No. 2020-0034

Supreme Court At-a-Glance Contributor Laura D. Devine, Civil Litigation Attorney, Boyle Shaughnessy Law, Manchester, NH

May 25, 2021

Affirmed.

 

  • Whether the Town of Hanover Zoning Board of Appeals has subject matter jurisdiction to hear a fraternity’s appeal from a notice of violation

 

A fraternity was suspended by its national organization and subsequently derecognized by Dartmouth College. Subsequently, the Town of Hanover served a notice of zoning violation onto the fraternity which stated that it could no longer use its fraternity house as a residence and stated the amount of a daily fine for a continuing violation. The fraternity appealed to the Town ZBA which initially granted the appeal and concluded that the fraternity had a valid nonconforming use. Dartmouth requested a re-hearing and the ZBA reversed its decision and denied the fraternity’s appeal. The fraternity then appealed the ZBA decision to the trial court which affirmed the decision. The fraternity then appealed the trial court ruling to the Supreme Court, which affirmed in part, vacated in part, and remanded for further proceedings.

While the case was pending before the ZBA on remand, the fraternity filed a petition for declaratory judgment arguing that the ZBA did not have subject matter jurisdiction over its first appeal from the notice of violation and the courts did not have the jurisdiction to review the ZBA’s decision as a result. In the declaratory judgment action, the fraternity argued that (1) the notice of violation commenced an informal enforcement proceeding against the fraternity; (2) the fraternity’s challenge was to the ZBA’s decision to enforce, not to the construction, application, or interpretation of the ordinance; (3) the courts, not the ZBA, have subject matter jurisdiction to adjudicate alleged violations of zoning ordinances; and (4) the ZBA violated the fraternity’s due process by unlawfully shifting the burden of proof to them. In response, the Town moved to dismiss and requested an award of attorney’s fees. The trial court denied the petition for declaratory judgment and rejected the fraternity’s argument that the notice was a discretionary decision to commence formal or informal enforcement proceedings.

The trial court determined that a notice of violation serves to provide notice that one is not in compliance with zoning to give an opportunity to remedy before enforcement. The trial court reasoned that the notice of violation was not enforcement. The trial court concluded that the notice was an administrative decision, not a discretionary decision to commence proceedings, and thus the ZBA had jurisdiction to hear the appeal. The court rejected the fraternity’s due process argument, and stated it was not deprived of any ascertainable interest protected by law as a result of the notice or the fraternity’s appeal to the ZBA. The trial court denied the Town’s motion for attorney’s fees without explanation.

In its decision affirming the trial court’s rulings. The Court observed that the ZBA’s powers and jurisdiction are established by statute. The Court agreed with the fraternity that a municipality seeking to prosecute and impose penalties upon a defendant for a zoning violation must pursue such action in circuit or superior court. However, the Court agreed with the Town that the stage of a notice of zoning violation and subsequent appeal are not a prosecution of a zoning violation.

The Court concluded that the ZBA had subject matter jurisdiction to hear the fraternity’s appeal from a notice of violation because it is an administrative decision, not a discretionary decision.

Regarding the denial of attorneys’ fees, the Court noted that the general rule is that each party must pay its own fees. The Court concluded that there was no evidence of bad faith or intentional delay and the nature of the issue and arguments provide some support in the record for the trial court’s determination and therefore the denial of attorney’s fees was upheld.

 

Carolyn Cole, Cole Associates Civil Law, Lebanon, for the plaintiff. Laura Spector-Morgan, Mitchell Municipal Group. Laconia, for the defendant.