New Hampshire Municipal Association
New Hampshire Municipal Association

Court Update

Abutters Must Exhaust Administrative Remedy by Appealing Building Permit to ZBA

McNamara et al. v. Hersh et al.
No. 2007-225, 4/4/2008

It is a familiar rule in administrative law that parties must “exhaust their administrative remedies” before resorting to litigation in the courts. The rule defers to administrative control and expertise and promotes judicial efficiency. It also assures interested parties that a decision is final unless a timely appeal is taken. A common example is the building permit process. Under RSA 674:33 and 676:5 anyone dissatisfied with a decision to issue or deny a building permit must appeal to the zoning board of adjustment within a reasonable time (determined by ZBA rule). The ZBA decides whether the permit should have been issued under the terms of the zoning ordinance, and the ZBA decision is then subject to further review by the superior court.

The requirement to exhaust administrative remedies does not apply to all zoning and planning disputes. The New Hampshire Supreme Court has held that the rule does not apply where the nature of the issue is beyond administrative expertise, such as a challenge to the validity of a zoning ordinance. In such cases plaintiffs are allowed to file suit in superior court without first seeking a ruling from the administrative official and appealing to the board of adjustment.

In this case the McNamaras did not appeal issuance of a building permit to the Hershes for a house on an abutting lot. Instead, ten months after construction began, the McNamaras filed in superior court for a declaratory judgment claiming that the house exceeded the maximum lot coverage permissible under the zoning ordinance. The trial court dismissed the suit for failure to exhaust the administrative remedy—an appeal to the board of adjustment.

On appeal the Supreme Court upheld the trial court for two reasons. First the Court pointed out that issuance of a building permit in violation of a zoning ordinance is precisely the sort of error a zoning board of adjustment is intended to correct. The Court also ruled that the declaratory judgment action could not be allowed “after the appeal period expired, as that would undermine the finality of the [building permit] decision and leave the Hershes subject to uncertainty as to their rights.”

This case is noteworthy because the opinion thoroughly discusses the doctrine of exhaustion of administrative remedies and reaffirms that exceptions to the rule are quite narrow.

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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