Failure to Timely File a Housing Appeals Board Appeal does not Preclude Proceeding with a Timely Appeal to the ZBA since the HAB Appeal would be Premature Before the ZBA had the Opportunity to Rule on the Zoning Questions

Newfound Serenity, LLC v. Town of Hebron
New Hampshire Supreme Court Case No. 2023-0153
Wednesday, April 3, 2024

Newfound Serenity was denied site plan approval by the Hebron Planning Board for a seasonal recreational vehicle park and Newfound appealed that denial to both the Housing Appeals Board and the Hebron ZBA.   The appeal to the HAB was dismissed as being untimely (a dismissal that Newfound did not appeal), but the appeal to ZBA was timely and the ZBA overturned four of the Planning Board’s reasons for denying the site plan but upheld one reason and declined to address two other reasons for lack of statutory authority.  Newfound then appealed the ZBA decision to the Superior Court.    

In the Superior Court the Town argued that Newfound effectively bifurcated its initial appeal such that the ZBA would review the Planning Board’s reasons for denial related to the zoning ordinance and the HAB would review the reasons for denial falling outside the ZBA’s jurisdiction. The Town asserted that because two of the Planning Board’s reasons for denying site plan approval were exclusively within the HAB’s statutory authority to review and because the HAB dismissed the plaintiff’s appeal as untimely, and the plaintiff did not appeal the dismissal to Supreme Court, the Planning Board’s decision as to those issues became final. The Town also argued that because Newfound appealed the Planning Board decision in part to the HAB, the plaintiff waived its right to bring an action in superior court. The superior court agreed with the Town and granted the motion to dismiss. This appeal followed.

On appeal to the NH Supreme Court, the Court first observed that the governing statutes require that issues arising from a planning board decision that are appealable to the ZBA must be resolved by the ZBA before an appeal can be taken to superior court or the HAB. In this case, the ZBA finally resolved the plaintiff’s appeal with its dismissal of the motion for rehearing on October 11, 2022. On October 27, 2022, Newfound plaintiff filed its complaint in superior court appealing the Planning Board and ZBA decisions. That complaint was otherwise timely and proper under the statute.  Read as a whole, the applicable statutes contemplate final resolution of zoning-related issues by the ZBA before an appeal of a planning board decision to superior court (or the HAB) becomes timely. The objective is plain: exhaustion of ZBA remedies avoids serial litigation and potentially inconsistent outcomes arising from a single site plan application. Therefore, considering this objective and under the plain language of the statutes, the plaintiff’s initial appeal to the HAB was not late; instead, it was premature.  Therefore, the dismissal by the trial court was erroneous and reversed by the court. 


Additional Information: 

Practice Pointer: Aggrieved planning board applicants whose plats or plans are rejected for reasons related to zoning compliance must first bring their appeal to the ZBA in order avoid serial litigation and potentially inconsistent outcomes.