Court Will Not Hear on Appeal Any Claim of Error Not Heard by the ZBA Itself

Laura Fox v. Town of Greenland; Town of Newington v. Town of Greenland
Laura Fox v. Town of Greenland; Town of Newington v. Town of Greenland
No. 2004-103
Wednesday, December 29, 2004

In November 2001, Packard Development, LLC petitioned the zoning board of adjustment in Greenland for a special exception to construct and operate a 300,000 square foot retail sales mall on a 54-acre industrially zoned property. Due to traffic and other concerns, the project was treated as a project of regional impact under RSA 36:54 to 58, and the abutting municipalities of Newington and Portsmouth were provided notice. Following five public hearings over a period of months, the board granted a special exception, subject to 16 conditions. Following denial of a request for rehearing, a group of abutting landowners and the Town of Newington appealed to the superior court, alleging six separate grounds for reversal of the decision.

The trial court remanded the matter to the ZBA. Specifically, it found that a member who failed to attend two of the five hearings should have been disqualified from the final vote. It also found that the ZBA had failed to follow its own procedures when it failed to have an engineering report submitted by the applicant independently reviewed by the town’s engineers. Finally, it found that under the terms of the local ordinance, the ZBA had jurisdiction to adjudicate the application, and had properly determined that retail use was permitted in the industrial zone by special exception. The abutters appealed to the Supreme Court, arguing that the remand was improper, and the applicant cross-appealed arguing that the superior court decision regarding the disqualified member was erroneous. The developer-applicant did not appeal the finding that the ZBA had failed to follow its own procedures with regard to review of the engineering report.

The Supreme Court found that the abutters had failed to raise the issue of the disqualification of the member in a timely fashion before the zoning board of adjustment, and thus had not preserved the issue for review in court. The court then reviewed the question of whether retail use was permitted in the industrial zone as an issue of law under the local ordinance, and agreed with the trial court that retail use was permitted in the industrial zone by special exception. In the end, the case was remanded to the ZBA for further hearings to resolve the issue that the developer did not appeal.

Interestingly, the Court did not rule that all members of a zoning board of adjustment must be physically present at all hearings before taking part in the ultimate vote on an issue. Larger development proposals are complex cases that may require multiple hearings that span a period of days or even months. It is entirely predictable that one or more volunteer members of a board might need to be absent at some time during the hearing process in a complex case, especially if the board does not meet on a regular schedule. If a member is to be absent from one or more of these hearings, it is critical that the record reflect that the absent member has later actually received and actually reviewed all of the documentary evidence presented, and probably also listened to any audio or videotape record of the proceeding before undertaking to vote on the issues presented.

The case is important both to developers and to opponents of development, since it stands for the proposition that a court will not hear on appeal any claim of error that has not been raised before the zoning board of appeals itself either in the hearing on the merits or in a request for rehearing. It is incumbent upon both developers and their opponents to bring all perceived errors of law or procedure to the attention of the board at the earliest possible time in order to permit the ZBA an opportunity to correct its own mistakes, or the issue will not later be heard in court.

The case is important to zoning boards of adjustment, since it emphasizes that the board has an obligation to strictly follow its own rules of procedure as it adjudicates the cases brought before it. Just as in a court of law, the process used to make a decision in a pending case is often just as important as the underlying facts. Thus, it is now even more important for a zoning board of adjustment to create and adopt written rules of procedure that set forth how the local board will deal with problems of attendance and review of evidence in complex cases.

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.