Rehearings by the Planning Board

By Paul Sanderson, Esq.

Unlike the zoning board of adjustment, there is no statute that requires any participant in a matter before the planning board to move for a rehearing prior to seeking further review of a decision by appeal. This can lead to confusion when a participant in fact does move the planning board to grant a request for rehearing.

Q. Does the planning board have the ability to grant a rehearing request?
A. There are two ways to look at this issue, based upon this fundamental statement of municipal authority. “A municipality has only such powers as are expressly granted by the legislature and such as are necessarily implied or incidental thereto." Girard v. Allenstown, 121 N.H. 268 (1981).

In the first view, since there is no statute that either requires or authorizes a planning board to conduct a rehearing once a decision has been rendered, no rehearing should ever be conducted. If a participant is “aggrieved," an appeal is available to the superior court, or to the zoning board of adjustment if the issue involves an interpretation of the zoning ordinance. If an error has been made, either the superior court will remand the case back to the board for further proceedings, or the zoning board of adjustment will grant any necessary zoning relief.

In the second view, participants cite Dziama v. City of Portsmouth, 140 N.H. 542 (1995) for the idea that, “…the local board should have the first opportunity to pass upon any alleged errors in its decisions so that the court may have the benefit of the board’s judgment in hearing the appeal." While this case arose in the context of a board of adjustment appeal, the underlying idea is a fundamental concept of the law of administrative agencies, and is in part based upon a policy of conserving scarce judicial resources. See for example, In re Jamar, 145 N.H. 152 (2000), where in the context of a workers’ compensation case the court noted, “…because the legislature cannot anticipate all of the problems incidental to the carrying out of administrative duties, administrative entities generally have the implied or incidental powers reasonably necessary to carry out the powers expressly granted to them." The court allowed the board in that case to consider a request to review its own decision for errors in the first instance. The courts themselves, as adjudicative bodies, use their rulemaking powers to require litigants to seek reconsideration of the decision of a court as a precondition to filing an appeal of that decision. See, for example, New Hampshire Superior Court Rule 59-a.

Q. What if a participant has actually filed a motion for rehearing? Will be the planning board be safe if it simply ignores the request?
A. That is what happened in the case of Route 12 Books & Video v. Town of Troy, 149 N.H. 569 (2003). Although the planning board escaped sanction due to the particular facts of the case, the supreme court found the Town’s conduct to be “questionable" and repeated the holding of Richmond Co. v. City of Concord, 149 N.H. 312 (2003), “…we recently reminded municipalities that it is not only their function, but it is their obligation, to provide reasonable assistance to their citizens in such cases." Thus, the motion should not be ignored, it should be considered and ruled upon by the planning board.

Q. Is the planning board required to grant a rehearing in every case?
A. Because there is no statute that requires a rehearing, the planning board is never required to grant the request as a matter of law. Whether the board should consider a rehearing depends in part upon the procedural status of the application, and what type of decision the planning board actually reached in the matter. The following are some possibilities, and some factors that might assist the board in making its choice:

1. The decision is made during the process of subdivision or site review, but the decision is not the “final" decision on the application. An example would be a decision that the application is not complete. This type of decision is likely to be appealable to the superior court by a petition for certiorari if there is a material impact upon the applicant’s property rights. See DHB, Inc. v. Town of Pembroke, (June 14, 2005). Thus, in the interest of reducing litigation costs, or in the interest of providing the constitutionally required “reasonable assistance" to an applicant, the board could grant a rehearing to deal with an argument that appears to have some merit. On the other hand, if an applicant actually offered an application that was seriously deficient under the board’s regulations, the planning board is not required to allow the applicant a second chance to be unprepared.

2. The decision grants a “conditional" approval, and a participant feels that the conditions are somehow not appropriate. This might be the applicant, who feels that the conditions are too strict, or an abutter, who feels that the conditions are not strict enough. The board should review RSA 676:4, I (i) to decide if the conditional approval is sufficiently “final" to allow for an appeal by either participant. If the decision is not final, the planning board should resolve the issue since the case is still within its control.

If the conditional approval is indeed final, and if the condition involves an interpretation of the zoning ordinance, an appeal is available to the zoning board of adjustment. It is unlikely that a rehearing will help with this type of concern, unless the interpretation made by the board was initially controversial, and it has since sought or might now seek further advice from town counsel or other sources. If the condition relates to a planning issue, a rehearing might be of assistance if the participant has new or additional expert or professional evidence to offer regarding the process of compliance with the condition.

3. The decision is a “final decision," and the participant moves for a rehearing in the planning board without taking any other action. As noted above, this is what happened in the Route 12 Books & Video v. Town of Troy case. It may be that the participant simply does not understand how a planning board matter is appealed to the superior court or the zoning board of adjustment. The participant might also erroneously believe that simply filing a request for rehearing stays the running of the appeal period. The participant may legitimately desire to avoid litigation, and seek a new opportunity to persuade the planning board. In all of these situations, the participant runs the risk of losing all of their appeal rights. The planning board will be most fair to the participant by promptly considering the request, and if the board determines not to rehear the matter, advise the applicant of how their appeal rights may be exercised.

4. The decision is a “final decision," and the participant appeals to the zoning board of adjustment on issues arising under the zoning ordinance, and to the superior court on issues that are “planning issues." While these appeals are pending, the participant moves for a rehearing in the planning board. In this situation, the participant’s appeal rights have been exercised, and litigation has been commenced. Under these facts, we would suggest that town counsel be involved in the decision whether or not to grant a rehearing. In a case where an error has been made, a rehearing may facilitate settlement of the litigation and create a better resolution of the underlying zoning or planning issue. On the other hand, a rehearing may interfere with the litigation, confuse the record or create other issues that will complicate the resolution of the appeals.