New Hampshire Municipal Association
New Hampshire Municipal Association

Court Update

In Administrative Appeal, ZBA Does Not Defer to Decision Made by Historic District Commission

Ouellette et al. v. Town of Kingston
No. 2007-589, 8/15/2008

A key role of the zoning board of adjustment (ZBA) is to decide appeals from decisions of the official or board who administers and enforces the zoning ordinance. RSA 674:33, I (a); RSA 676:5. As recently as the case of McNamara v. Hersh (Case No. 2007-225, April 4, 2008), the New Hampshire Supreme Court held that abutters could challenge a building permit only by appeal to the ZBA because of the statutory scheme that recognizes the value of ZBA administrative expertise. (Court Update, New Hampshire Town and City, May 2008, p. 39.) In this case, for the first time, the Court was called upon to determine whether the ZBA is required to defer to the judgment of the “administrative official,” in this instance the historic district commission (HDC).

Konover Development Corporation (Konover) sought approval to construct a supermarket in the Kingston historic district. Under RSA 676:8 and :9 no building permit may be issued in an historic district without a certificate of approval from the HDC, after its review of advice, reports and recommendations from various town officials, groups and individuals with expertise. The ordinance set forth various criteria for compatibility of new development with the character of the district. The Kingston HDC denied a certificate of approval, and Konover appealed to the ZBA under RSA 677:17, which allows aggrieved persons to appeal HDC decisions to the ZBA in accordance with RSA 676:5. The ZBA held a public hearing and considered the case de novo, which means the ZBA made its own decision on the evidence without deference to the findings or decision of the HDC. The ZBA granted approval to Konover, and the plaintiffs, Kingston citizens, appealed to the superior court, which upheld the ZBA’s decision.

On appeal to the Supreme Court the plaintiffs claimed that the ZBA had applied the wrong standard of review. First the plaintiffs pointed to the language of RSA 674:33, I (a), which provides ZBA power to decide appeals “if it is alleged there is error … by an administrative official….” They argued that the ZBA should not consider an appeal de novo but should uphold the administrative decision unless there is a “clear error.” The Court, however, pointed to the language of RSA 674:33, II, which provides that the ZBA “shall have all the powers of the administrative official from whom the appeal is taken.” The Court concluded that “the ZBA is authorized by statute to step into the shoes of the administrative official. Although the words ‘de novo’ do not appear in the statute, the authority to act as the HDC is its functional equivalent.” The Court then reviewed cases from other states that adopt the same de novo standard of review for administrative appeals to the zoning board of adjustment.

Next the plaintiffs argued that appeals from decisions of historic district commissions are unique administrative appeals and should be entitled to a “clear error” standard of review because of the HDCs’ “special qualifications” under the statutes establishing historic district commissions, ordinances and regulations. RSA 674:45 et seq. The Court acknowledged the special responsibilities of the HDC but rejected the argument that this created a different standard of review in ZBA appeals.

Applying the deferential standard of review in ZBA appeals, the Court upheld the trial court’s ruling that the ZBA decision was not unlawful or unreasonable.

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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