New Hampshire Municipal Association
New Hampshire Municipal Association

Court Update

Motion for Rehearing Required in RSA 155-E Permitting Process Before Appeal to Superior Court

K & B Rock Crushers, LLC & a. v. Town of Auburn
No. 2005-211, 5/19/2006

This case addresses appeal procedures when the local regulator, in this case the town planning board, makes a decision on a request for an excavation permit under RSA 155-E. The Court ruled that before the decision can be appealed to the superior court, a motion for rehearing must be made to the regulator.

An application was filed with the planning board for a permit to excavate and crush rock on 5.5 acres in the Town of Auburn. The board ruled that the application was complete for only a 1.6 acre excavation. Without filing a motion for rehearing, the applicant appealed directly to superior court, relying on RSA 677:15, which allows decisions of the planning board to be appealed directly to superior court. The town moved to dismiss the case, arguing that the superior court did not have jurisdiction to hear the case because the applicants did not first file a motion for rehearing as required in RSA 155-E:9.

The Court agreed with the town, reasoning that RSA 155:E:9 clearly sets forth the procedure to appeal an excavation permit decision. First, any interested person affected by the decision may appeal to the regulator for rehearing. Second, any person affected by the regulator’s decision on a motion for rehearing may appeal according to the procedures set out in RSA 677:4-15. The Court noted that the statute allows for appeals to superior court of the regulator’s rehearing decision, but not the regulator’s initial decision.

The Court observed that RSA 155-E:9 is a specific grant of authority to municipalities to regulate a particular land use, noting that “the regulation of earth excavation is an exercise of the police and general welfare powers of the towns, exclusive of the authority granted by the zoning enabling legislation.” Moreover, the Court pointed to the placement of the excavation statute in Title XII, governing public safety and welfare, instead of in Title LXIV, the planning and zoning laws, as further evidence of the legislature’s intent to grant authority independent of the zoning enabling laws. The procedures set forth in RSA 677:4-15 will only apply after the motion for rehearing has been decided. Thus, an interested person who wishes to appeal a regulator’s ruling on an excavation permit must follow the procedures of RSA 155-E:9 by first filing a motion for rehearing with the regulator. Then, and only then, will the superior court have jurisdiction to act on the appeal.

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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