Agenda - Planning Commission - 11/06/2008

Home

. . ~- .._---. . - _0.___-.-- _______0_ Zoning Bulletin Municipal Duty-Town dismisses residents' untimely appeal of zoning permit Residents assert appeal was '[!.D.timely only because zoning administrator failed to provide them information . Citation: Kelsey v. Town of Hanover, 2008 WL 3893222 (N.H. 2008) NEW HAMPSlllRE (08/20/08)-In November 2005, the StrocWics purchased property in the town. The Strochlics sought permits from the' town to raze an existing house on the property and construct a new one (the Project). On April 28, 2006, the .town issued a zoning permit to them. The permit allowed the Project to be located on the lot in confor- mity with the town's setback requirements for frontage on a public road, Weatherby Road. The permit did not require that the Project conform to the frontage requirements from a private right-of-way-Weatherby Ter- race. A building permit issued on July 24, 2006. Anp.. Holloway and Virginia Kelsey (collective~y, Kelsey) met with the town's zoriingadministrator in the fall of 2005 and again in late May 2006 to inquire about the Project. In October 2006, Kelsey filed an appeal with the town's zoning board of appeals (ZBA),' contesting the issuance of the zoning permit to the Strochlics. Kelsey asserted that Weatherby Terrace should have been con- sidered a "street" in accordance with the town's zoning ordinance, and t~us the setback requirements for the Project should have been calculated from Weatherby Terrace, and not from Weatherby Road. The ZBA raised the issue that the appeal was not filed within fifteen days of the zoning permit as required by the town's zoning ordinance. Kelsey responded that they had the "feeling" that the zoning administra- tor would notify them directly as proceedings went forward concerning the Project. They argued that they did not timely file the appeal because they were not, as they had reasonably expected, directly notified of prog- ress on the Project. The ZBA dismissed the appeal because it was untimely. Kelsey appealed to the superior court. The superior court upheld the ZBA's decision. . . Kelsey appealed. They again asserted that they had a reasonable ex- . pectation that the zoning administrator would provide them with direct notice of any further progress on the Project. They argued that because that reasonable expectation was not met, in order for them to have their due process, the fifteen-day appeal period should notbe strictly applied. 8 @ 2008 Thomson ReutersIWest 76 r), .(), I I I, ;1 II !I I I II II II 11 'I II II tj I ! i 1 .1 i , I I 'j I I i i I I I I i II ! I I I ') II 1 I I I II I, '....~./.