The information contained in this article is not intended as legal advice and may no longer be accurate due to changes in the law. Consult NHMA's legal services or your municipal attorney.
Local government only works when people are willing to step up and serve their communities. Some citizens are not only willing to serve on one board, but on multiple boards at the same time. While this dedication to public service is laudable, there are some drawbacks to multiple board memberships that should be considered in advance. This article addresses some of the issues raised by multiple board memberships among land use boards and governing bodies.
When considering whether a current board member should be appointed to (or run for) another board, it is helpful to consider the capacity in which both boards act. If a board must notify abutters, hold hearings and hear and weigh evidence before rendering a decision (such as on a variance application), those decisions are characterized as judicial or quasi-judicial. In contrast, many of the other functions of a board are administrative (enforcing the zoning ordinance) or legislative (amending subdivision regulations). This is an important distinction because when a board is acting in a judicial or quasi-judicial manner, courts will apply a higher standard regarding potential conflicts of interest of the board members deciding the case. Winslow v. Holderness Planning Board, 125 N.H. 262 (1984).
To illustrate, suppose a select board member offers to serve on the zoning board of adjustment (ZBA). There is nothing in RSA 673:3, membership of the ZBA, or in RSA 669:7, incompatibility of offices, that would prevent a select board member from serving on the ZBA. However, the ZBA hears and decides appeals of administrative decisions, which can include decisions made by the select board in, among other situations, the issuance of notices of violation under the zoning ordinance and the decision to grant or deny a building permit. If the select board makes a decision that is later appealed to the ZBA, the ZBA member who is also on the select board will not be able to participate in that case. This is so because the ZBA is acting in a judicial capacity when it decides the appeal of the administrative decision. As such, any member of the ZBA who was part of making the select board decision that is now being reviewed by the ZBA would be disqualified for any cause to act as a juror upon the trial of the same matter. See RSA 673:14. Therefore, a select board member who is also a ZBA member would not be able to participate in such an appeal brought before the ZBA and would be required to recuse themselves.
Having a select board member recuse themselves every time such an appeal comes before the ZBA means that the ZBA chair will need to call upon alternates to fill in for the disqualified member. It is not uncommon for a land use board to have one or more empty alternate positions. In addition, advance notice of the need for an alternate is not always provided, and of course not all alternates will be available for any given meeting. Having a full board present is of particular importance to applicants before the ZBA because RSA 674:33, III requires concurring votes of three members to take any action. The frequent disqualification of one board member may mean applicants have a difficult time obtaining a hearing before a full board. The odds of this occurring are much greater when one member is likely to be disqualified from a large number of matters. It is generally recommended that, in fairness to applicants, when a ZBA cannot designate alternates in time to have a full board present, an applicant be given an opportunity to reschedule the hearing to a time when a full board can participate. Having to reschedule a large number of hearings, or proceed with less than a full board, will result in more work for the board and will make it more difficult for citizens to get timely and fair consideration of their application. The ZBA is also required to hold a hearing on all applications within 45 days after receipt of the application and to decide applications within 90 days after receipt, which might lead to additional pressure in this situation. RSA 676:7, II; RSA 674:33, VIII.
Another situation in which a conflict would arise is if the select board decided to request a rehearing or court appeal of a ZBA decision under RSA 677:2 and RSA 677:4. This would present a clear conflict of interest because the select board member would be deciding (as a member of the select board) whether to challenge or appeal their own decision (as a member of the ZBA). In that case, the person would be required to recuse themselves from the select board’s discussion and decision regarding whether to request a rehearing or pursue an appeal. This would leave the remaining two or four select board members to make that decision without them, creating the possibility of a tie vote. There are no alternates for select board members in this situation, of course.
Now let’s suppose that a ZBA member wishes to serve simultaneously on the planning board. No statute specifically prohibits one person from serving on both land use boards at the same time. However, several practical difficulties may arise. Most obviously, the ZBA is the body that hears appeals of planning board decisions involving the application or interpretation of any provision of the zoning ordinance. As discussed above, RSA 673:14 prohibits a member from participating in a case that he or she would be disqualified from sitting on as a juror if the same matter were in court. Furthermore, as of 2025, when a ZBA member also serves on a planning board, they are required by law to recuse themselves from voting on every matter previously decided by or pending before the planning board in a quasi-judicial capacity in which that member participated as a voting member. RSA 673:3, V. This means that an alternate would be required to sit in that person’s place for every appeal from a planning board decision in which that ZBA member had participated as a planning board member.
There is one situation in which a governing body member is actually required to be a member of a land use board at the same time. The law requires one select board member, or other administrative official chosen by the select board, to serve as an ex officio member of the planning board. RSA 673:2. “Ex officio member" means any member who holds office by virtue of an official position and who shall exercise all the powers of regular members of a local land use board. RSA 672:5. If a select board member wishes to serve as a regular member of the planning board (as opposed to an ex officio member) he or she may only serve if the ex officio member appointed by the select board is not another member of the select board. This is because RSA 673:7 prohibits two or more planning board members from serving together on the governing body (i.e., select board), conservation commission, or any other “local land use board” as defined in RSA 672:7 (ZBA, planning board, historic district commission, agriculture commission, housing commission, building code board of appeals, or any other board or commission established under RSA 673). Therefore, if the select board’s ex officio member to the planning board is a select board member, then no other select board member can serve on the planning board at the same time because that would mean two planning board members are serving together on the select board.
As with service on the ZBA, a select board member serving on the planning board might be disqualified from participating in certain matters that come before both boards. For instance, the select board has the ability to request a ZBA rehearing on an appeal of a planning board decision and to appeal that decision to court (RSA 676:5 and 677:2). A select board member who participated in the underlying planning board decision would be disqualified from participating in the select board’s subsequent pursuit of rehearing or appeal for the same reasons explained above.
Another potential problem with a select board member serving on land use boards will arise if the select board needs to consider removing a member of that land use board. The select board has authority to remove a member of a land use board for inefficiency, neglect of duty, or malfeasance in office. RSA 673:13. Any select board member who was serving on that particular land use board would arguably have a conflict even if the select board was discussing the removal of a different board member (and would, without question, have a disqualifying conflict if the member under discussion was that member themselves). That select board member would therefore probably not be able to participate in that decision, and there is no legal provision for alternate select board members in this situation.
Ultimately, while it is commendable that people are willing to put in the time and effort required to serve on multiple municipal boards, when land use boards are involved, it is important to consider the potential problems that this situation may present. When a board is acting in a judicial or quasi-judicial capacity, its members will be held to higher standards regarding conflicts of interest than if they were acting in an administrative or legislative capacity. Courts are likely to invalidate the judicial and quasi-judicial decisions made by a board when a member with a disqualifying conflict of interest participated. This results in wasted time, effort, and money for everyone. To avoid this, there is an increased need for alternates because disqualified members will be forced more often to step down from cases. In the interests of fairness to applicants and in the proper and smooth administration of local boards, careful consideration should be given before a person is appointed to, or runs for election to, multiple boards.