New Hampshire Municipal Association
New Hampshire Municipal Association

Court Update

Lack of Findings in a ZBA Decision Is Not Necessarily “Error”

Kalil v. Town of Dummer ZBA
No. 2006-381, 4/19/2007

The plaintiffs applied to the town’s board of selectmen for building permits to build three new structures in a conservation overlay zone. The selectmen denied the applications, ruling that the building of new structures was not permitted in that zone, and that the proposed structures were not permitted uses. The plaintiffs appealed this decision to the zoning board of adjustment (ZBA) and applied for a variance. The ZBA denied both the appeal and the variance. The plaintiffs then appealed to the superior court, which declined to rule on the correctness of the denial of building permits, found that the ZBA’s decision to deny the variance was “under developed,” and remanded the matter back to the ZBA. The petitioners appealed this decision to the New Hampshire Supreme Court.

In reviewing the denial of the variance, the Court noted that factual findings of the ZBA are presumed to be lawful and reasonable, and that the burden is on the person challenging the decision to prove that the ZBA decision was unreasonable. The superior court may take additional evidence on appeal to assist it in evaluating the action of the ZBA. However, in this case, the superior court had not done so, and had ruled “the ZBA’s explanation for why the application failed to satisfy the variance criteria are not fully developed and in some instances do not state a definitive conclusion.” The Supreme Court found that it was within the superior court’s authority to vacate the ZBA decision and remand it for clarification. “A remand to permit clarification does not necessarily mean that the court is either ordering the ZBA to make findings or finding error where findings are absent. Nor does it mean that the court has reversed the ZBA’s decision. It simply means that the court opts not to reach the merits of the appeal because it is uncertain as to the board’s rationale or conclusions.” Presumably, once clarification is obtained, the superior court may evaluate the reasonableness of the ZBA’s decision. The Court also noted that the scope of this remand to the ZBA was limited to an opportunity for the ZBA to clarify its decision based on the pre-existing record before it. The remand “is not an opportunity for the Town, the abutters or any other party to enlarge the record or to introduce new evidence or testimony.”

Interestingly, in a discussion of what the superior court meant by its statement that the ZBA decision was “under developed,” the Supreme Court stated that the remand was only proper if the superior court had intended to say that the decision needed clarification. On the other hand, the Court stated that if the superior court had reversed the ZBA’s decision because it found the decision lacked findings, that ruling was incorrect. “Although disclosure of specific findings of fact by a board of adjustment may often facilitate judicial review, the absence of findings, at least where there is no request therefore, is not in and of itself error.”

This holding appears to mean that if a ZBA fails to include findings of fact in its decision either to approve or to deny an application or appeal, that failure alone does not constitute “error” in the decision. It is unclear how the Court intends ZBAs to respond to this ruling in light of the statutory requirement that local land use boards denying an application “shall provide the applicant with written reasons for the disapproval.” RSA 676:3, I. Until the issue is clarified, it is still advisable for ZBAs to follow this statute and also to ensure that the record accurately reflects the factual basis for the board’s decisions. The board will still be required to present findings of fact if requested, and an “unclear” decision may result in a time-consuming remand for further clarification.

The plaintiffs also claimed that the superior court should have evaluated and ruled on the denial of the building permits, particularly the issue of whether or not the proposed structures were permitted uses. The Supreme Court agreed and remanded this issue back to the superior court for a decision, noting that the resolution of this issue might make it unnecessary for the plaintiffs to seek a variance at all if the superior court found that the structures were, in fact, permitted uses.

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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