New Hampshire Municipal Association
New Hampshire Municipal Association

Court Update

Rehearing Motion Satisfies Statute’s Requirement

Colla v. Town of Hanover
No. 2005-217, 1/27/2006

This case examines the issue of what satisfies the requirement of RSA 677:3, I with regard to a party’s obligation to “set forth fully every ground upon which is claimed that the decision or order complained of is unlawful or unreasonable” when applying to the zoning board of adjustment for rehearing.

The plaintiff property owners initially applied to the ZBA for three variances to build an addition to their existing residence. The ZBA granted two of the variances but denied the third request, which was for an area variance to the side setback requirements so that the plaintiffs could build a screened deck on the north side of their home. The ZBA denied this variance on the ground that there were “feasible alternatives” for achieving the desired benefit without a variance, including constructing an unroofed deck or by locating the deck in the front. The ZBA maintained that these changes would not create a substantial hardship on the plaintiffs.

The plaintiffs motioned for rehearing. RSA 677:3 requires a motion for rehearing to the ZBA to “set forth fully every ground upon which is claimed that the decision or order complained of is unlawful or unreasonable.” Additionally, no appeal of a ZBA decision may be taken without first making an application for rehearing, and, according to RSA 677:4, no ground not set forth in the application for rehearing will be considered by a court unless the court for good cause shown shall allow the introduction of additional grounds. In their motion for rehearing, the plaintiffs stated that the ZBA denied their request for a variance of the zoning setback requirements to allow for a screened deck for their home. They included the reason given by the ZBA in its denial: that there were reasonable alternatives and also gave the following grounds for rehearing: 1) the decision is unreasonable, 2) the decision denies them their constitutional rights to due process and equal protection of the laws and 3) the decision is contrary to Boccia v. City of Portsmouth, 151 N.H. 85 (2004), and 4) the decision is contrary to the ordinance.

The ZBA denied the motion for rehearing and the plaintiffs appealed to superior court pursuant to RSA 677:4. In their appeal to superior court the plaintiffs identified that they were appealing the ZBA decision to deny the variance and subsequent denial of their motion for reconsideration, and stated that the denials were “illegal and unreasonable” for the reasons set forth in their attached motion for rehearing to the ZBA. The town first answered by stating that the ZBA found no unnecessary hardship under Boccia because it found that feasible alternatives existed for the plaintiff to achieve the desired results without the benefit of a variance. The town later moved to dismiss the plaintiffs’ appeal on two grounds: 1) the motion for reconsideration to the ZBA failed to comply with RSA 677:3 in that it was so broad and non-specific that it was impossible for the ZBA to understand what errors it may have made and to address those errors, and 2) the appeal to superior court failed to comply with RSA 677:4 in that it merely incorporated, by reference, the insufficient motion for reconsideration. The superior court agreed with the town on both grounds and dismissed the appeal.

In deciding this case, the New Hampshire Supreme Court pointed out that the rehearing process is designed to give the ZBA an opportunity to correct any mistakes it may have made before an appeal to court is filed. This goal is accomplished by requiring applicants for rehearing to “set forth fully every ground upon which it is claimed that the decision or order complained of is unlawful or unreasonable.” In this case, the Court found that the plaintiffs’ motion directly listed the grounds upon which it was based. The Court wrote, “If nothing else, the plaintiffs’ motion put the ZBA on notice that the plaintiff believed that the ZBA has misinterpreted Boccia when it found that there were feasible alternatives to the screened deck they sought to build.” The Court held that the motion for rehearing satisfied the spirit and letter of RSA 677:3.

The town next argued that the trial court decision should be affirmed because the court dismissed the plaintiffs’ appeal on the alternative ground that it did not comply with RSA 677:4 which governs appeals of ZBA decisions to superior court. The Court disagreed, pointing out that the only reason the trial court found that the motion did not comply with RSA 677:4 was because it found that it did not comply with RSA 677:3. The Court pointed out that the trial court ruled that incorporating the motion for reconsideration to the ZBA “is an acceptable means of informing the trial court in an RSA 677:4 appeal of the specific grounds upon which the decision is alleged to be unreasonable or illegal.” Therefore, having previously resolved the question of whether the plaintiffs complied with RSA 677:3 in favor of the plaintiffs, the Court concluded that the plaintiffs were also in compliance with RSA 677:4. The trail court’s dismissal of plaintiffs’ appeal was reversed and remanded.

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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