New Hampshire Municipal Association
New Hampshire Municipal Association

Court Update

Planning Board Decisions Interpreting Zoning Ordinance Must Go to ZBA Before Court

Route 12 Books and Video v. Town of Troy
No. 2002-483, 6/9/2003

In this case the New Hampshire Supreme Court affirmed its earlier analysis in Hoffman v. Town of Gilford, 147 N.H. 85 (2001) of the process for appeals of planning board decisions codified in RSA 677:15, I and 676:5, I.

The applicant submitted a site plan review application to the town that was ultimately denied in a September 8, 2000 letter. The applicant subsequently wrote a letter to the planning board requesting a rehearing from the planning board and in the same letter asked to appeal the decision to the Troy ZBA. The town did not respond to this letter. The applicant then resubmitted the original site plan to the planning board. This application was returned without response. The applicant appealed the planning board’s denial of site plan to the superior court in late January 2001. The applicant’s appeal was ultimately denied by the superior court, citing the recently decided Hoffman case. The Supreme Court affirmed the decision of the superior court.

The planning board’s decision for denial of site plan application was based on three grounds. Two grounds were primarily derived from the town’s site plan review regulations. One reason for denial, however, was also based upon the town’s zoning ordinance.

The Supreme Court clarified its earlier holding in Hoffman making clear that,

“…when a planning board decision is based upon both zoning and planning issues, a party aggrieved by both the zoning and planning aspects of that decision must follow the respective statutory procedures for appellate review of zoning and planning issues to preserve its rights. This means that an aggrieved party may appeal such a decision to both the ZBA and superior court, to neither the ZBA nor the superior court or to only one forum or the other, depending on the nature of the claim.” (citations omitted)

The superior court originally decided, and the Supreme Court agreed, that since the applicant did not appeal the planning board decision relative to planning issues within the statutory time period (30 days) set out in RSA 677:15, I, the court lacked jurisdiction to hear the appeal. Thus, the appeal was properly denied due to the untimely filing. The Supreme Court noted that if the applicant had properly appealed the zoning related portion of the decision to the Troy ZBA, the applicant could have subsequently appealed any denial there to the superior court.

This case makes clear that appeals of planning board decisions relative to interpretation of a zoning ordinance must be appealed first to the ZBA to “exhaust the administrative remedy” before the superior court can acquire jurisdiction. Those appeals must be taken to the ZBA “within a reasonable time, as provided by the rules of the board…” pursuant to RSA 676:5, I.

In closing, the Court took a paragraph of its opinion to remind municipalities that “…it is not only their function, but it is their obligation to provide reasonable assistance to their citizens [in submitting proper applications to land use boards].” The Court commented that the town’s failure to provide the applicant with assistance in resubmission of applications and appeals was “questionable” and that the town should have redirected the applicant’s appeal to the ZBA and issued some ruling on the resubmitted application. While the applicant’s argument on this issue (that the delay in filing at superior court was due to the town’s failure to respond to its appeal attempts) did not ultimately affect the outcome of the case at the Supreme Court, municipalities should be aware that the Court has made its opinion clear on this issue.

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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