(Plan-link posting 9/22/07)
To expand upon David Lefevre’s post yesterday about the NH Supreme Court’s decision in 74 Cox Street LLC v. Nashua  , here are some details and some thoughts about its implications.
The Nashua ZBA granted variances, and intervenors filed a request for rehearing. The ZBA “denied” the rehearing motion (no second was made to a motion to grant the rehearing, “and, consequently, the ZBA denied the intervenors’ request.”) The intervenors subsequently wrote to the ZBA, contending that information they had submitted with their request had not been properly transmitted to the board, and they asked the ZBA to reconsider its denial of the motion for rehearing. The ZBA agreed to reconsider its rehearing motion denial, and ultimately did agree to rehear the matter. Meantime, the petitioners (the party who had been granted the variances) brought an action in superior court contending that the ZBA did not have the power to reconsider a decision to deny a motion for rehearing (they had gotten their variances, after all, and didn’t want to see them slip away). The Superior Court dismissed the action, and an appeal was made to the Superior Court, again by the petitioners who had gotten the variances.
Dates are important in this case. Without reciting them, note that the ZBA ultimately decided to grant the motion for rehearing within 30 days of the original denial of the motion. This is the statutory appeal during which appeals can be made to decisions of the ZBA under RSA 677:4.
The Supreme Court discussed at some length the authority of a court to grant a writ of certiorari, but that is largely immaterial to the essential matter of the appeal (but nonetheless is interesting to those of us who enjoy the stuff). What is truly important is that the Court clearly concluded that “a ZBA has the inherent authority to reconsider a decision to deny a request for rehearing, upon its own motion or at the request of a party to the proceeding, within the thirty-day appeal period established by RSA 677:4.” Although there is nothing in statute that says the ZBA has such authority, the Court’s reasoning is one of common sense: during the statutory period when the ZBA’s decision can be appealed, if the board finds that it made a mistake let it take corrective action. Justice will be served better and more quickly, the resources of the courts won’t be wasted, and final decisions will be better reasoned.
That’s the decision. The implications are important, and extend beyond zoning boards of adjustment. In its discussion of the matter, the Court said “…we believe that municipal boards, like courts, have the power to reverse themselves at any time prior to final decision if the interests of justice so require. We hold that belief because the statutory scheme established in RSA chapter 677 is based upon the principle that a local board should have the first opportunity to pass upon any alleged errors in its own decisions so that the court may have the benefit of the board’s judgment in hearing the appeal.” (citation omitted).
This reasoning applies to any local land use board, not just ZBAs. I have long argued that planning boards (and now also ZBAs) should have the ability to “reconsider” their own decisions, and that their bylaws should contain a provision for doing just that. The only caveat is that such reconsideration must occur during the relevant statutory appeal period. This would also apply, in my opinion, to local board decisions that are subject to appeal to the ZBA itself. So if the planning board makes a decision that involves an interpretation of the zoning ordinance, that aspect of its decision may be appealed to the ZBA. But during the period allowing for that appeal (defined in the ZBA’s bylaws per RSA 676:5,I), the planning board should be able to reconsider its decision—if justice would require, of course!
Benjamin D. Frost, AICP
Housing Awareness Coordinator
New Hampshire Housing
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