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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 ___________________________ Cheshire No. 2011-183 NICOLAS BOSONETTO v. TOWN OF RICHMOND Argued: February 16, 2012 Opinion Issued: June 29, 2012 Bragdon, Dowd & Kossayda, P.C., of Keene (Kelly E. Dowd on the brief and orally), for the petitioner. Tower & Crocker, P.A., of Jaffrey (David M. Tower on the brief and orally), for the respondent. CONBOY, J. The petitioner, Nicolas Bosonetto, appeals a decision of the Superior Court (Arnold, J.) granting summary judgment in favor of the respondent, Town of Richmond (Town), and dismissing the petitioner's appeal of a decision of the Town of Richmond's Zoning Board of Adjustment (ZBA). We affirm in part and vacate in part. I The following facts are drawn from the record. Nicolas and Jill Bosonetto own property located in Richmond at 71 Prospect Hill Road, a private road.

There are three mobile homes on the property, all placed pursuant to building permits granted in 1980. On May 18, 2009, the petitioner submitted a building permit application to the Board of Selectman of the Town (BOS) requesting permission to replace one of the mobile homes with a new three-bedroom residence at a different location on the property. On June 8, 2009, the BOS denied the application "based on the fact that the property is on a private road and the Town [of Richmond] does not have provisions for building permits on private roads." RSA 674:41, I (2008) prohibits the issuance of a building permit "for the erection of a building unless the street giving access to the lot upon which such building is proposed to be placed" meets certain criteria. With regard to private roads, the statute explicitly provides that permits may be issued only if, among other things, "the local governing body . . . has voted to authorize the issuance of building permits for the erection of buildings on said private road." RSA 674:41, I(d)(1). The statute also sets forth an appeal process to the ZBA, and authorizes the ZBA to "make any reasonable exception and . . . issue a permit . . . if the issuance of the permit or erection of the building would not tend to distort the official map or increase the difficulty of carrying out the master plan upon which it is based, and if the erection of the building or issuance of the permit will not cause hardship to future purchasers or undue financial impact on the municipality." RSA 674:41, II (2008). In its denial, the BOS recommended that the petitioner pursue an appeal to the ZBA. On June 25, 2009, the petitioner appealed the decision to the ZBA. On July 28, 2009, the ZBA conducted a public hearing, and, on August 5, 2009, the ZBA visited the site of the proposed building. On August 10, 2009, the ZBA deliberated on the matter. At its deliberation, the ZBA determined that the petitioner has a vested right to use the existing structures because building permits were issued for them. Several of the members noted, however, that that right does not permit the petitioner to replace the existing mobile home with a building on a different "footprint" and at a different location. The ZBA discussed whether the request could be granted pursuant to the factors contained in RSA 674:41, II, and, upon an oral motion, "den[ied] the application based on the criteria of 674:41." Mr. Bosonetto was present at this meeting. On August 17, 2009, the ZBA convened to review a draft of a "Notice of Decision," which provided the following reasons for the ZBA's decision: 1. The [ZBA] decided that the issuance of the building permit and the construction of the 3-bedroom house would increase the difficulty in carrying out the Master Plan.

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2. The [ZBA] decided that the construction of the 3-bedroom house would cause hardship to future purchasers. 3. The [ZBA] decided that the granting of the building permit could cause undue financial impact on the municipality. 4. The [ZBA] decided that the applicant does not have a vested right to replace the existing mobile home with a 3-bedroom house on a "footprint" larger and at a different location than that of the existing mobile home. (Emphasis omitted.) One ZBA member stated that he "did not feel he had voted on anything to do with vested rights." Another member, however, explained that the ZBA had discussed the issue at length at the August 10, 2009 meeting and that each member was asked what his or her view was on the issue. The ZBA ultimately voted to approve the draft notice of decision without any additional deliberation and without a new vote on the application or any subsidiary matter. The notice was placed on file for public inspection the day after the meeting, on August 18, 2009. On August 24, 2009, a Town clerk provided Mr. Bosonetto with instructions on how to appeal the decision. Those instructions, on ZBA letterhead, explained that to appeal the decision, the petitioner must first ask the ZBA for a rehearing. The instructions then stated that "[t]he motion must be made within 30 days after the decision is filed and first becomes available for public inspection." The instructions also contained the following language in bold: "The [ZBA] strongly recommends that, before making any appeal, you become familiar with the zoning ordinance, and also with the New Hampshire Statutes . . . covering planning and zoning." On September 14, 2009

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