Preparing a Certified Land Use Record
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.
When a local land use proceeding ends in a written notice of decision, a party who disagrees with the result may appeal the matter to the Superior Court in accordance with RSA 677. The appeal is available from the decision of any “land use board”, which is defined in RSA 673:1 as the planning board, the zoning board of adjustment (which may also serve as the building code board of appeals), and the heritage commission, historic district commission, agricultural commission, and housing commission if these have been established by the local legislative body. Note that the conservation commission is not a “land use board” for this purpose, although they are often concerned with land use issues.
Q: What types of land use board decisions are appealable to Superior Court?
A: RSA 677:1 only permits appeals to the Superior Court from a “zoning related order or decision” of a land use board. Thus, if the planning board works on a master plan, or proposes ordinance changes to the legislative body, or works on a capital improvement plan, no appeal is available from those decisions. The requirements to initiate an appeal differ with the land use board. No appeal is available from the zoning board of adjustment until a motion for rehearing meeting the requirements of RSA 677:2 has been filed with the board and denied during a public meeting and deliberation. There is no such requirement when the appeal is from a decision of the planning board in accordance with RSA 677:15. Decisions of the historic district commission are heard first in the local zoning board of adjustment in accordance with RSA 677:17 if a zoning ordinance exists.
Q: What happens when an appeal is filed in Superior Court?
A: When an appeal is filed in Superior Court, it starts a civil lawsuit in which the municipality is the defendant. The municipality will usually seek assistance from its attorney to manage the lawsuit. The decisions on legal strategy, whether to proceed to a hearing, or to resolve the litigation by agreement are made by the governing body, and not the land use board. It is even possible that it will be the governing body that takes the land use board to the Superior Court, if it strongly disagrees with the decision reached. See, for example, Town of Bartlett Board of Selectmen v. Town of Bartlett Zoning Board of Adjustment, 164 N.H. 757 (2013). Land use appeals are time consuming, expensive, and may well result in a need for the land use board to hear the case a second time if the Superior Court determines that legal errors resulted in an unfair or unreasonable decision. The best way to avoid these negative impacts is for the land use board to carefully create its record of how the case was handled and decided. That is, the land use record begins on the day the first contact is made with staff, and continues until the final written notice of decision is rendered and any required motions for rehearing are decided.
Q: Are there any guidelines on what should be in a land use record?
A: There is no statute that clearly lists what should be in a land use record. Instead, we learn from RSA 677:8 that once the lawsuit starts, the court clerk will issue an order of notice requiring a certified copy of the record appealed from with the court. RSA 677:12 tells us that the record should be “certified”, and may consist of either “...the original papers or duly certified copies thereof, or of such portions thereof as the order may specify, together with a certified statement of such other facts as show the grounds of the action appealed from.” We need to refer to the legal standards a court uses to decide a land use appeal to understand what this statute means.
The Superior Court is not hearing the case again from the beginning. Instead, it is reviewing the decision of the land use board to see if errors were made. The standard of review of a zoning board of adjustment decision pursuant to RSA 677:6 or a planning board decision pursuant to RSA 677:15 is the same. See Bayson Properties v. City of Lebanon, 150 N.H. 167 (2003). That is, the party seeking to set aside the decision of the land use board must show that the decision was unlawful or unreasonable. The factual findings of the land use board are presumed to be lawful and reasonable. The land use board decision may not be set aside unless there has been an error of law, or the court is persuaded that the decision is unreasonable.
Q: What are “errors of law”?
A: “Errors of law” could be either mistakes in procedure, or mistakes in applying the legal standards imposed by either statute or decisions of the New Hampshire Supreme Court. Procedural requirements are imposed by various sections of RSA 676, and vary by which land use board is involved. What they have in common is the duty to provide “procedural due process” in the board’s adjudicative work. Essentially this means providing effective notice to the public and all interested parties in accordance with RSA 676:7, I (a) or RSA 676:4, I(d), providing an opportunity to be heard in accordance with RSA 676:7, I and III or RSA 676:4, I(e), producing a decision by an impartial tribunal in accordance with RSA 673:14, a deliberation based upon evidence and facts in accordance with RSA 674:4, I or RSA 674:33 and RSA 91-A, and a written decision with reasons as required by RSA 676:3. The legal standards depend on the jurisdiction of the land use board and the relief requested. Most zoning board of adjustment decisions are governed by RSA 674:33, while planning board decisions arise from the type of relief requested, whether subdivision of land, site review of commercial or non-residential uses, or innovative zoning techniques. These standards are found throughout the enabling statutes in RSA 674 and Supreme Court decisions that interpret those statutes and local regulations adopted in accordance with those statutes.
With these standards in mind, the contents of an effective and complete record become apparent.
1. How did the matter begin? Was it a decision of the local building inspector or code official, or was it a request to meet with the planning board for a preliminary consultation, design review, or a formal application? The papers will be the formal applications created by the municipality, and accompanying correspondence and plan sets.
2. How was notice given? This includes information from the local newspaper about publication, copies of the notices sent by certified mail, and the “green cards” from the post office showing dates of receipt of notice.
3. Opportunity to be heard. The written reports of experts and reviewers, whether from the standpoint of the municipality, the applicant, or abutters. All versions of plans as filed are part of this record. If the applicant requested any waivers, the record should show a written request and a written decision on each request. If any party filed any memoranda making legal arguments to the board, these documents are included. Finally, the minutes of the meetings where this evidence was received, considered, and questioned by the board detail when the information was provided, and how the board considered the meaning of the information in its review of the matter.
4. The written decision that is required by RSA 676:3. This includes not only the final written determination, but also the decisions made by the board as to the facts that it found persuasive and the reasoning behind the final decision. This is the opportunity to detail how the board reached its decision, which facts it found to be important, and why the board is acting to approve a request, approve a request with conditions attached, or deny the request.
If this information is left out of the record, there is no guarantee that the attorney for the town will be allowed to enter it later at the Superior Court hearing. This is especially true of video evidence; see for example Motorsports Holdings v. Town of Tamworth, 160 N.H. 95 (2010). If the record is incomplete or unclear, the case may be remanded for the purpose of clarification. See Kalil v. Town of Dummer ZBA, 155 N.H. 307 (2007). This case also stands for the idea that a remand for clarification is not an opportunity for any party to enter new evidence, or to set forth information it could have entered at the land use hearing, but chose not to enter.
Q: Who at the municipal level is responsible for creating a record?
A: A land use board relies heavily upon its staff and upon the municipal attorney to create a record that has the best chance of surviving this type of review by the Superior Court. When the record is compiled, it is “certified” by a member of the board. The cost of creating the record is borne by the municipality, and not the person who filed the appeal. Once created, multiple copies are needed for the court, the municipal attorney, and the interested parties. Once created, it is subject to disclosure under the Right to Know Law, which may result in the creation of additional copies. The goal is to conduct a proceeding that will convince a Superior Court judge that the board followed the law and entered a decision based upon facts that was reasonable in the circumstances.
Q: Do you have any pointers to make the process of creating a certified record easier?
A: Yes, here are some pointers for consideration:
A. Adopt procedures that recognize the record as something that begins on the date of first contact with an applicant. It should be updated promptly after every interaction, document filing, or proceeding before the board.
B. Once minutes have been prepared of a board meeting, promptly file a copy of those minutes in each file impacted. If this is done, it will save hours of time in the future poring over all of the minutes from that time frame that might have mentioned the case. Since some matters take years to resolve, this will both save time and improve the accuracy of the record.
C. As the case proceeds, assure the persons who examine the record are supervised, and that all materials are returned to the file from the copying process in a complete and orderly fashion. If documents or plans “disappear,” or simply can’t be found, it could have a profound impact upon the appeal.
D. Consider how electronic records are to be preserved and included in the file. Would it be better and easier to have all relevant emails printed and included in the file, or will they be kept only in electronic format? Would the answer be the same or different for electronic submissions from the applicant, the experts, or the abutters? How will you plan to keep them available in light of possible changes in software, or hardware used in the office?
With this in mind, a good record will prevent the need to hear a case over again. It is certainly true that if the case was difficult the first time, it will be more difficult to hear and manage the matter a second time. Our volunteer land use boards work hard to make good and lawful decisions. That work must be carefully documented in the record in order to preserve that work and avoid the negative impacts of a reversal or remand following review in the Superior Court.
Paul Sanderson is Staff Attorney for the New Hampshire Municipal Association. He may be contacted at 800.852.3358 ext. 3408 or at legalinquires@nhmunicipal.org.