Agenda - Planning Commission - 11/06/2008

Home

\ I I I \ . I i i . I i i , I I 1 \ \ i I \ i \ I I ! j i \ I , i ! I. I I I , ~ 1 j J I i n ,::_: ~"-'::;':",,,:=.;,j:_r:~~"",~;J,;.~.'i""...:-,,x-;.:.:..; .l-","-."'~.;"-~r,,-~-="::,"::;_:;_:',,:<",_,',;.-::c_c:-,;,-"::::"':.. ,~."" October 10, 2008\ Volume 2\ No. 19 They also argued that; the zoi:1ing administrator failed in her state consti- tutional duty to provide assistance to them as citizens. They argued that failure interfered with their right and ability to properly appeal. DECISION: Affirmed. (~ The court concluded that strictly applying the town zoning ordi- nance's fifteen-day limitations period to Kelsey did not violate their right to due process. Due process required that interested parties be apprised of the pendency of an action and afforded an opportunity to present i:he~ objections. The court found that Kelsey had a chance to look at the Project file at their May 2006 meeting with the administrator. They also had the opportunity to see the permit through the public posting procedure. The court noted the only other evidence on the issue was: (1) Kelsey's cla!m' of a "feding" that the zoning administrator would directly notify them of proceedings on the Project; and (2) the zoning adminis- trator's testimony that she could not recall ever telling anyone that she would send them "something that wasn't absolutely required." In short, . the court found that Kelsey had failed to show how the zoning adminis- trator's failure to provide them with information affected their ability to timely appeal. Thus, the court found no evidence that Kelsey's due pro- cess rights were violated by strict application of the zoning permit appeal time limitations. The court also concluded that the zoning administrator did not violate a state constitutional obligation that municipalities provide assistance to citizens. The court said, in the context of aiding property owners seeking municipal approval to develop their property, municipalities had a duty to reasonably engage an application and not delay a project.. The court acknowledged that duty might extend to providing some assistance to abutters or iriterested residents. However, it found the scope of that duty could not be extended to require zoning administrators to take "initia- tive to educate [interested residents] about the pendency of [a] project and about the permit and appeal process." The court concluded that the zoning administrator fulfilled the required municipal duty because she: (1) was, as Kelsey testified, "very helpful and. . . answered [their] con- cerns and [their] questions;" (2) provided Kelsey with an opportunity to review the Project plan and file; and (3) followed the public posting pro- cedure when the permit issued. ) See also: Dow v. Town ofEffingfJam, 148N.H. 121, 803 A.2d 1059 (2002). See also: Richmond Co., Inc. v. City of Co~cord, 149 N.H. 312,821 A.2d 1059 (2003). \ .~,. @ 2008 Thomson Reuters/West 9 77