By David R. Connell
Fairness is a recurrent issue in zoning board of adjustment proceedings because of the statutory requirement that “the concurring vote of 3 members of the board shall be necessary to reverse any action of the administrative official or to decide in favor of the applicant on any matter on which it is required to pass." RSA 674:33, III. Boards of adjustment consist of five members, RSA 673:3, and a majority of the membership constitutes a quorum. RSA 673:10. Thus a case may be decided by four or even three members. Applicants are understandably reluctant to proceed with a three- or four-person board, especially in controversial cases. The Office of Energy and Planning handbook, The Board of Adjustment in New Hampshire (February 2007), suggests that boards can offer applicants the option of a postponement when fewer than five members are present. On the other hand, especially in controversial cases, abutters may have expended considerable energy and money to bring neighbors out and to hire professionals to appear at the public hearing. They will understandably be opposed to postponements.
Such situations are hard to avoid. Board members can be difficult to recruit and retain. People travel on business. Members are occasionally disqualified. Inevitably, therefore, zoning boards of adjustment are faced from time to time with issues as to how to proceed with fewer than five regular members present and voting.
Q. Where there is a vacancy after a member resigns, an alternate can be designated to fill in at the next meeting, right?
A. Wrong. Under RSA 673:11 alternates may be designated to act only when a regular member is absent or disqualified, not in the event of vacancy. This highlights the importance of timely action by the appointing authority to fill vacancies.
Q. If a member’s term has expired, but no new member has been appointed yet, is there a vacancy?
A. Actually, no. Under RSA 41:3 and Attorney-General v. Bond, 81 N.H. 269 (1924), unless the law expressly says otherwise, an appointed board member whose term expires may remain in office until a successor is appointed and qualified.
Q. Suppose a board of adjustment has an application for a use variance for a major project. The applicant and abutters have extensive presentations. If a public hearing extends for several meetings, and a member misses part of the public hearing, does the member have to abstain from voting in the case?
A. In most cases, no. The board member may participate in deliberations and vote on the application as long as the member has studied the record well enough to become familiar with all the evidence. The member can review minutes or recordings of the hearing that the member missed and read the exhibits introduced that night. In the recent case of Auger v. Town of Strafford, (Opinion issued August 23, 2007), the New Hampshire Supreme Court examined this rule of administrative law and explained that personal attendance at the public hearing is absolutely necessary only where the issue of witness credibility is critical. This is rare in a land use case because expert testimony can be adequately evaluated from a written record. Appeal of Seacoast Anti-Pollution League, 125 N.H. 708, 716 (1984). Needless to say, board members should not make this a routine practice.
Q. What should happen if members who voted on the application itself have been replaced by the time the board considers a motion for rehearing? Can new members vote on whether to grant a rehearing?
A. Yes, that would be a permissible option, if the new members familiarized themselves with the record. In Appeal of Alton School District, 140 N.H. 303, 313-14 (1995), an appeal from the decision of a state agency, the Supreme Court upheld a decision in which one three-member panel made the initial decision, and a different three-member panel voted to deny the motion for reconsideration. Of course, this would not be necessary if at least three of those who made the original decision are still members and are present to vote on whether to grant a rehearing. Only a majority vote is required to grant or deny a rehearing.
Q. Well, then, can a member who is on a business trip review the record and vote by e-mail or by conference call with the board?
A. Probably not. Under RSA 91-A:2 members must vote at meetings. When the law was enacted, modern means of communication were not contemplated. The safe interpretation is that physical presence is required. House Bill 377, introduced in the 2007 session of the legislature, would clarify many electronic meeting and records questions under RSA 91-A. The bill was retained for possible action during the 2008 session.
Q. Suppose that our hotly contested use variance case is heard by a panel of three members. One member feels overwhelmed by the pressure and abstains from voting. The other two members vote to deny the variance, but was there a decision by a quorum?
A. Yes. The abstaining member has not lived up very well to the responsibilities of the office. Nevertheless, as the Supreme Court pointed out in Town of Merrimack v. McCray, 150 N.H. 811 (2004), members who abstain are still counted for purposes of a quorum. The variance has been denied.
Q. Suppose, instead, that the case is heard by a panel of four members, who split two for approval, two for denial. What is the result?
A. The Office of Energy and Planning (OEP) handbook, on page 38, points out that the failure of a motion to pass does not mean that the opposite outcome automatically prevails. The handbook suggests that, if the board cannot pass a motion either to approve or deny by a majority, then the board should continue the matter until a fifth member can be present (who presumably would become familiar with the record). On the other hand, some boards of adjustment would regard the two-to-two tie vote as a denial of the variance, reasoning that the applicant did not obtain three favorable votes. This issue has not been addressed by the New Hampshire Supreme Court. Decisions of appellate courts in other states are divided: some rule that the application fails, some that no action has been taken by a tie vote. See Anderson’s American Law of Zoning, Volume 4 (4th ed.) sec. 22.45. Boards of adjustment can clarify the situation by a procedural rule to deal with how tie votes will be treated.
Q. Finally, suppose again that only three or four members can be mustered for the major use variance case. Does the applicant have a legal right to receive a continuance so the case can be heard by a full board of five members?
A. The issue of whether the three-vote requirement gives applicants a legal right to a decision by a five-member board of adjustment is also an open question under New Hampshire law. However, the Standard State Zoning Enabling Act (1926), the model for the statutes of many states, called for the concurrent vote of four members to decide in favor of an applicant, so similar requirements are found in the laws of many states. Challenges have not been successful. See Anderson’s sec. 22.45. If a board denies a continuance, the applicant may proceed, needing to convince three of three, or three of four, members. Failure is final because the same application cannot be presented again under Fisher v. Dover, 120 N.H. 187 (1980). Under these circumstances the applicant may elect simply to withdraw its application and refile at a later time, incurring additional fees and costs. Again, this highlights the importance of the board of adjustment having a full complement of members and available alternates.