New Hampshire Supreme Court Says that Untimely Orders May Open Towns to Court Appeals as “Good Cause” for Plaintiffs not Exhausting their Municipal Requests for Rehearing
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Bradley Weiss and Cathleen Shea sought a variance for an “east side setback” for a residential property in Sunapee, New Hampshire, in 2021. On April 1, 2021, Sunapee’s ZBA held a hearing to consider the application for a variance (due to protocols associated with the COVID-19 pandemic, the hearing was held remotely), but denied the motion by a vote of 3 to 2. Members voting no said the applicants showed insufficient evidence of hardship. The meeting minutes were approved at a subsequent meeting on May 25, 2021, but the written decision confirming the rejected application was not issued until August 3, 2021. RSA 676:3, II (2022) requires the written decision be “placed on file in the board’s office and shall be made available for public inspection within 5 business days of such vote.” Nevertheless, on April 27, 2021, plaintiffs moved for a rehearing. That rehearing occurred in June, when the board again denied the variance. Next, the plaintiffs appealed to Superior Court, foregoing a second motion for rehearing.
Ordinarily, an aggrieved party could be required to file a new motion for rehearing to address any new issues that are thrust upon the appealing party due to a ZBA’s rehearing decision; to hold otherwise would deny the board of adjustment an opportunity to correct its errors and would limit the court to consideration of the errors alleged in the original rehearing motion. Dziama v. City of Portsmouth, 140 N.H. 542, 545 (1995). In this matter, the plaintiffs argued that through the June rehearing decision the ZBA applied the same grounds as in the April hearing, negating the second rehearing requirement; the focus in both, they say, was on “hardship.” The Town argued the bases for denial included newly raised issues, and so moved to dismiss, arguing that the court did not have jurisdiction because the appeal-exhaustion requirement was not met.
RSA 677:3, I (2016) controls whether a second motion for rehearing is required of the plaintiffs. It reads in part:
No appeal from any order or decision of the zoning board of adjustment, a board of appeals, or the local legislative body shall be taken unless the appellant shall have made application for rehearing as provided in RSA 677:2…
The application for rehearing must meet the RSA 677:2 requirement of being made within 30 days. The Superior Court only has subject matter jurisdiction for appeals regarding the grounds set forth in the application for rehearing, but only those grounds (unless they show good cause for including additional grounds). Additionally, the ZBA must have the opportunity to consider specified grounds for appeal before a party can prosecute a Superior Court appeal; for the Superior Court to hear an appeal on an issue, that issue must be considered by the board, subject to a motion for rehearing, and either re-heard or dismissed by the board.
The Superior Court dismissed for lack of subject matter jurisdiction because the lack of a second rehearing motion meant the appeal-exhaustion requirement had not been met, but in doing so it did not consider the question of whether the plaintiffs could show good cause for not requesting a second rehearing. The plaintiffs argued that the good cause arose from the Town’s failure to make a timely written order of its decision, such that the two denials could be compared. Without the written decision, they argued, they could not have identified the additional grounds that may have arisen in the first rehearing.
The Supreme Court reversed the Superior Court’s ruling to dismiss for lack of subject matter jurisdiction and remanded it to the Superior Court to determine whether the plaintiffs showed good cause to be allowed to specify additional grounds for their appeal. Material to the Court’s decision in favor of the plaintiffs was the four-month delay in issuing its written decision.
Practice Pointer: Boards should heed the requirement in RSA 676:3, II that written decisions be posted within five business days of the meeting where the decision was made, or they may extend the petitioner’s window to motion for rehearing, opening further avenues for judicial appeals.