Summary
stating that municipal corporation, not zoning board, was the proper party defendant in appeal of zoning board action
Summary of this case from E. Coast Serv. Indus. Co. v. N.H. State Liquor Comm'nOpinion
No. 5638.
Argued June 7, 1967.
Decided June 30, 1967.
1. The statute (RSA 31:77, 79, 80) providing for appeal from a decision of the zoning board of adjustment imposes no requirement of notice thereof to any party in advance of filing the appeal, and hence where an appeal is timely taken (s. 77) the Superior Court is vested with jurisdiction of the subject matter.
2. Where notice of an appeal timely taken from the decision of the zoning board of adjustment of a village precinct was erroneously served upon the town rather than the precinct it was held that the Court was authorized by RSA 514:3 to retain jurisdiction and provide for such notice to the precinct as justice may require.
3. In an appeal from the decision of a zoning board of adjustment the municipality rather than its board of adjustment is the proper party defendant.
4. Such an appeal is a continuance of the original action for the purpose of obtaining a new trial and a new judgment.
Appeal under RSA 31:77 from a decision of the zoning board of adjustment of the Hopkinton Village Precinct granting a building permit to Hopkinton Associates. Notice of the appeal was originally given to the town of Hopkinton. On June 30, 1966 an order of the Superior Court dismissing the appeal as to the town was confirmed by order of this court. Kelley v. Hopkinton, 107 N.H. 279.
Thereafter on July 1, 1966, the plaintiff moved that the Hopkinton Village Precinct be joined as a party defendant and that an order of notice to the precinct be issued. This motion was granted by order of the Court (Griffith, J.) dated October 19, 1966. However the order of notice which thereupon issued, gave notice of the motion rather than of the appeal. The precinct appeared specially, and on November 3, 1966 moved to dismiss the appeal upon the ground that there was "no pending proceeding," and that the time for appeal "against [the precinct] has long since expired per RSA 31:77."
Following hearing upon the precinct's motion to dismiss, in the course of which the Trial Court found that the failure to notify the precinct of the appeal until after October 19, 1966 was not due to fault of the plaintiff, the appeal was ordered dismissed under date of December 21, 1966, subject to the plaintiff's exception. All questions of law raised by the plaintiff's exception were reserved and transferred by the Presiding Justice.
Robert D. Branch (by brief and orally), for the plaintiff.
Sulloway, Hollis, Godfrey Soden and Joseph S. Ransmeier (Mr. Ransmeier orally), for Hopkinton Village Precinct.
RSA 31:77 provides for appeal from the decision of a zoning board of adjustment "by petition to the superior court" within thirty days after final action by the board. RSA 31:80 directs: "Upon the filing of an appeal, the clerk of court shall issue an order of notice requiring a certified copy of the record appealed from to be filed with the court." The statute permits interested parties to appear, and provides that "the court may order such persons to be joined as parties as justice may require." RSA 31:79. However it imposes no requirement of notice to any party in advance of the filing of the appeal, and it is settled that the municipality rather than its board of adjustment is the proper party defendant. Mater v. Dover, 97 N.H. 13, 16; Boston Maine R. R. v. State, 77 N.H. 437.
"An appeal is a continuance of the original suit, for the purpose of obtaining a new trial and a new judgment." Bickford v. Franconia, 73 N.H. 194, 195. In order to transfer the cause to the Superior Court, the plaintiff was required to do no more than to seasonably file her appeal. RSA 31:77, supra. See also, RSA 541:6-10. Hence the circumstances differed materially from those before the court in Lewis v. Hines, 81 N.H. 24, and Peabody v. O'Leary, 102 N.H. 496 relied upon by the defendant, where the action contested was held to constitute the beginning of an original suit. The plaintiff's appeal adequately set out the action of the zoning board of the precinct, and it is undisputed that it was filed within the statutory period of thirty days. RSA 514:3 provides: "If no personal service has been made on a defendant in an action which may be entered without such service the court, on suggestion thereof, may order the action to be continued and notice of the pendency thereof to be given . . . by personal service or otherwise, as they think proper . . . ." We consider the provisions of this statute to be applicable to this case.
Upon seasonable filing of the appeal the Superior Court was vested with jurisdiction of the subject matter. The fact that the order of notice first issued was erroneously directed to the town rather than the precinct did not operate to divest the Court's jurisdiction, even though notice to the precinct remained to be given. Opie v. Board of Appeals of Groton, 349 Mass. 730, 733.
Under a comparable statute, it was so held in Appeal of Raoul Maurice, 117 Vt. 264. In remanding a zoning appeal for a new order of notice, the Court there said: "The purpose . . . of a notice or citation in appeal cases is to give the appellee notice so that he may appear if he desires . . . [I]t is not jurisdictional of the cause . . . If the notice is faulty it may be treated as a nullity and the matter stands as though no notice was given . . . [A]fter an appeal is entered, notice . . . may be given at any reasonable time . . . ." Id., 269. See also, Cohen v. Board of Registration in Pharmacy, 347 Mass. 96; Shulman v. Zoning Board of Appeals, 143 Conn. 182; In re Marineau, 118 Vt. 261.
Since the statute does not require that notice of the appeal be given within the statutory period of thirty days (RSA 31:77) the motion to dismiss was erroneously granted. The order dismissing the appeal is vacated, and the appeal remanded to the Superior Court for hearing on its merits.
Exception sustained; remanded.
GRIFFITH, J., did not sit; the others concurred.