Agenda - Planning Commission - 03/05/2015

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January 10, 2015 1 Volume 9 I Issue 1 Zoning Bulletin ment and no other adequate remedy is available," including with questions of the constitutionality or validity of an ordinance. Cir- cumstances warranting exception to the administrative exhaustion requirement also include, said the court: "when further administra- tive action would be useless." Here, the court found that an appeal by the Dembiecs of the compliance officer's decision to the ZBA would fall under that second exception. The court found such an appeal would have been useless because the ZBA lacked the authority to grant the Dembiecs' request of' the equitable relief of municipal estoppel. The court explained that zoning boards only have those powers expressly conferred upon them. The court found that the plain language of the pertinent New Hampshire statutes (RSA 674:33 and 674:33-a) did not confer equitable jurisdiction upon a zoning board. It noted that, under those statutes, a zoning board has the authority to grant equi- table relief from a zoning ordinance only when the statutory prerequisites for an equitable waiver, a variance, or a special excep- tion are satisfied. The court found that the statutes did not confer upon a zoning board of adjustment the power to grant relief under the equitable doctrine of municipal estoppel. Accordingly, here, the court concluded that the ZBA would have had "no authority under a municipal estoppel theory to order the compliance officer to issue a certificate of compliance to the petition- ers given that their new home indisputably failed to comply with the ordinance." In other words, the ZBA "could not have compelled the compliance officer to violate the ordinance merely because doing so, arguably; would have been `equitable.' " Moreover, the court found that the ZBA could not have granted any relief to the Dembiecs under the applicable statutes or the Town's ordinance "because their new home violated the ordinance, and they failed to meet the requirements for either a variance or an equitable waiver from dimensional requirements." Under those circumstances, the court concluded that "further pursuit of administrative remedies would have been futile, and, therefore, exhaustion of remedies [was] not required." Finding that the Dembiecs' municipal estoppel claim was not barred by the exhaustion of administrative remedies, the court remanded the matter to the trial court for further proceedings on the claim. See also: McNamara v. Hersh, 157 N.H. 72, 945 A.2d 18 (2008). See also: Porter v. City of Manchester, 151 N.H. 30, 849 A.2d 103, 21 I.E.R. Cas. (BNA) 642 (2004). 10 © 2015 Thomson Reuters