New Hampshire Alpha of SAE Trust v. Town of Hanover ( 2021 )


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    THE SUPREME COURT OF NEW HAMPSHIRE
    ___________________________
    Grafton
    No. 2020-0034
    NEW HAMPSHIRE ALPHA OF SAE TRUST
    v.
    TOWN OF HANOVER
    Argued: November 17, 2020
    Opinion Issued: May 25, 2021
    Cole Associates Civil Law, PLLC, of Lebanon (Carolyn K. Cole on the brief
    and orally), for the plaintiff.
    Mitchell Municipal Group, P.A., of Laconia (Laura Spector-Morgan on the
    brief and orally), for the defendant.
    HANTZ MARCONI, J. The plaintiff, New Hampshire Alpha of SAE Trust
    (SAE), appeals an order of the Superior Court (MacLeod, J.) ruling that the
    Town of Hanover Zoning Board of Adjustment (ZBA) has subject matter
    jurisdiction to hear SAE’s administrative appeal in the related case of New
    Hampshire Alpha of SAE Trust v. Town of Hanover, 
    172 N.H. 69
     (2019) (SAE I).
    The defendant, the Town of Hanover (Town), filed a cross-appeal of the trial
    court’s denial of its request for attorney’s fees. We affirm.
    I. Factual Background & Procedural History
    The following facts were found by the trial court or are otherwise
    supported by the record. On February 12, 2016, the zoning administrator for
    the Town issued a “Notice of Zoning Violation” (the Notice) to SAE. It provided
    in relevant part:
    The Planning & Zoning office has been notified by Dartmouth
    College that the chapter charter of the New Hampshire Alpha
    Chapter of Sigma Alpha Epsilon has been suspended by the
    national organization.
    Subsequent to that notification, Dartmouth College notified the
    Sigma Alpha Epsilon fraternity that they are officially derecognized
    by Dartmouth College, and that effective March 15, 2016, the
    facility located at 38 College Street will no longer be able to be
    occupied.
    The Adopted Zoning Ordinance requires that student residences in
    the “I” Institution zoning district be operated in conjunction with
    another institutional use [Section 902]. Because it has been
    derecognized by Dartmouth College, the SAE facility is no longer
    being operated in conjunction with an institutional use. Therefore,
    the continued use of the property as a residence is a violation of
    the zoning ordinance.
    Continued occupancy of the property after March 15, 2016 will
    subject the SAE fraternity to fines in the amount of $275 per day
    for each day the violation continues. [RSA 676:17]
    This is an Administrative Decision, which you have the right to
    appeal to the Zoning Board of Adjustment. Should you wish to
    appeal, you have seven (7) days from the date of the receipt of this
    Notice of Violation to file an appeal. [Adopted Zoning Ordinance,
    Section 1005.2]
    SAE appealed the Notice to the ZBA, which initially concluded that SAE
    had demonstrated a lawful nonconforming use in regard to the “in conjunction
    with” requirement referenced in the Notice. The ZBA therefore granted the
    appeal. Following a rehearing at the request of Dartmouth College, however,
    the ZBA reversed its decision and denied SAE’s appeal. SAE appealed the
    ZBA’s decision to the trial court, which affirmed the decision. SAE then
    appealed the ruling to this court, which affirmed in part, vacated in part, and
    remanded for further proceedings. See SAE I, 172 N.H. at 78.
    2
    While that case was pending before the ZBA on remand, SAE filed in the
    trial court this petition for declaratory judgment arguing that the ZBA did not
    have subject matter jurisdiction over SAE’s appeal from the Notice in the first
    instance, and that the courts did not have subject matter jurisdiction to review
    the ZBA’s decision as a result. SAE argued that: (1) the zoning administrator’s
    Notice commenced an informal enforcement proceeding against SAE; (2) SAE’s
    challenge was to the zoning administrator’s decision to institute an
    enforcement proceeding, not to the construction, application or interpretation
    of the ordinance; (3) the courts, and not the ZBA, have exclusive jurisdiction to
    adjudicate alleged violations of zoning ordinances; and (4) the ZBA violated
    SAE’s right to due process by unlawfully shifting the burden of proof to SAE.
    The Town moved to dismiss and requested an award of attorney’s fees.
    Following a hearing, the trial court denied SAE’s petition for declaratory
    judgment and rejected SAE’s argument that the Notice was not appealable to
    the ZBA as a “decision of the administrative officer,” as that phrase is defined
    in RSA 676:5, II(b), because it constituted a discretionary decision to
    commence formal or informal enforcement proceedings. The trial court
    determined that a notice of violation is “simply a notice from the municipality
    informing a defendant that the municipality believes that he or she is not in
    compliance with the zoning ordinance” in order to give the defendant an
    opportunity to remedy the alleged violation before an enforcement proceeding is
    commenced. The court observed that the Notice in this case explained the
    reason for the zoning administrator’s decision that SAE was in violation of the
    zoning ordinance and the possible penalties for a continuing violation, but it
    did not order SAE to take or avoid any actions, and did not impose any penalty.
    Thus, the trial court concluded, the Notice was an administrative decision
    involving the construction, interpretation or application of the ordinance, not a
    discretionary decision to commence formal or informal enforcement
    proceedings. Accordingly, the court ruled that the ZBA had jurisdiction to hear
    the appeal pursuant to RSA 674:33, I(a)(1) and RSA 676:5, I.
    The trial court also rejected SAE’s argument that, under Town of Derry v.
    Simonsen, 
    117 N.H. 1010
     (1977), the ZBA’s jurisdiction is limited to appeals
    involving special exceptions and variances. The court observed that, following
    our decision in Simonsen, the legislature amended RSA 676:5 by defining the
    types of cases over which zoning boards have jurisdiction and expressly
    included decisions of an administrative officer involving the construction,
    interpretation or application of a zoning ordinance. The trial court concluded
    that, to the extent Simonsen held that the ZBA’s jurisdiction is limited to
    reviewing special exceptions and variances, it had been abrogated by the
    legislature’s amendment to RSA 676:5.
    Responding to SAE’s remaining arguments, the trial court deemed
    without merit SAE’s argument that, because RSA 676:17 defines a violation of
    a zoning ordinance as a criminal offense, the ZBA does not have jurisdiction to
    3
    hear SAE’s appeal of the Notice. The trial court noted that the hearings before
    the ZBA were not proceedings in a criminal case, the ZBA did not seek to
    impose criminal penalties, and neither the Notice nor SAE’s appeal to the ZBA
    could be characterized as a “prosecution of any violation of a local ordinance.”
    See RSA 502-A:11-a, I (2010). The court also rejected SAE’s due process
    argument, stating that SAE was not deprived of any ascertainable interest
    protected by law as a result of the Notice or SAE’s appeal to the ZBA. The
    court denied the Town’s motion for attorney’s fees without explanation. This
    appeal and cross-appeal followed.
    II. Standard of Review
    Subject matter jurisdiction is jurisdiction over the nature of the case and
    the type of relief sought; the extent to which a court can rule on the conduct of
    persons or the status of things. Gordon v. Town of Rye, 
    162 N.H. 144
    , 149
    (2011). In other words, it is a tribunal’s authority to adjudicate the type of
    controversy involved in the action. 
    Id.
     A tribunal lacks power to hear or
    determine a case that concerns subject matter over which it has no
    jurisdiction. 
    Id.
     Thus, in the absence of subject matter jurisdiction, a
    tribunal’s order is void and the appellate tribunal acquires no jurisdiction of
    the merits upon appeal. See Daine v. Daine, 
    157 N.H. 426
    , 428 (2008). A
    party may challenge subject matter jurisdiction at any time during the
    proceeding, including on appeal, and may not waive subject matter
    jurisdiction. Gordon, 
    162 N.H. at 149
    . Whether the ZBA had subject matter
    jurisdiction to hear SAE’s appeal presents a question of law that we review de
    novo. 
    Id. at 150
    .
    Because the ZBA’s powers and jurisdiction are governed by statute, see
    RSA 674:33 (Supp. 2020); RSA 676:5 (2016); see also RSA 674:16 (2016),
    resolution of this appeal requires us to engage in statutory interpretation. We
    are the final arbiter of the intent of the legislature as expressed in the words of
    a statute considered as a whole. Dembiec v. Town of Holderness, 
    167 N.H. 130
    , 134 (2014). When examining the language of a statute, we ascribe the
    plain and ordinary meaning to the words used. 
    Id. at 134-35
    . We interpret
    legislative intent from the statute as written and will not consider what the
    legislature might have said or add language that the legislature did not see fit
    to include. 
    Id. at 135
    . We interpret a statute in the context of the overall
    statutory scheme and not in isolation. 
    Id.
    III. Discussion
    A. Jurisdiction of the ZBA
    The trial court ruled that the ZBA had jurisdiction over SAE’s appeal
    because the Notice was an administrative decision involving the construction,
    interpretation or application of the ordinance, not a discretionary decision to
    4
    commence enforcement proceedings. See RSA 676:5, II(b). On appeal, SAE
    argues that the trial court erred because the Notice is part and parcel of the
    statutory enforcement procedures, see RSA 676:17 (2016); RSA 676:17-b
    (2016); RSA 31:39-c (2019), and, as such, is appealable to the courts, not the
    ZBA. The Town responds that the Notice is not a decision to commence
    enforcement proceedings, and that SAE seeks to conflate a notice of violation
    and actual prosecution of a zoning violation. The Town contends, however,
    that even if a notice of violation commences formal or informal enforcement
    proceedings, the ZBA had jurisdiction to review SAE’s appeal because the
    Notice was a decision by an administrative officer involving the construction,
    interpretation or application of the terms of a zoning ordinance. See RSA
    676:5, I, II. A review of the relevant statutes illustrates that a notice of
    violation can serve both as the starting point of an enforcement action that
    must be brought in court, and as a notice of a municipality’s administrative
    determination providing grounds for an administrative appeal.
    We observe that fines begin to accrue for an alleged zoning violation
    “after the conviction date or after the date on which the violator receives written
    notice from the municipality that the violator is in violation, whichever is
    earlier.” RSA 676:17, I. Further, administrative officials with the authority to
    prosecute an offense within the scope of RSA 676:17 are not permitted to serve
    a local land use citation “unless the defendant has first been given written
    notice of the violation by the municipality.” RSA 676:17-b, I. Indeed, a
    municipality is permitted to use a “written notice of violation containing a
    description of the offense and any applicable schedule of penalties” in “the
    enforcement of its ordinances and regulations.” RSA 31:39-c; see also RSA
    674:33-a (2016) (equitable waiver of dimensional requirement permitted if “no
    enforcement action, including written notice of violation, has been
    commenced”). Thus, we would be remiss to conclude that, as a matter of law,
    a notice of violation is not part of an enforcement action.
    However, the statutory scheme expressly contemplates circumstances in
    which a dispute over a notice of violation is appealable to the ZBA.
    Municipalities are required to set forth a reasonable period for appealing a
    notice of violation to the ZBA, and land use citations may not be served until
    the end of such period “[i]f the notice involves or includes a decision which may
    be appealed to the zoning board of adjustment pursuant to RSA 676:5.” RSA
    676:17-b, I. “[A]ny person aggrieved . . . by any decision of the administrative
    officer” may appeal to the ZBA “concerning any matter within the board’s power
    as set forth in RSA 674:33.” RSA 676:5, I. The “administrative officer” is “any
    official or board” who has the responsibility for issuing permits and certificates
    or enforcing zoning ordinances, “and may include a building inspector, board of
    selectmen, or other official or board with such responsibility.” RSA 676:5, II(a).
    A “decision of the administrative officer” is “any decision involving construction,
    interpretation or application of the terms of the ordinance.” RSA 676:5, II(b).
    5
    While a “decision of the administrative officer” specifically excludes “a
    discretionary decision to commence formal or informal enforcement
    proceedings,” it “does include any construction, interpretation or application of
    the terms of the ordinance which is implicated in such enforcement
    proceedings.” 
    Id.
     Pursuant to the plain language of RSA 674:33, the ZBA has
    the power to “[h]ear and decide appeals if it is alleged there is error in any
    order, requirement, decision, or determination made by an administrative
    official in the enforcement of any zoning ordinance adopted pursuant to RSA
    674:16.” RSA 674:33, I(a)(1). Accordingly, the legislature has determined that
    a notice of violation can be the proper subject of an administrative appeal. See
    RSA 676:6 (2016) (instructing that “all proceedings under the action appealed
    from” shall be stayed in the event of “[a]n appeal [to the ZBA] of any order or
    other enforcement action”).
    In sum, a notice of violation can serve as the initiation of an enforcement
    action and also as the basis for an administrative appeal. The ZBA may hear
    and decide an administrative appeal of a notice of violation to the extent that it
    is alleged that the administrative officer committed an error involving the
    construction, interpretation or application of a zoning ordinance. See RSA
    674:33; RSA 676:5. But the ZBA has no authority to hear and decide issues
    arising from the notice of violation beyond contesting an officer’s construction,
    interpretation or application of a zoning ordinance.1 See RSA 676:5, I, II(b);
    RSA 674:33, I, II; see also Simonsen, 117 N.H. at 1013 (stating that challenges
    to orders “regarding the enforcement of a zoning ordinance should be in the
    superior court” (emphasis added));2 Dembiec, 167 N.H. at 133 (stating that
    “[j]udicial treatment may be particularly suitable when the constitutionality or
    validity of an ordinance is in question”).
    Our interpretation of the ZBA’s authority does not, as SAE argues,
    render the exclusionary language of RSA 676:5, II(b) meaningless. That
    provision prohibits the ZBA from reviewing a “decision to commence formal or
    informal enforcement proceedings.” RSA 676:5, II(b) (emphasis added). By the
    provision’s plain language, the ZBA may not review an administrative official’s
    decision to institute enforcement proceedings. In other words, if an
    administrative officer exercises discretion to commence an enforcement
    proceeding against a defendant, the ZBA is powerless to dismiss, withdraw,
    reverse, or otherwise invalidate that duly instituted proceeding. Such
    restriction does not, however, prevent the ZBA from reviewing decisions of the
    1 To the extent that SAE argues that the trial court erred in the pending case of SAE I by striking,
    at the Town’s urging, constitutional claims from SAE’s challenge to the ZBA’s decision because
    the constitutional claims were not first raised to the ZBA, that issue is not before us.
    2We disagree with the Town’s assertion that the legislature’s amendment to RSA 676:5 in 1989
    abrogated Simonsen in total. Simonsen’s central holding — that the enforcement of a zoning
    ordinance must be brought before the court rather than the ZBA, see Simonsen, 117 N.H. at 1013
    — is still consonant with the statutory scheme. See RSA 676:5; RSA 674:33.
    6
    administrative officer concerning the “construction, interpretation or
    application of the terms of the ordinance which [are] implicated in such
    enforcement proceedings.” RSA 676:5, II(b); see RSA 674:16; RSA 674:33;
    Greene v. Town of Deering, 
    151 N.H. 795
    , 798-99 (2005).
    SAE argues that the Notice and subsequent appeal proceedings at the
    ZBA are tantamount to a prosecution of SAE for violation of a local zoning
    ordinance. SAE stresses that the ZBA’s affirmance of a zoning administrator’s
    construction, interpretation or application of the zoning ordinance has
    practically the same effect as establishing a violation in an enforcement
    proceeding because the Notice was a “formal accusation” by the Town of a
    zoning violation upon which the ZBA made findings and rulings that the Town
    might seek to rely upon in a subsequent enforcement action. Thus, SAE
    argues, the appeals process established by the Town circumvents due process
    because the Town requires defendants to appeal decisions of the zoning
    administrator first to the ZBA, even when the decision of the administrator is
    that a zoning violation exists.3 SAE observes that, at ZBA hearings, there is no
    testimony taken under oath or authentication of documents, the board relies
    on hearsay evidence and provides no right to confront accusers, and “the Town
    presents no evidence that the violation exists but rather the landowner is
    required to prove its innocence.” In SAE’s view, the Town’s process is a
    “hometown pseudo-trial in front of the ZBA” whose findings are relied upon by
    the Town in subsequent enforcement actions where the risk of penalties being
    imposed looms.
    SAE offers SAE I as a case in point contending that, throughout the
    review of the Notice by the ZBA and the courts, the issue was described as
    whether SAE’s use of the property as a student residence was “in violation” of
    the zoning ordinance, equating the interpretation of the ordinance as effectively
    determining the outcome of the enforcement action. We disagree that the
    Notice and administrative appeal effectively control the outcome of any
    subsequent enforcement action. Such a conclusion would be at odds with the
    statutory framework and due process.
    A “violation” in the enforcement context is not the same as the review of
    an administrative decision. Determining a “violation” is the result of a criminal
    or civil proceeding in which due process would require, at a minimum, a
    neutral fact finder in an adjudication in which the burden of proof would be
    upon the municipality to establish the violation. See RSA 676:17, V. An
    appeal to the ZBA of the interpretation of an ordinance provision is not such a
    proceeding. To wit, the Town’s ZBA is reviewing an interpretation made by the
    Town’s own zoning administrator in a quasi-judicial proceeding where the
    3The trial court appeared to endorse the concept that the zoning administrator, not the court,
    determines whether a violation exists when it opined that municipal officials must have the
    authority to “determine, in the first instance, that a violation had occurred.”
    7
    applicant bears the burden of proving the interpretation is in error. See CBDA
    Dev., LLC v. Town of Thornton, 
    168 N.H. 715
    , 721 (2016) (“zoning boards act in
    a quasi-judicial capacity when interpreting a zoning ordinance” (citations
    omitted)). Review of the board’s decision on appeal is deferential — findings of
    fact by the ZBA are deemed prima facie lawful and reasonable, and the ZBA’s
    legal determinations will be upheld unless unlawful or unreasonable. See RSA
    677:6 (2016). These distinctions may prevent findings and rulings made in the
    administrative review context from underpinning the enforcement action.4
    Moreover, RSA 676:6 imposes a stay, during the time allotted for appealing
    interpretive decisions to the ZBA, such that fines could not accrue during the
    pendency.5
    The ZBA’s powers and jurisdiction are established by statute, see RSA
    674:16; RSA 674:33; RSA 676:5; see also Ouellette v. Town of Kingston, 
    157 N.H. 604
    , 608 (2008). The board has only those powers that are expressly
    conferred upon it by statute or are necessarily implied by those statutory
    grants. See Dembiec, 167 N.H. at 134-35. It is beyond dispute that the ZBA
    lacks the power to convict a party of a crime or impose civil penalties for a
    violation of a zoning ordinance. Accordingly, we agree with SAE that a
    municipality seeking to prosecute and impose penalties upon a defendant for
    an alleged zoning violation must pursue such action in the circuit or superior
    court. See RSA 676:17, V; RSA 490-F:18 (explaining that statutory references
    to the district court shall be deemed to be referring to the circuit court).
    Indeed, the Town agrees “any action brought by the town under RSA 676:15
    and/or 676:17 would, in fact, be brought in court.” However, we agree with
    the Town that, at this stage, the Notice and subsequent appeal proceedings at
    the ZBA are not a prosecution of a zoning violation under RSA 676:15 (2016) or
    RSA 676:17. See, e.g., Town of Bartlett v. Furlong, 
    168 N.H. 171
    , 173 (2015)
    (selectboard filed a land use citation complaint in the district court seeking civil
    penalties under RSA 676:17 after a cease and desist order was not complied
    with); City of Rochester v. Corpening, 
    153 N.H. 571
    , 571-72 (2006) (following a
    notice of violation sent by the city, and no subsequent change in the use of the
    defendant’s properties, the city sought injunctive relief, civil penalties and
    attorney’s fees in superior court pursuant to RSA 676:17).
    The record reveals that the proceeding in SAE I is the administrative
    review: it involves alleged error by the zoning administrator in the construction,
    interpretation or application of a zoning ordinance as set forth in the Notice.
    4 We have recognized that “[u]nder certain circumstances, collateral estoppel may preclude the
    relitigation of findings made by an administrative board.” Tyler v. Hannaford Bros., 
    161 N.H. 242
    ,
    246 (2010). We express no opinion here as to the preclusive effect of a final judgment in an
    appeal to the ZBA of an administrative officer’s construction, interpretation or application of a
    zoning ordinance in a subsequent enforcement action, as that issue is not before us in this case.
    5In addition, the Town conceded at oral argument that it would need to restart the clock on any
    enforcement action or fines arising from this dispute.
    8
    SAE filed the Town’s form for Appeal of an Administrative Decision. In it, SAE
    alleged that “The Zoning Administrator incorrectly ruled that the applicant is in
    violation of the Term Definition ‘Student Residence,’ ‘I’ Institutional District.”
    The ZBA reviewed the zoning administrator’s construction, interpretation or
    application of the ordinance and affirmed the administrator’s interpretation.
    The trial court, “acting in an appellate capacity and not as a fact finder,”
    upheld the ZBA’s decision. SAE I, 172 N.H. at 77. In SAE’s previous appeal to
    this court, SAE successfully disputed part of the zoning administrator’s
    construction, interpretation or application of the terms used in the zoning
    ordinance. See id. at 73-76 (vacated in part and remanded). Thus, SAE has
    challenged the zoning administrator’s construction, interpretation or
    application of the terms of the zoning ordinance contained in the Notice at each
    stage of the litigation. The ZBA has the power to hear appeals from decisions
    that allege such errors. See RSA 674:33; RSA 676:5.
    B. Attorney’s Fees
    Finally, we address the Town’s cross-appeal of the trial court’s denial of
    its request for attorney’s fees. The general rule in New Hampshire is that
    parties pay their own attorney’s fees. DiMinico v. Centennial Estates Coop.,
    
    173 N.H. 150
    , 160 (2020). A judicially created exception to this rule allows for
    attorney’s fees to be awarded based on bad faith litigation. 
    Id.
     An award of
    attorney’s fees under this exception “is appropriate when one party has acted
    in bad faith, vexatiously, wantonly, or for oppressive reasons, when the
    litigant’s conduct can be characterized as unreasonably obdurate or obstinate,
    and when it should have been unnecessary for the successful party to have
    [defended] the action.” 
    Id. at 160-61
    . We will not overturn the trial court’s
    decision concerning attorney’s fees absent an unsustainable exercise of
    discretion. 
    Id. at 161
    . To warrant reversal, the discretion must have been
    exercised for reasons clearly untenable or to an extent clearly unreasonable to
    the prejudice of the aggrieved party on that issue. 
    Id.
     In evaluating the trial
    court’s ruling on this issue, we acknowledge the tremendous deference given a
    trial court’s decision regarding attorney’s fees. 
    Id.
     If there is some support in
    the record for the trial court’s determination, we will uphold it. 
    Id.
    The Town argues that it is entitled to attorney’s fees because SAE’s
    challenge in this case is a frivolous one with no good faith basis in fact or law,
    and asserts that it was only intended to waste time and needlessly delay final
    judgment in this matter. SAE counters that this case raises the issue of
    subject matter jurisdiction, which may be raised at any time, and that SAE was
    not motivated by a desire to delay final judgment. SAE contends that the trial
    court’s denial of the Town’s motion implicitly includes a finding that SAE’s
    claims were not frivolous or made in bad faith.
    A party may challenge subject matter jurisdiction at any time during a
    proceeding. Gordon, 
    162 N.H. at 149
    . Further, we have not directly addressed
    9
    the jurisdiction of the ZBA to hear an appeal from a notice of violation under
    RSA 674:33 and RSA 676:5. The Town relies upon Greene to argue that there
    was no question as to the ZBA’s jurisdiction in this case. See Greene, 151 N.H.
    at 799. However, that case involved residents’ appeals from the board’s
    decision to issue a junkyard license, not an appeal from a notice of violation.
    See id. at 798. Moreover, unlike in this case, there was no occasion in Greene
    to interpret or consider the significance of the exemption contained in RSA
    676:5, II(b). Without evidence of bad faith or intentional delay, the nature of
    the issue and the arguments made in this case provide “some support in the
    record for the trial court’s determination,” and we therefore uphold it.
    DiMinico, 173 N.H. at 161.
    IV. Conclusion
    The legislature has conferred jurisdiction upon the ZBA to hear and
    decide appeals taken by a person aggrieved by a decision made by an
    administrative officer in the enforcement of a zoning ordinance if the appeal
    alleges an error in the administrative officer’s construction, interpretation or
    application of the terms of the zoning ordinance. See RSA 674:33; RSA 676:5.
    The decision resulting from that administrative appeal may not, however,
    substitute for the process required to prove a violation under the enforcement
    provisions. See, e.g., RSA 676:15; RSA 676:17. Thus, the zoning
    administrator’s construction, interpretation or application of a zoning
    ordinance may be appealed to the ZBA, but arguments alleging
    unconstitutional effects as a result of said determinations or disputing the
    existence of a violation must be heard by the court. In this case, SAE’s appeal
    to the ZBA sought reversal of the zoning administrator’s decision that SAE’s
    property is in violation of the zoning ordinance by alleging that the zoning
    administrator erred in construing, interpreting or applying the terms of the
    ordinance. Accordingly, the ZBA had subject matter jurisdiction over SAE’s
    appeal and we affirm the trial court’s denial of SAE’s petition for declaratory
    judgment.6
    Affirmed.
    HICKS and DONOVAN, JJ., concurred.
    6   The Town’s motion to strike portions of the appendix and brief filed by SAE is denied.
    10
    

Document Info

Docket Number: 2020-0034

Filed Date: 5/25/2021

Precedential Status: Precedential

Modified Date: 5/25/2021