New Hampshire Municipal Association
New Hampshire Municipal Association

Court Update

Appeal Period from Planning Board to ZBA Begins to Run at Conditional Approval

Atwater v. Plainfield
No. 2009-199, 7/20/2010

Occasionally, during subdivision or site plan review, a planning board makes a decision "based upon the terms of the zoning ordinance, or upon any construction, interpretation, or application of the zoning ordinance…." Appeals from such decisions must be taken to the zoning board of adjustment (ZBA). This opinion and Saunders v. Kingston (discussed below) both addressed the time at which the appeal period from a planning board to a ZBA begins to run.

In this case, the planning board conditionally approved an application for site plan review. Final approval was granted 14 days later. The petitioners filed an appeal to the ZBA 28 days after the original conditional approval had been issued. The ZBA denied the appeal, finding that it had been filed 13 days late. The superior court upheld this decision, and the petitioners appealed to the Supreme Court. The Supreme Court agreed, holding that the 15-day appeal period found in the local zoning ordinance began to run as soon as the conditional approval was issued.

The confusion stemmed from the fact that there are two avenues of appeal from a decision of a planning board with two different appeal periods, depending upon the nature of the claim. One appeal is directly to the superior court under RSA 677:15, I, for "any decision of the planning board concerning a plat or subdivision…." That appeal period is 30 days from the issuance of the planning board's decision, and only begins to run after the planning board has issued a final approval. If the board issues a conditional approval, an appeal to the superior court cannot be filed until the conditional approval is converted into a final approval. (The petitioners in this case had filed such an appeal, and that case was resolved in an earlier opinion found at 156 N.H. 265 (2007).)

The other course of appeal, which was under consideration in this case, is to the ZBA under RSA 676:5, III. These appeals must be filed "within a reasonable time, as provided by the rules of the board…." RSA 676:5, I.

In this case, the zoning ordinance provided that the appeal period to the ZBA was 15 days. The Court was asked to determine when it began to run. The petitioners argued this appeal was just like a direct appeal to the superior court under RSA 677:15, I, and that the appeal period did not begin to run until the planning board issued its final approval. The Court disagreed, noting there was no indication in previous cases or in the statute that the parties must wait for final approval of a site plan before they bring an appeal to the ZBA challenging the planning board's interpretation or application of a zoning ordinance. On the contrary, "allowing or requiring parties to wait until a final vote of the board before challenging zoning determinations would be inefficient, and would impose significant hardship on applicants seeking site plan approval. As a practical matter, it makes far more sense to resolve the question of whether a planning board's interpretation or application of the zoning ordinance is accurate as early as possible in the application review process."

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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