No Attorneys’ Fees for Property Owner When ZBA Improperly Refused to Hear Appeal of Code Enforcement Officer’s Decision to Enforce 20-Foot Buffer Requirement

By: Kevin O’Shea, Esq.

The New Hampshire Supreme Court recently decided that a Superior Court erred when it ordered a town to pay a property owner $30,000 in attorneys’ fees after the town’s code enforcement officer refused to enforce a 20-foot buffer requirement and the town’s zoning board of adjustment (ZBA) refused to hear an appeal of that decision. See Property Portfolio Group, LLC v. Town of Derry, No. 2011-0448 (N.H. 3JX Nov. 2, 2012).

In this case, after the Superior Court concluded that the ZBA’s refusal to hear the appeal of the code enforcement officer’s decision was improper, the property owner sought attorney’s fees saying that the town acted in bad faith. In deciding that the property owner was entitled to $30,000 in attorneys’ fees, the court not only reviewed the certified record in the case before it, but also reviewed information concerning other litigation between the parties. The 3JX panel rejected this approach, concluding that trial court’s task was to determine whether the town acted in bad faith in this particular case, not whether the town may have acted in bad faith in other litigation between the parties.

The 3JX panel concluded that because the ZBA’s decision that it could not assume jurisdiction of the code enforcement officer’s decision was quasi judicial in nature, and because there was no evidence on the record to conclude that the town caused unnecessary delay or used tactics such as excessive discovery to run up its opponent’s attorney’s fees, there were no grounds to award attorney’s fees against the town merely because it defended the ZBA’s decision.

Because the Supreme Court held that there are no grounds for awarding attorney’s fees against a town, even if the town subjectively believed that the position of a quasi judicial body was legally incorrect, the take-away from this decision is that those that seek to challenge the decision of a ZBA (or other town municipal entity acting in a quasi judicial capacity) should not, as a matter of course, count on the recovery of attorney’s fees.

If you need more guidance on representing your interests before a municipal entity, please feel free to contact Sulloway & Hollis’ Real Estate, Development and Environmental Practice Group (Peter F. Imse, Esq., Group Leader).