New Hampshire Municipal Association
New Hampshire Municipal Association

Court Update

Conservation Commission Has No Standing to Appeal ZBA Decision

Hooksett Conservation Commission v. Hooksett Board of Adjustment
No. 2001-370, 1/23/2003

In this case the Court determined, in a 3-2 decision, that a municipal conservation commission has no standing under the law to appeal a decision of the zoning board of adjustment to the superior court under RSA 677:4.

This case began when a developer, Sered Memorial, LLC, applied to the planning board for site approval for its proposed convenience store and retail gasoline sales facility. The conservation commission reviewed the application and sent a memorandum to the planning board stating that it had determined that the proposed development violated the terms of the zoning ordinance. The planning board then asked the code enforcement officer for an interpretation of the zoning ordinance. The code officer concluded that the proposed use of the property complied with the zoning ordinance. The conservation commission appealed this decision of an administrative official to the ZBA, which denied the conservation commission’s appeal. The commission sought a rehearing and when that request was denied, appealed to the superior court under RSA 677:4, which allows “any person aggrieved” by an order or decision of the ZBA to appeal to superior court. The ZBA asked the trial court to dismiss the commission’s appeal, but the court refused and later overturned the ZBA’s decision on the ground that the developer’s proposal was prohibited by the zoning ordinance.

There was no question in this case of whether the conservation commission had authority to appeal the decision of the code enforcement officer to the ZBA. RSA 676:5 says that such appeals may be made by “any person aggrieved or by any officer, department, board, or bureau of the municipality affected by the decision of the administrative officer.” As a board of the municipality, the conservation commission had the authority to appeal the code enforcement officer’s decision to the ZBA.

But did the conservation commission have authority to appeal the ZBA decision to superior court? The Court said that determining whether a conservation commission has standing to appeal a ZBA decision to superior court hinges on whether it had authority in the first place to seek a rehearing before the ZBA.

The statute allowing appeals of ZBA decisions to superior court, RSA 677:4, defines “person aggrieved” as “any party entitled to request a rehearing under RSA 677:2.” RSA 677:2 permits “the selectmen, any party to the action or proceedings, or any person directly affected thereby” to apply for a rehearing of a decision of the ZBA. The conservation commission argued that it was a “party to the action or proceedings,” since it had initiated the appeal of the code officer’s decision to the ZBA. The ZBA argued that only the selectmen had authority to seek a rehearing of the ZBA’s decision, not the conservation commission, and therefore the conservation commission had no standing to appeal to superior court.

In resolving this issue, the Court turned first to the meaning of the words of the statutes and, finding ambiguity in the language, looked at the legislative history of the statutes back to the early 1940s. That history, the Court said, did not clarify whether the legislature intended that only the selectmen and not other municipal boards could seek a rehearing of a ZBA decision. “We are not persuaded that the legislative history provides sufficient guidance to determine the legislature’s intent,” the Court said, and turned, under the rules of statutory construction, toward “the policy sought to be advanced by the entire statutory scheme,” which persuaded at least three of the five members of the Court that “the legislature did not intend for all municipal boards to have standing to move for rehearing and to appeal the ZBA’s decision to superior court.”

The Court noted that municipal boards may often disagree with the ZBA’s interpretation of the zoning ordinance. “If municipal boards were permitted to appeal in every such instance, ‘the prompt and orderly review of land use applications … would essentially grind to a halt.’” (The Court here quoted from a New Jersey appellate decision.) Such suits would cause delays and “unfairly victimize property owners, particularly when no party directly affected by the action such as abutters has seen fit to challenge the application.”

The Court also reasoned that public funds would be used to pay for both sides of such litigation, “even though the public’s interest will not necessarily be served by the litigation.” Such litigation would “invite confusion in government” and, the Court said, “such ‘wrangling among governmental units’ should be minimized.”

The Court further invited the legislature to clarify the language of the statutes if it “believes that unintended consequences have beset its statutory language.”

The conservation commission had argued that it was a “party to the action or proceedings” because it had a duty under RSA Chapter 36-A to protect the municipality’s natural resources. The Court disagreed, saying, “Any duty the commission has to protect Hooksett’s natural resources and watersheds provides it the authority to appeal only the code enforcement officer’s decision to the ZBA under RSA 676:5.”

The two dissenting justices believed that it was “evident” that the conservation commission was a “party to the action” because it initiated the appeal to the ZBA and, therefore, had standing to appeal to the superior court.

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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