Agenda - Planning Commission - 08/03/2006

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Page 8 - July 25,2006 Z.B. ( I \ and 6) was not arbitrary, capricious, or an abuse of discretion. In this'.case, the second-floor addition had all of the attributes of a second dwelling unit. The court could not fInd any clear error or abuse of discretion in the board's decision. A building official could fInd zoning violations while conducting an inspection pursuant to a request for a certifIcate of occupancy; therefore the decision of the board was affIrmed. see also: New Harbor Vilt., LLC v. New Shoreham Zoning Bd. of Review, 894 A.2d 901 (2006). Appeal- Excavation company appeals decision of planning board directly to court Board claims appeal should not be heard Citation: K&B Rock Crushing, UC v. Town of Auburn, Supreme Court of New Hampshire, No 2005-211 (2006) NEW HAMPSHIRE (05/19/06) - K&B RockCrushing, LLC, applied for a per- mit to excavate and crush rock on a 5.5-acre tract of land in the town of Auburn. In the application, K&B stated that it would excavate the rock over a 12-year period, and that "Phase I" of the plan would involve excavation on 1.6 acres of the 5.5-acre parcel. The Town of Auburn Planning Board ruled that K&B's application was complete only for the 1.6-acre excavation. K&B appealed the board's decision to court. The boardiiled a motion to dis- miss, which the court denied. The court then ruled that K&B was entitled to submit an application for the entire 5.5-acre parcel of land, and the board appealed. DECISION: Reversed. The board argued that the court had no jurisdiction to render a decision in the case, because K&B had failed to exhaust its administrative remedies. The board maintained that the proper appeals procedure for K&B to follow was to request a rehearing on the issue from the board. K&B contended that a state statute allowed it to appeal an excavation permit proceeding directly to court without requiring a rehearing before the board. The appeals court ruled that the trial court lacked the jurisdiction to hear this appeal without K&B seeking a rehearing before the board. The court found that the statute regarding appeals from excavation permit proceedings expressly required K&B to request a rehearing before the board and that K&B only was allowed to appeal the board's rehearing decision to court. In addition, K&B' s reliance on a statute that allowed aggrieved parties to appeal a planning board decision to the court only was applicable in cases involving subdivisions and plats, not excavation permits. Since the trial court lacked the jurisdiction to hear the appeal directly, its refusal to allow the board's motion to dismiss was clearly erroneous; the deci- sion of the trial court was reversed. see also: Town of Goffstown v. Thibeault, 529 A.2d 930 (1987). 100 @ 2006 Quinian Publishing Group. Any reproduciion is prohibiied. For more information please call (617) 542-0048. ( \;