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NOTICE: This opinion is subject to motions for rehearing under Rule 22 as well as formal revision before publication in the New Hampshire Reports. Readers are requested to notify the Reporter, Supreme Court of New Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any editorial errors in order that corrections may be made before the opinion goes to press. Errors may be reported by E-mail at the following address: reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 a.m. on the morning of their release. The direct address of the court's home page is: http://www.courts.state.nh.us/supreme. THE SUPREME COURT OF NEW HAMPSHIRE ___________________________ Grafton No. 2007-702 PRESTON T. KELSEY, II & a. v. TOWN OF HANOVER Argued: May 21, 2008 Opinion Issued: August 20, 2008 Stebbins Bradley Harvey Miller & Brooks, P.A., of Hanover (Stephen P. Girdwood on the brief and orally), for the petitioners. Mitchell & Bates, P.A., of Laconia (Walter L. Mitchell and Laura A. Spector on the brief, and Ms. Spector orally), for the respondent. BRODERICK, C.J. The petitioners, Preston T. Kelsey, II, Virginia R. Kelsey, Dirk J. Van Leeuwen, Frank Holloway, Ann Holloway, Robert McLaughry and Ann McLaughry, appeal the decision of the Superior Court (Vaughan, J.) upholding the dismissal of their appeal of a zoning permit granted by the respondent, the Town of Hanover (Town), to Jerry and Claire Strochlic. We affirm. I The following facts were found by the Town of Hanover Zoning Board of Adjustment (ZBA), recited by the superior court, or are supported by the

record. In November 2005, the Strochlics purchased property located at 1 Weatherby Terrace. The property has an unusual configuration. At its north end it has twenty feet of frontage on Weatherby Road. This narrow width extends southerly past adjacent wider lots whereupon the property broadens to the west into a buildable area. Neighbors have an easement over the twentyfoot wide strip for access to Weatherby Road from their homes to the east and south. The easement is paved and known as Weatherby Terrace, a private right-of-way. The Strochlics sought permits to raze an existing house on their property and construct a new one. The Town issued a zoning permit to them on April 28, 2006. The permit allowed the new home to be located on the lot in conformity with the Town's setback requirements for frontage on Weatherby Road, not from Weatherby Terrace. A building permit was issued on July 24, and a demolition permit was issued on September 19. Two of the petitioners, Ann Holloway (Holloway) and Virginia Kelsey (Kelsey), met with the Town's zoning administrator in the fall of 2005 and again in late May 2006 to inquire about the Strochlics' project. In October 2006, the Strochlics' house was demolished and stakes for the new foundation were fixed. On October 25, the petitioners filed an appeal with the ZBA contesting the issuance of the zoning permit. At the hearing before the ZBA, they argued that Weatherby Terrace, a private right-of-way, should be considered a "street" in accordance with the Town's zoning ordinance, and thus the setback requirements for frontage of the Strochlics' proposed residence should have been calculated from Weatherby Terrace, and not from Weatherby Road. They responded to the Town's contention that their appeal was untimely by arguing that they had reasonably relied upon representations of the zoning administrator that they would be directly notified of any progress in the Strochlics' project and, thus, did not appeal the zoning permit within fifteen days as required by the local ordinance. The ZBA dismissed the appeal, concluding that it lacked jurisdiction because the appeal was untimely. See Daniel v. B & J Realty, 134 N.H. 174, 176 (1991) (compliance with procedural deadline for filing appeal is necessary prerequisite to establishing jurisdiction in appellate body). The petitioners' motion for rehearing was denied. The superior court, see RSA 677:4 (2008), subsequently upheld the decision of the ZBA, and this appeal followed. II A party seeking to have the superior court set aside a decision of a ZBA bears the burden of establishing that its decision was unlawful or unreasonable. Greene v. Town of Deering, 151 N.H. 795, 797 (2005). The findings of fact made by a ZBA are deemed prima facie lawful and reasonable. Harrington v. Town of Warner, 152 N.H. 74, 77 (2005). We will uphold the superior court's affirmance or denial of a ZBA decision unless its ruling is unsupported by the evidence or legally erroneous. Id.

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Under RSA 676:5, I (2008), appeals to the ZBA "shall be taken within a reasonable time, as provided by the rules of the board, by filing with the officer from whom the appeal is taken and with the board a notice of appeal specifying the grounds thereof." (Emphasis added.) The Town's zoning ordinance prescribes the "reasonable time" for appealing the issuance of a zoning permit as fifteen days and identifies public posting of the permit as the method for providing notice. See Town of Hanover Zoning Ordinance

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