This case involves the concept of “standing” to bring a lawsuit. Generally speaking, to be able to challenge a law or to challenge an action taken by another person or by the government, a person must have a sufficient stake in the outcome of the matter. The specific test used to determine whether someone has standing may differ somewhat depending upon the law or action being challenged.
This is the second case in two years involving standing to challenge a decision of the New Hampshire Department of Education (DOE) to waive the minimum lot size requirement for a new school building in Concord. In Baer v. N.H. Dep’t of Educ., 160 N.H. 727 (2010) (summarized in New Hampshire Town and City, Nov./Dec. 2010, p. 38), the Supreme Court held that the plaintiffs had no legal standing merely as taxpayers to challenge such a decision. In this case, the plaintiffs’ land abutted a lot owned by the Concord School District, which was the subject of the waiver granted by DOE. The plaintiffs filed a petition in the superior court seeking a determination that the waiver was invalid, alleging that DOE had not followed its own rules when it failed to consider the potential impact of the waiver on the plaintiffs’ property. The plaintiffs’ petition was based on two statutes: RSA 491:22 (seeking a “declaratory judgment” that the DOE had acted improperly); and RSA 541-A:24 (challenging the validity or applicability of an administrative rule).
The Court held that the plaintiffs, although abutters, have no standing. As the Court noted, “a party does not obtain standing under RSA 491:22 merely by demonstrating that he has suffered an injury.” Instead, that party must show that “some right of his is impaired or prejudiced” by the action complained of. “Simply stated, a party has standing to bring a declaratory judgment action where the party alleges an impairment of a present legal or equitable right arising out of the application of the rule or statute under which the action has occurred.” The action may not be based on a hypothetical set of facts (here, the plaintiffs’ property might lose value), and it cannot be a request for advice as to future cases.
What is important for municipal officials to know about this case is that taxpayers and even abutters do not necessarily have standing to challenge any given governmental decision. It matters under which law the challenge is being raised. For instance, standing to challenge a planning board decision to the zoning board of adjustment is based on the language in RSA 676:5, I (allowing “any person aggrieved” to bring an appeal). It is also important to remember that “standing” may be raised at any time in a lawsuit or administrative appeal. Consult the statute governing the issue at hand to determine who has standing in that specific case.