selectboard argues that the trial court's subject matter jurisdiction in a zoning matter is circumscribed by the issues raised in a motion for rehearing under RSA 677:2. Thus, it contends that the trial court lacked jurisdiction to consider whether the sign was not an off-premise sign because River Run did not file a motion for rehearing with respect to this issue.

Under RSA 677:3, I, "no ground not set forth in the [motion 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." This "statutory scheme 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." Atwater v. Town of Plainfield, 160 N.H. 503, 511-12 (2010) (quotation omitted; emphasis added). Nevertheless, we are aware of no authority, and the Selectboard cites none, that River Run, which prevailed before the ZBA, had a statutory obligation to file a motion for rehearing in order to establish the trial court's jurisdiction over its alternative argument in support of the ZBA's decision. Cf. Mack v. Board of Appeals, Town of Homer, 807 N.Y.S.2d 460, 463 (Sup. Ct. 2006) (finding that petitioners were not required to appeal town code enforcement officer's interpretation to board of appeals "because they were not aggrieved by it").

Moreover, although the Selectboard asserts that its "request for rehearing was based exclusively on the ZBA's interpretation of Zoning Ordinance Article XVI, Section H.4," and that neither it nor River Run appealed the ZBA's conclusion that the sign was an off-premise sign, the Selectboard itself raised the issue in its motion for rehearing when it contended "that the term 'premises' cannot be interpreted to mean more than a single lot of land, and cannot mean multiple lots under the same ownership." River Run then also raised the issue in its objection to the Selectboard's motion for rehearing. Thus, insofar as the Selectboard maintains that the issue was raised for the first time before the superior court, it is mistaken. Accordingly, we conclude that, when reviewing the ZBA's decision that River Run's ...


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