In a June 22, 2023, Order, the New Hampshire Supreme Court (the “Court”) expanded upon its prior case law regarding the determination of when an agency action constitutes a final administrative disposition. This ruling can be viewed as a cementing of the Court’s attitude on the subject and sends a message to all those wishing to challenge an administrative action – when in doubt, appeal.
The underlying case in controversy was appealed to the Supreme Court when the Rockingham Superior Court granted the Town of Auburn’s (the “Town”) motion to dismiss Plaintiffs Daniel and Marjorie Busa’s (“Plaintiffs”) petition for writ of mandamus on the grounds that the Plaintiffs had failed to exhaust their administrative remedies. The facts showed that in 2019 and 2021, the Plaintiffs applied to the Town’s Board of Selectmen (the “Board”) to unmerge their property lots. When assessing the Plaintiffs’ 2021 application, the Board found that its 2019 denial was a final one that could have, but was never appealed, and therefore, refused to take any action on the 2021 application. The Plaintiffs brought their petition for writ of mandamus shortly after.
When reviewing the arguments on appeal, the Court explained that when determining whether an agency action constitutes a final administrative disposition, the main factor to analyze is the practical impact of the action. Appeal of Countrywide Home Loans, 163 N.H. 139, 143 (2011). The Plaintiffs attempted to distinguish the facts in Appeal of Countrywide Home Loans from those in their case. Specifically, the Plaintiffs argued that Appeal of Countrywide Home Loans involved the review of an agency decision wherein the agency conducted an investigation and examination of the facts, as opposed to their situation, where no such review was conducted. The Court found this fact to be irrelevant to the determination of whether an agency’s action or inaction constitutes a final decision, finding that the Board’s 2019 statement that it “will not take any action on the current application” provided Plaintiffs with a final administrative disposition upon which to appeal to the Zoning Board of Adjustment (the “ZBA”), and the failure to do so effectively cut off the Plaintiffs’ ability to review the matter further.
The Court also provided that it was unpersuaded by the Plaintiffs’ argument that it would have been “futile” to appeal to the ZBA. RSA 676:5 (2016) provides that an appeal of a board decision shall be taken within a reasonable time, as provided by the rules of the board. The Court affirmed previously held case law that a writ of mandamus will not be issued “where the remedy by appeal or error to another administrative board or tribunal has not been exhausted.” Bosonetto v. Town of Richmond, 163 N.H. 736, 746 (2012).
The Court affirmed the Superior Court’s order granting the Town’s motion to dismiss Plaintiffs’ petition for review.
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