New Hampshire Municipal Association
New Hampshire Municipal Association

Court Update

ZBA Has Inherent Authority to Reconsider a Denial of a Request for Rehearing within the 30-day Appeal Period

74 Cox Street, LLC v. City of Nashua
No. 2006-829, 9/21/2007

An applicant sought and received two variances from the Nashua Zoning Board of Adjustment (ZBA). An interested party objected and sought a rehearing. This request was initially denied by the ZBA, but following a further objection, the ZBA reversed itself and granted a rehearing based upon the presentation of information that was not available at the time of its earlier decision.

Before the rehearing could be conducted, the applicant filed an action in Superior Court, which was treated as a petition for certiorari, arguing that a ZBA does not have the ability to reverse its own decision denying a request for a rehearing. The trial court found that the ZBA had the inherent authority to review and reverse its own decisions, so long as the action was taken within the thirty-day statutory appeal period.

The Supreme Court affirmed, finding that the statute which grants the ZBA the authority to grant or deny a request for rehearing includes the implicit authority to reconsider its own decision on the matter within the thirty-day statutory appeal period. The principle involved is that a local board should have the first opportunity to consider any alleged errors in its decisions so that it may either immediately correct the error, or so that a court may have the benefit of the board’s judgment and explanation in a later appeal.

While the specific facts of the case concern a ZBA, the language used by the court suggests that the principle applies to all municipal boards that engage in adjudicative decision making. Thus, a planning board, or a governing body making a licensing decision, could use the same principle when considering allegations of error in their decision making process. Hereafter, a board may take action to correct its own perceived errors at any time during the normal appeal period. Interested parties now have great incentive to bring all allegations of error directly to the attention of the board in question during this period. Any party who appears to have been “successful” at a particular meeting now should be cautioned that there is no finality until the expiration of the appeal period.

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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