___________________________

Rockingham

No. 98-153

EDWIN AND STEPHANIE SIMONSEN

v.

TOWN OF DERRY

November 15, 2000

Donahue, Tucker & Ciandella, of Exeter (John J. Ratigan on the brief and orally), for the plaintiffs.

Boutin & Associates, P.L.L.C., of Londonderry (Steven A. Clark and Edmund J. Boutin on the brief, and Mr. Boutin orally), for the defendant.

H. Bernard Waugh, Jr., of Concord, by brief, for New Hampshire Municipal Association, as amicus curiae.

NADEAU, J. The defendant, the Town of Derry (town), appeals orders of the Superior Court (Gray, J.) denying a motion to dismiss for lack of subject matter jurisdiction and granting summary judgment in favor of the plaintiffs, Edwin and Stephanie Simonsen. The plaintiffs cross-appeal the trial court's denial of their motion for attorney's fees. We affirm.

The parties do not dispute the following facts. The plaintiffs own and operate a camp in Derry containing a private nine-hole golf course. In 1997, they sought site plan approval to add an additional nine holes and to open the course to the public. The planning board approved the plan, contingent upon payment of $7,500 for off-site improvements necessitated by increased traffic.

The plaintiffs appealed to the superior court challenging the planning board's requirement that they pay for off-site improvements. The town moved to dismiss, arguing that the petition was not "duly verified," see RSA 677:15, I (1996), and thus the court lacked subject matter jurisdiction. The trial court denied the motion.

Thereafter, the plaintiffs moved for summary judgment, arguing that because the town had not enacted an impact fee ordinance, the town lacked authority to require payment for off-site improvements. See RSA 674:16, II, :21 (1996). The trial court granted the motion, finding "no facts in dispute which affect the fact that no impact fee ordinance has been adopted." The court denied the plaintiffs' subsequent motion for attorney's fees. This appeal and cross-appeal followed.

The town first argues that the trial court erred by not dismissing the appeal for lack of subject matter jurisdiction. RSA 677:15 provides in part:

I. Any persons aggrieved by any decision of the planning board concerning a plat or subdivision may present to the superior court a petition, duly verified, setting forth that such decision is illegal or unreasonable in whole or in part and specifying the grounds upon which the same is claimed to be illegal or unreasonable. Such petition shall be presented to the court within 30 days after the decision of the planning board has been filed and first becomes available for public inspection in the office of the planning board or of its clerk or secretary.

(Emphasis added.) We have held that compliance with the thirty-day filing period is a jurisdictional prerequisite to an appeal under RSA 677:15. See Dermody v. Town of Gilford, 137 N.H. 294, 296, 627 A.2d 570, 571 (1993). Thus, the town argues that the plaintiffs' failure to file a petition that was "duly verified" within the thirty-day filing period "divested the Superior Court of jurisdiction to hear this matter."

In ascertaining legislative intent, we look first to the words of the statute, ascribing to them their plain meaning wherever possible. See State v. Cobb, 143 N.H. 638, 643-44, 732 A.2d 425, 431 (1999). The term "verify" is commonly understood to mean "[t]o confirm or substantiate by oath or affidavit." Black's Law Dictionary 1561 (6th ed. 1990). Within the context of pleading requirements, a statutorily required verification assures that allegations of a party are made in good faith. See Federated Mortg. and Inv. Co. v. Jones, 798 S.W.2d 719, 721 (Mo. 1990) (en banc).

Ordinarily, however, the verification does not "constitute a part of the pleading itself but, rather, goes to the form of the pleading." Id.; see also In re Interest of L.D., 398 N.W.2d 91, 98 (Neb. 1986). See generally 61B Am. Jur. 2d Pleading