New Hampshire Municipal Association
New Hampshire Municipal Association

Court Update

Appeal Period to ZBA Begins at Conditional Approval; "Law of the Case"

Saunders v. Kingston
No. 2009-099, 7/23/2010

This case addressed some of the same issues as Atwater v. Plainfield (discussed above) regarding the appeal period for a conditional approval issued by a planning board.

First, the Court affirmed that the appeal period from the planning board to the ZBA under RSA 676:5, III begins to run as soon as a conditional approval is issued, rather than being delayed until conditional approval is converted into a final approval by the planning board. This means there are two sets of rules to appeal a planning board decision. If the appeal is going directly to the superior court under RSA 677:15, I, it may not be filed until a final approval is issued by the planning board, and the filing period is 30 days. If the appeal is going to the ZBA under RSA 676:5, III because it involves the planning board's interpretation or application of a zoning ordinance (in this case, the decision of which zoning district's regulations applied to the subject property), then the appeal period begins to run as soon as a conditional approval is issued, and the filing period is set forth in the ZBA's rules.

The other issue involved the "law of the case" doctrine. This theory provides that questions decided on appeal in one case will not be re-examined in the same case upon a later appeal. The question decided on the first appeal is known as the law of the case, and becomes binding precedent to be followed in successive stages of the same litigation. This means that issues that were actually decided (either explicitly or by necessary inference from the disposition of the case) will not be decided again.

The parties in this case (the town, the applicant and the objecting abutters) were also parties to earlier litigation regarding this project in which they had all agreed that a certain section of the town's land use regulations applied to the project. Oullette v. Kingston, 157 N.H. 604 (2008). In the current suit, the petitioners asked the Court to apply a different section of the regulations to the project instead. The Court refused, explaining that the law of Oullette governed this later case and the decision would not be changed. Interestingly, although this case was not actually a "later appeal" of the same case, the Court applied the law of the case doctrine to it because the parties were the same and the subject matter addressed was the same in both cases. This may represent a broadening of the applicability of this doctrine.

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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