"Board’s Process Important When Rendering Adjudicative Decisions", Paul Sanderson, Esq., New Hampshire Town and City, July/August 2005
When a case is litigated in a court of law, the judge must receive information into evidence, evaluate the importance and credibility of the information, apply principles of law to the evidence and render a written decision that binds the parties to a result.
Local land use boards use the same procedures and skills to make decisions on land use applications. Local governing bodies may adjudicate local welfare applications, or applications for various types of local licenses and permits. Each of these decisions involves a property right or an economic interest that is important to the applicant. Although most local officials do not have legal training in the process of making these decisions, if their actions are later reviewed in court, they will be held to the same standards of law that would have applied if the ease had been decided by a judge in the first instance. Just as a judge in a complex case may need the assistance of experts to provide evidence in a specialized area such as medicine, a local land use board or governing body may need expert assistance in the process of decision making.
We can use a set of hypothetical facts to illustrate some situations where such assistance may be helpful to properly adjudicate the case. Let us suppose that a zoning board of adjustment receives an application for a variance from a property owner. This same person was denied a variance several years ago to change the use of property, but has now submitted a new request for relief based upon a change in the law.
A board should probably seek assistance for the hearing when the statute or case law applicable to the request is not clear or well settled. In this hypothetical, the case law that applies is not well settled. Ordinarily, the decisions of a zoning board of adjustment that are no longer subject to appeal in a court are entitled to be relied upon as final. Following a denial, applicants are not permitted to refile a request for the same relief upon the same property over and over until the board finally grants them the relief they seek. If that were not the rule, zoning ordinances would quickly lose their integrity, and landowners would not be able to rely upon the ordinance as an expression of permitted uses in the municipality. This is the holding of the Supreme Court in Fisher v. Dover, 120 NH 187 (1980). In that case, the Court also recognized that an applicant might change the request for relief, or that other factors affecting the property might change, and stated, "When a material change in circumstances affecting the merits of the application has not occurred or the application is not for a use that materially differs in nature and degree from its predecessor, the board of adjustment may not lawfully reach the merits of the petition."
Exactly what does the word "circumstances" mean in 2005 as we apply the language of this case from 1980? Does it mean just the physical circumstances affecting the land, or also include the legal circumstances affecting the land? We know from a later case, Morgenstern v. Rye, 147 NH 558 (2002), that changes in proposed physical improvements such as house size or driveway configuration are changes in circumstance that require a ZBA to hear a revised application.
We have no decision from the New Hampshire Supreme Court to tell us whether a change in the underlying law is a "change in circumstance." Municipal attorneys expect this type of case to be taken to the New Hampshire Supreme Court in the near future as zoning boards of adjustment implement the changes in the law of variances announced by the Court in Boccia v. City of Portsmouth, 151 NH 85 (2004).
A board should probably seek assistance for the hearing when a decision on an issue of law is necessary to define the scope of the hearing. Another difficult aspect of this factual situation involves the legal concept of res judicata, literally meaning that the thing has already been decided. In order to prevent the waste of resources in the courts, and to implement a policy of finality in the legal system, the same parties are not allowed to bring precisely the same questions for decision to precisely the same court on multiple occasions. The principle is applicable to proceedings not decided in a court, such as administrative hearings before agencies. See Cook v. Sullivan,149 NH 774 (2003). While the principle is straightforward, courts are reluctant to use it to deny applicants access to an administrative process that clearly affects constitutionally protected property rights. They will only do so when it is clear that the applicant is seeking "multiple bites at the apple" which will result in a waste of governmental or judicial resources. See Blue Jay Realty Trust v. City of Franklin, 132 NH 502 (1989), and the Morgenstern case cited above, for examples of situations where the Supreme Court refused to allow the principle of res judicata to bar litigation of claims against municipalities.
A board should probably seek assistance for the hearing when the law requires an unusual procedure to be followed to adjudicate a case. In the Fisher case, the Supreme Court made clear that a zoning board of adjustment has to process a second application filed following a denial using a different procedure than would be followed in an ordinary request for relief. In this situation, several procedural requirements are different:
- The zoning board of adjustment has to make an initial inquiry about how circumstances have changed before it hears a presentation on the merits of the second request for relief. The question is not whether the applicant has provided evidence on the five elements of a variance. Instead, the question is what circumstances have changed between the first presentation and today. This is a factual inquiry and doesn’t involve applying the legal tests for a variance. The burden is on the applicant to show the ZBA that something has changed. Changes in the legal standards resulting from Supreme Court cases are an example, but others are possible. For example, the municipality may have changed provisions in its ordinance that affect performance standards, such as changing a setback distance. The municipality may have adopted or repealed or altered overlay districts that affect the property. The municipality may have changed the ordinance to allow an innovative Zoning concept such as cluster development in the zone, where it was formerly prohibited.
- During this factual inquiry, the burden is placed upon the applicant to show the zoning board of adjustment that some circumstance has changed from those presented to the board in the earlier case. This inquiry is not a public hearing on the new request for relief. The opinions of the abutters about what the applicant wants to do now are not relevant to this inquiry. The inquiry is only about whether something has changed sufficiently to allow the applicant to proceed to a hearing on the merits of the new request. Thus, the board would not be required to provide advance written notice to abutters or to follow ordinary procedures used in the adjudication of a new application. If the applicant fails to convince the zoning board of adjustment that things have changed, the applicant will not be allowed to present arguments to the board on the new request for relief.
The board certainly could hear the initial inquiry, make a decision on the issue and find the applicant is entitled to a hearing all in a single meeting. It could provide notice to the abutters and allow the applicant to proceed at the same meeting, but it is not required to do this. The board can determine how it wants to handle its own procedure, but the key point is that this initial inquiry is not a public hearing and the public is not entitled to advocate before the board on this issue. This legal point could well be confusing to the public, and so the board may desire to handle such an applicant in two separate meetings.
- If the board decides the applicant’s evidence about change is not sufficient to warrant another hearing, that decision will be a final decision on the case at the board’s level. The applicant must be notified in writing, and if the applicant wishes to continue the legal process, the applicant must request a rehearing before the board before proceeding to superior court. The zoning board of adjustment must handle the rehearing as in any other case. The board’s deliberation on a request for a rehearing is another example of a hearing that is not a public hearing, and in which the public does not have input. At this point, if there is new evidence the zoning board of adjustment could either affirm its earlier decision or decide the change is, in fact, sufficient to warrant proceeding to a hearing on the merits of the new request. At that point, notice should be provided to abutters, and the case will be processed on its own merits as any other application would be processed.
The process of protecting the procedural due process rights of applicants during adjudicative proceedings may not be simple and may not be straightforward. Sometimes the process is just as important as the underlying substance of the question. When those situations arise, assistance should be obtained from local counsel. This assistance will not only help to assure that decisions will be just and fair, it will help to assure that the board has built a record of decision that is complete and adequate for later court review of the matter. If counsel is called to assist early in the process, it is likely that errors of procedure will be avoided. If litigation cannot be avoided, the presence of local counsel will help to reduce the scope of disputed issues, and the municipality will have a person involved who has become familiar with all of the issues in the case, and who will be well prepared to defend the board’s decision in that litigation.
Paul Sanderson is a staff attorney with the Local Government Center’s Legal Services and Government Affairs Department.