K & J Associates v. City of Lebanon

HORTON, J.,

dissenting: The majority’s analysis engrafts a site plan regulation, unique to the City of Lebanon, onto the jurisdictional prerequisites of the statute to create an appeal period beyond that found by the trial court. I would uphold the trial court’s finding of no jurisdiction for the reasons enumerated herein and, accordingly, respectfully dissent.

The majority bases its conclusion on the purported ambiguity of the word “decision” in RSA 677:15 (Supp. 1994) (amended 1995). However, the plaintiffs do not contend that the term “decision” is ambiguous and should be construed in their favor; to the contrary, they define the term as including “(a) the vote of the planning board, and (b) the reason for the disapproval.” They assert that the Notice of Action constitutes the “decision” of the planning board (board) because it contains the reasons for the denial of the site plan application in final form.

A review of the record reveals that there is no real dispute as to what constitutes the board’s “decision.” The legislature amended RSA 677:15 in 1995 to clarify the “filing” date under the statute, but not the definition of “decision.” Compare RSA 677:15, I (Supp. 1994) with RSA 677:15,1 (1996). None of the witnesses who testified at the superior court hearing stated that a “decision” required a signed *336Notice of Action. Norman Dobson, the board chairman, stated that “[t]he Planning Board’s decision was final at the time they completed their vote.” In his testimony, the plaintiffs’ witness, Duncan MacNamee, refers to March 25, 1994, as “the morning after the decision ivas made.” (Emphasis added.) Even the attorneys’ questions at the hearing assume the decision occurred at the board meeting on the evening of March 24, 1994.

This view comports with common usage of the term “decision,” which is “the act of deciding.” WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 585 (unabridged ed. 1961). In interpreting a statute, “we ascribe to statutory words and phrases their usual and common meaning, unless the statute itself suggests otherwise.” Appeal of Booker, 139 N.H. 337, 341, 653 A.2d 1084, 1087 (1995) (quotation and brackets omitted). Based upon the record, the board accomplished “the act of deciding” whether to approve or deny the site plan application when it voted at the March 24, 1994, meeting.

In addition to finding an ambiguity where the plaintiffs, the legislature, and the individuals involved in the planning board process did not, the majority chooses to equate the “decision” of the board with the signed Notice of Action, thus distorting the jurisdictional prerequisites for appeal contained in the statute. The Notice of Action is not the “decision.” It is precisely what its name suggests, a laudatory “notice of” action taken by the board, which contains, as one component, the “decision” of the board. The statute, and not the regulations, controls the timing of the appeal. Cf. Dermody v. Town of Gilford, 137 N.H. 294, 296-97, 627 A.2d 570, 571 (1993). The statute does not require a signed Notice of Action to commence running of the appeal period. See RSA 677:15, I (Supp. 1994). The further requirement imposed by the local site plan regulations that a signed Notice of Action containing the decision and reasons for denial be transmitted to the applicant ensures notice to parties; it does not trigger the appeal period under RSA chapter 677.

Finally, the majority asserts that its conclusion is based on its evaluation that the date the signed Notice of Action was filed is more precise and consistent with fair process. The board chairman testified that he sometimes does not sign a Notice of Action until three to four weeks after the decision is rendered. I submit that extending a potentially month-long additional window of opportunity in which to file an appeal to certain fortunate parties lacks the virtue of preciseness. Such a process is not particularly “fair” to the citizens of Lebanon, who' are entitled to finality in planning board matters. If the majority seeks to base its decision on notions of *337equity to the appealing party, I note that we have suggested such notions have no place in a determination of compliance with the statutory prerequisites for subject matter jurisdiction. See Dermody, 137 N.H. at 296-97, 627 A.2d at 571. In circumstances such as this, we are not asked to determine what is equitable for the parties, but what the statute requires of the parties.

In my view, the trial court correctly found that the board rendered its “decision” when it voted to deny the plaintiffs’ application at the March 24, 1994, meeting. The plaintiffs argue that the trial court erred because the “decision” rendered at the board meeting did not include the reasons for the denial of the site plan application. The plaintiffs assert that the board’s “decision” must state the reasons for denial because the statute requires an appealing party to specify the grounds upon which it claims the decision is illegal or unreasonable in its petition for appellate review. See RSA 677:15,1 (Supp. 1994). There is a distinction, however, between the statutory requirements and the requirements of due process. Compare RSA 677:15, I (Supp. 1994) with N.H. CONST, pt. I, art. 15. RSA 677:15 provides for only the planning board’s decision to be filed in the office of the planning board, not notice of its reasoning as well. See RSA 677:15, I (Supp. 1994); cf. K & P, Inc. v. Town of Plaistow, 133 N.H. 283, 289, 575 A.2d 804, 808 (1990) (applicable statute explicitly required that planning board records state grounds for disapproval of application). Due process may require not only timely notice of the decision, but also notice of the reasons for denial so as to allow a plaintiff to perfect an appeal. Cf. Ladd v. Coleman, 128 N.H. 543, 546, 517 A.2d 811, 813 (1986).

The plaintiffs in this case can present no due process argument. Plaintiffs’ counsel and a representative of the plaintiffs were present at the board meeting when the reasons for the denial and the determinations were read into the record. Cf. DiPietro v. Nashua, 109 N.H. 174, 176, 246 A.2d 695, 696-97 (1968) (noting plaintiffs attended zoning board of adjustment hearing and counsel retained after hearing could ascertain nature of evidence presented). The plaintiffs’ representative received either a copy of the motion presented at the board meeting or a draft copy of the Notice of Action the day after the decision was rendered and thus was able to discern the reasons for the board’s denial. Cf. id. The motion contained the reasons for the denial of the site plan application, and the draft Notice of Action also contained reasons for the board’s decision. See K & P, Inc., 133 N.H. at 290, 575 A.2d at 808 (statute satisfied because plaintiff well aware of primary reasons for denial of plan). Lack of a final version of the reasons for the board’s *338decision, which was not statutorily required as of the time the decision was rendered, did not divest the plaintiffs of the ability to file their appeal timely. Cf. DiPietro, 109 N.H. at 176, 246 A.2d at 696 (temporary unavailability of minutes did not relieve plaintiffs of necessity of stating ground for their motion for rehearing).

Our inquiry should focus on the jurisdictional prerequisite that the decision be “fil[ed]... in the office of the planning board.” RSA 677:15, I (Supp. 1994). While the majority hints that “[i]t may be difficult to establish when a decision was filed with the board,” it ultimately concludes the triggering event for the appeal period is the “filing” of the signed Notice of Action. The majority reaches this result without any analysis as to what constitutes “filing.” This was a major thrust of the hearing testimony and the plaintiffs’ argument on appeal.

In my opinion, the trial court did not err in finding that the decision was filed in the office of the planning board on March 25, 1994. The trial court found that “the materials relevant to the Planning Board decision on K & J’s application were ‘filed’ . . . when Ms. Co[l]burn placed them in the office and made them available to the public.” Mr. Dobson, Ms. Colburn, and city planner Ken Niemczyk all testified that the decision, in the form of a typed, but ünsigned, Notice of Action, was available to the public on March 25, 1994. An agent of the plaintiff came to the board office that day and was provided with either a draft Notice of Action or a copy of the motion. The evidence thus supports the trial court’s ruling that the decision was “filed” on March 25.

The plaintiffs nonetheless argue that “filed” under former RSA 677:15,1 (Supp. 1994), is synonymous with “recorded,” and that the decision was not recorded until after the chairman signed it on March 28, 1994. The plain language of the statute required the decision to be “filed,” not “recorded.” RSA 677:15, I (Supp. 1994). The recognized meaning of “file” is “[t]o deliver an instrument or other paper to the proper officer or official for the purpose of being kept on file by him as a matter of record and reference in the proper place.” BLACK’S LAW DICTIONARY 628 (6th ed. 1990). To “record” is to “enter in a . . . file . . . for the purpose of preserving authentic evidence of.” Id. at 1273. It is apparent from the testimony that the individuals involved in the city planning process considered the board’s decision to be part of the “file” or “record” on March 25, 1994. The planning office secretary had the materials in her office, at her desk, and available to the public. The public could and did refer to the documents as evidence of the board’s decision on March 25, 1994.

*339The evidence also supports the trial court’s conclusion that the board’s decision was complete for filing purposes before the chairman signed the typed Notice of Action on March 28, 1994. Although the chairman retained the right to correct or adjust the document evidencing the decision, he testified that this was a “paper procedure,” limited primarily to correcting typographical errors. The city planner likewise stated that the chairman did not have the authority to make substantive changes in the board’s decision before signing the Notice of Action.

I conclude the trial court did not err in its reading of the statute and its interpretation was supported by the evidence. I would therefore affirm its ruling that it lacked subject matter jurisdiction to hear the appeal.

THAYER, J., joins in the dissent.