New Hampshire Municipal Association
New Hampshire Municipal Association

Court Update

No Right to Be Heard on Completeness of Subdivision Application

DHB, Inc. v. Town of Pembroke
No. 2004-397, 6/14/2005

In DHB, Inc. v. Town of Pembroke, the New Hampshire Supreme Court held, among other things, that the applicant did not have a right to be heard at a public meeting regarding the completeness of its subdivision application. Further, the Court concluded: (1) the trial court had jurisdiction to hear an appeal of a planning board decision regarding completeness of the plaintiff's application, although not pursuant to RSA 677:15; and (2) RSA 676:4, I(b) enabled the planning board to specify in its regulations what constitutes a complete application for purposes of invoking the board's jurisdiction and to determine whether the applicant has complied with those regulations.

The appeal concerned the following facts. The plaintiff was the owner or option holder of certain land in Pembroke. On June 23, 2003, the plaintiff submitted a subdivision application to the planning board. The Pembroke director of planning and development informed the plaintiff that the application was incomplete, and, on August 25, 2003, the plaintiff submitted a new application. The planning board had previously permitted applicants to speak at the public meeting to decide whether a subdivision application was complete. However, on October 28, 2003, it did not allow the plaintiff to do so. At that meeting, the board voted not to accept the plaintiff's subdivision application based on its lack of completeness.

Relying upon RSA 677:15, I, the plaintiff appealed the board's decision to the superior court, which affirmed the board's vote to not accept the application. On appeal, however, the Supreme Court concluded the lower court did not have jurisdiction under RSA 677:15, I. The statute provides that any person aggrieved “by any decision of the planning board . . . May present to the superior court a petition . . . Upon which the board voted to approve or disapprove the application.” Before a planning board can consider the approval or denial of an application, though, RSA 676:4, I©(1) requires the board to first accept the application as complete.

Nevertheless, the lower court had authority to hear the appeal pursuant to its power to consider petitions for writs of certiorari. Although the plaintiff did not seek a writ of certiorari, courts are not restricted by the “technical accuracy or designation of legal forms of action” or a plaintiff's mistaken requests for relief. The superior court's standard of review when considering a petition for writ of certiorari differs from its review standard under RSA 677:15, the Court noted, but determined that had the proper standard been applied it wouldn't have changed the outcome of the decision in this case.

Concluding the lower court had jurisdiction to entertain the appeal, the Court next addressed the merits of the case. RSA 676:4, I(b) provides: “A completed application . . . Shall be submitted to and accepted by the board only at a public meeting of the board[.]” Moreover, under RSA 676:4, I€: “[N]o application may be denied or approved without a public hearing on the application. At the hearing, any applicant . . . May testify in person or in writing.”

Because the statute does not define a “public meeting” or “public hearing,” the Court ascribed to them their plain and ordinary meanings. A meeting is “an act or process of coming together.” By contrast, a public hearing is “an opportunity to be heard, or to present one's side of a case.” Thus, the Court held, the applicant did not have a right to be heard at the public meeting regarding the completeness of its application.

The Court was not persuaded by the plaintiff's argument that the board's past practice allowed applicants to speak at meetings concerning the completeness of their applications. The Court reasoned that the board's procedural rules were unambiguous, and, as such, the municipality could not change its de facto policy. To do so, would undermine the clear legislative intent of the procedural rules.

Finally, the Court addressed the plaintiff's assertion that the planning board had “sufficient information to enable [it] to make an informed decision” and thus accept the application as complete. Plainly, under RSA 676:4, I(b), a planning board has authority to “specify by regulation what constitutes a completed application sufficient to invoke jurisdiction to obtain approval. A completed application means that sufficient information is included . . . To allow the board to . . . Make an informed decision.” In Pembroke's Application for Planning Board Action, a Subdivision Review Checklist is included, which contains several items of required information. With respect to subdivision applications: “A completed application is one which shall . . . Contain all the information required on said forms.” Additionally, it states: “Failure on the part of the applicant to complete any portion of the application form . . . Shall constitute an incomplete application.” Because the record was devoid of evidence to suggest that the plaintiff had satisfied these regulatory requirements for a completed application, the Court concluded the plaintiff did not submit sufficient information to enable the board to make an informed decision.

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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