When Overturning a ZBA Decision the Matter Does Not Have to be Remanded to the ZBA if the Record is Sufficient to Permit Reviewing Court or Board to Render a Final Decision as a Matter of Law

Ellen & Ronald Campbell v. Town of Pelham
Housing Appeals Board Case No. ZBA – 2022-30
Monday, April 24, 2023

Ronald and Ellen Campbell (Campbells) applied for and received dimensional variances from the Pelham ZBA.  These variances allowed construction on a lot with 6,680 square feet where 43,560 square feet were required, a 50-foot frontage where 200 feet were required and eight-foot setbacks where 15-foot setbacks were required.  Because the parcel only had frontage on a private road the ZBA decision noted the Campbells needed Select Board approval for a building permit after comment by the Planning Board as required by RSA 674:41.    

The Campbells applied for a building permit with Pelham’s planning department; the select board also did a site walk and denied the Campbells permit application because of safety concerns and the influence of the Planning Board’s comment. The Campbells appealed the select board’s denial to the ZBA citing RSA 674:41, II, which gives the ZBA the authority to grant a building permit where it was denied by the select board and exempt lots from the frontage requirements of RSA 674:41.  After a public hearing the ZBA voted to deny the appeal citing deference to the select board’s decision. The Campbells moved for rehearing, arguing that the ZBA had erred in its decision by applying an incorrect standard of review; the ZBA denied this also. Subsequently, the Campbells brought their appeal to the Housing Appeals Board (HAB).

Looking at the requirements or RSA 674:41, II the HAB found that the ZBA had indeed erred in failing to consider the Campbells’ application for relief.  The HAB concluded the ZBA misconstrued the Campbells’ request in an unlawful manner, and instead of remanding the matter back to the ZBA the HAB determined it could rule the Campbells met the necessary legal standards under RSA 674:41, II.  Upon examination of the entire record before the ZBA, Planning Board and Select Board the HAB reversed the ZBA decision and granted the relief sought by the Campbells under RSA 674:41, II. 



Additional Information: 

Practice Pointer: Where the ZBA has not addressed a factual issue, the trial court ordinarily must remand that matter to the ZBA for further consideration. However, remand is unnecessary when the record reveals that a reasonable fact finder necessarily would have reached a certain conclusion. Upon a finding that a ZBA applied the wrong legal standard, the trial court or the Housing Appeals Board is ordinarily obligated to remand to the zoning board to reconsider the evidence using the correct legal standard.  Provided, however, no remand is necessary and the reviewing court or board can issue a decision affirming or reversing and ZBA decision if it is determined, as a matter of law, that the aggrieved party had met the correct legal standard.