Understanding Lonergan v. Town of Sanbornton: Jurisdiction in an Excavation Permit Appeal
In the recent decision of Lonergan v. Town of Sanbornton, the New Hampshire Supreme Court explored subject matter jurisdiction and the appeals process in connection with excavation permits. The case revolved around the plaintiffs’ failure to follow the appeal procedures outlined in RSA 155-E:9, leading to questions of jurisdiction and the Court’s ability to address the underlying merits of the plaintiffs’ arguments.
Background and Arguments:
Juliana and David Lonergan owned property in the Town of Sanbornton. In July 2020, the intervenor, R.D. Edmunds Land Holdings, LLC, applied to the town’s Zoning Board of Adjustment (“ZBA”) for a special exception to operate a gravel pit excavation site on its property. The Lonergans objected to the application, arguing that the excavation site would create noise, dust, and traffic problems. After several months of hearings, the ZBA granted the intervenor’s application on February 23, 2021. Roughly a month later, on March 24, 2021, the plaintiffs filed a motion for rehearing with the ZBA, which was denied. Thereafter, the plaintiffs appealed the ZBA’s decision to the superior court, but the appeal was denied in a February 2022 order which affirmed the ZBA’s decision.
At the New Hampshire Supreme Court, Lonergan v. Town of Sanbornton focused, in large part, on the contours of RSA chapter 155-E, which regulates local excavations in New Hampshire. The statute mandates that property owners obtain an excavation permit from the local regulator, usually the planning board or selectmen of the town, before engaging in any excavation activities. Additionally, the statute provides the following process for any appeal of a regulator’s decision in the excavation permit context:
If the regulator disapproves or approves an application for an excavation permit or an application for an amended permit, any interested person affected by such decision may appeal to the regulator for a rehearing on such decision or any matter determined thereby. The motion for rehearing shall fully specify every ground upon which it is alleged that the decision or order complained of is unlawful or unreasonable and said appeal shall be filed within 10 days of the date of the decision appealed from. . . . Any person affected by the regulator’s decision on a motion for rehearing to the regulator may appeal in conformity with the procedures specified in RSA 677:4-15. RSA 155-E:9 (2014) (emphases added).
In an effort to avoid the application of RSA 155-E:9, the plaintiffs contended that the Zoning Board of Adjustment (“ZBA”) lacked the authority of a “regulator” to grant excavation permits since the Town of Sanbornton did not “duly warn” the town’s voters that it was choosing to appoint the ZBA as a regulator at a March 1994 meeting, as required by RSA 155-E:1, III(a).
Additionally, the plaintiffs argued that the ZBA failed to provide sufficient notice regarding the consideration of an excavation permit during the approval process for the special exception under Article 18(B)(3). They claimed that this lack of notice violated their due process rights and left the ZBA without jurisdiction to grant an excavation permit.
Court’s Reasoning and Decision:
The New Hampshire Supreme Court ultimately disagreed with the plaintiffs’ arguments and provided a detailed analysis to support its decision. First, the court invoked RSA 31:126, which establishes a conclusive presumption of procedural validity for any municipal legislation after five years from the date of its enactment. Since the transfer of regulatory responsibilities to the ZBA occurred in March 1994, the Court concluded that the town’s appointment of the ZBA as the “regulator” was valid, and that the plaintiffs’ argument in this regard was time barred.
And second, with respect to notice requirements, the Court made reference to RSA 676:7, which mandates that the board of adjustment hold a public hearing and provide notice to the surface owners of the adjacent tracts. The Court observed that the notice provided for the August 2020 hearing—which indicated to interested parties the time and place of the hearing—satisfied the requirements of RSA 676:7. Also, the Court dismissed the plaintiffs’ due process argument, as the plaintiffs failed to identify a protected interest or explain how the notice in question deprived them of such an interest.
Given the above findings, the plaintiffs were required to move for an appeal within the ten-day deadline set forth in RSA 155-E:9. But the plaintiffs’ motion for rehearing was filed twenty-nine days after the date of the ZBA’s decision. Because the plaintiffs did not timely file an appeal pursuant to the statute, the ZBA and the courts lacked jurisdiction over the appeal.
Implications and Significance:
Moving forward, Lonergan v. Town of Sanbornton carries some implications for property owners and regulators involved in excavation projects in New Hampshire. The Court’s decision reaffirms the importance for parties to adhere closely to the appeals process outlined in RSA 155-E:9. Failure to follow the prescribed procedures in an appeal of a regulator’s decision can result in a lack of subject matter jurisdiction, as demonstrated by the Court’s ruling in this case.
Also, property owners seeking or opposing excavation permits must be aware of the specific requirements outlined in RSA chapter 155-E and any additional regulations promulgated by local authorities. These parties should carefully review their local ordinances and consult with legal counsel to (1) ensure substantial compliance with the applicable regulations and to (2) understand the proper appeals process in the event of a dispute.
New Hampshire regulators, such as planning boards and zoning boards of adjustment, must also ensure they comply with the statutory requirements and related case law when issuing excavation permits. These requirements include providing proper notice to interested parties and the surface owners of adjacent tracts, as well as conducting public hearings in compliance with RSA 676:7.
Lonergan v. Town of Sanbornton serves to clarify the importance of following the appeals process outlined in RSA 155-E:9 for excavation permit disputes in New Hampshire. The Court’s decision explains the jurisdictional boundaries and emphasizes the necessity of adhering to procedural requirements during an appeal. Property owners and regulators must be diligent in understanding and complying with the relevant statutes and local ordinances to ensure a fair and lawful process for excavation permits. Finally, seeking the advice and guidance of experienced legal counsel can help parties successfully navigate the complexities of the applicable state and local regulations.
You can contact Alfano Law by calling (603) 856-8411 or at this link.