Agenda - Planning Commission - 07/01/2004

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Page 8--May 10, 2004 The board determined the nonconforming use had not been abandoned because, initially, it was discontinued pursuant to a court-ordered injunction. Consequently, the i2-month period for a finding of abandonment for a votun~ ~ary discontinuance was inapplicable, This was Supported by proof that in spite of numerous code violations over the years, the prior owner had continued its nonconforming use and had only discontinued the use after the issuance of the injunction forbidding its continuance. Since there was evidence in the record supporting the board's conclusion, it was improper for the lower court to find otherwise. see also: Toys R Us v. Silva, 676 N.£.2d 862. see also: P.M.S. Assets v. Zoning Board of Appeals of Village of Pleasanrville, 774 N.£.2d 204. Appeal -- Aggrieved applicant has 30 days to appeal City claims day of decision included in calculation of period Citation: Pelletier v. City of Manchester, S~tpreme Court of New Hampshire, No. 2003-5.54 (2004) NEW HAMPSHIRE (03/26/04) -- Pelletier owned a three-family residential dwelling. He filed an application with the Manchester Zoning Board of Ad- justment for a variance to make improvements. The board denied his request on Feb. 6. Under local law, Petletier had 30 days after any order or decision to appeal. Specifically, the relevant statute stated the "30-day time period shall be counted in calendar days beginning with the date upon which the board voted to approve or disapprove the appli- cation.'' Pellet/er filed an appeal on Monday, March 10. However, the city refused to hear it because Petletier was a day late in filing. Pelletier sued, and the court ruled in favor of the city. Pelletier appealed, arguing the 30-day time period did not include the day the board voted to deny his variance request. DECISION: Affirmed, Petletier's appeal was filed too late. According to the plain language of the statute, the 30-day period began to run on the date of the decision. The board's vote was on Feb. 6; thus, the 30- day time per/od ended on Friday, March 7. A timely appeal was necessary to tl~'~ maintenance and jurisdiction of the case. Pelletier's failure to comply could not be waived. Consequently/, his fil- ing on March [0 was made too late to continue his appeal. see also: ~r~/'~er~elgl~ce '~. Torw?. of Lyme, 744 A.2d 630 (2000). xee ~lso : Mo~ahm~-Forr..iJ~ Prol)erries '~. Tow~ of H~Msm~, 8 J 3 A. 2d 523 (2002). 86 2004, Qutnian %~ulisr~m9 Group, Any reproduction is prohibited, For more information please call (617) 542-0048.