New Hampshire Municipal Association
New Hampshire Municipal Association

Court Update

Procedure Clarified for ZBA Appeals

Michelle J. Robinson v. Town of Hudson
No. 2001-671, 3/14/2003

In this case, the New Hampshire Supreme Court clarified certain aspects of the process by which a zoning board of adjustment (ZBA) decision is appealed to the superior court.

The plaintiff had applied for a variance relative to road frontage requirements that was denied by the ZBA. The ZBA found that the plaintiff failed to satisfy two of the five variance requirements. The plaintiff’s motion for rehearing was also denied. The plaintiff appealed to the superior court. The superior court dismissed the case on the basis that the plaintiff failed to preserve her appeal rights because her motion for rehearing did not address all five variance requirements but, instead, raised only the two that were the basis for the denial. The superior court relied upon RSA 677:3. That statute provides, in pertinent part:

A motion for rehearing … shall set forth fully every ground upon which it is claimed that the decision or order complained of is unlawful or unreasonable. No appeal from any order or decision of the zoning board of adjustment, a board of appeals, or the local legislative body shall be taken unless the appellant shall have made application for rehearing as provided in RSA 677:2; and, when such application shall have been made, no ground not set forth in the application shall be urged, relied on, or given any consideration by a court unless the court for good cause shown shall allow the appellant to specify additional grounds.

The superior court interpreted RSA 677:3 as requiring the plaintiff to raise all five variance requirements in her motion for rehearing in order for the variance issue to be preserved for superior court review. The Supreme Court reversed the decision and wrote “We do not read ‘shall set forth fully every ground upon which it is claimed that the decision or order complained of is unlawful or unreasonable’ to place the burden on a [plaintiff] to raise in a motion to reconsider conditions that were not specifically denied by the ZBA.” The Supreme Court concluded that a plaintiff must include in her motion for rehearing only those elements that were specifically denied by the ZBA in its notice of decision, not all elements that were heard by the ZBA.

The plaintiff had also appealed the superior court’s decision to disallow testimony of the town engineer at the trial in the matter. The engineer’s testimony had not been part of the certified record transferred to the court by the ZBA. Pursuant to RSA 677:10, the superior court may hear additional evidence in order to assist the court in evaluating the ZBA decision. The court usually receives additional evidence when the record transferred by the ZBA is either incomplete or nonexistent. The decision to receive additional evidence is within the discretion of the court.

In this case, the superior court concluded that the town engineer’s testimony was irrelevant to the issue on appeal; that issue being whether the plaintiff was entitled to a variance. It was on that basis that the court decided to exclude the engineer’s testimony. The Supreme Court agreed, and held that the decision to not allow the plaintiff to supplement the record was a sound exercise of the superior court’s discretion.

Please be advised that the foregoing case summary is based upon a Supreme Court slip opinion. Slip opinions are subject to change following motions for rehearing and/or motions for reconsideration. The Court may also modify the opinion without motion. The final version of the Court’s opinion is that which appears in the New Hampshire Reports.

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