New Hampshire Supreme Court Finds Plaintiffs Timely Perfected Appeal Despite Zoning Board Delay in Issuing Written Decision
The Supreme Court of New Hampshire (the “Supreme Court”) recently addressed a unique case where the Town of Sunapee’s zoning board failed to issue a written decision denying a variance request until after it had already held and ruled on a motion for rehearing of that decision. The Town then argued the Superior Court lacked jurisdiction to hear the plaintiffs’ appeal because the rehearing had included new issues not raised in the initial hearing. However, the Supreme Court disagreed, concluding the plaintiffs had timely perfected their appeal.
In Weiss v. Town of Sunapee, No. 2022-0309 (N.H. Aug. 23, 2023), the Supreme Court reversed and remanded the order of the Superior Court that had dismissed an appeal by Bradley Weiss and Cathleen Shea (the “Plaintiffs”) for lack of jurisdiction on the basis that they should have requested a second rehearing from the Town of Sunapee’s Zoning Board of Adjustment (“ZBA”) on their request for a variance.
The matter had begun with the Plaintiffs seeking a variance for a setback on their property. The ZBA held a hearing on April 1, 2021, and by a vote of 3-2, the ZBA denied the variance, citing insufficient evidence of unnecessary hardship, concluding the variance would not be consistent with the spirit of the ordinance, and expressing concern about health and safety issues. Although the ZBA approved the minutes of that hearing on May 25, 2021, it failed to provide a written decision until August 3, 2021. While the opinion does not address reasons for the delay, it does note that the April 2021 hearing was held remotely due to the Covid-19 pandemic.
Despite the delay in the written decision, the Plaintiffs timely filed a motion for rehearing on April 27, 2021. The ZBA held the rehearing on June 17, 2021, and voted again to deny the variance. As before, the ZBA found the variance would not be consistent with the spirit of the ordinance and that there was insufficient evidence of unnecessary hardship, as well as a lack of proof the variance was not contrary to the public interest. The ZBA issued a written decision for the June 17, 2021 hearing on June 25, 2021.
The Plaintiffs then appealed to the Superior Court, setting forth the grounds the ZBA had cited at the April hearing and contending the ZBA reiterated the same grounds at the June rehearing. To the extent the ZBA argued new issues arose at the June rehearing, the Plaintiffs sought to have such issues consolidated in the appeal.
The Town of Sunapee sought dismissal of the appeal, arguing new issues were raised at the rehearing, thus requiring a second motion for rehearing before the Superior Court could exercise jurisdiction over the Plaintiffs’ appeal. The Superior Court agreed with the Town, and later denied the Plaintiffs’ motion reconsideration.
On appeal, the Supreme Court reversed and remanded. The Supreme Court looked to RSA 677:3, which provides that an appeal from a zoning board decision requires an application for rehearing and prohibits the applicant from relying on a ground not set forth in that application except for good cause shown. The Supreme Court noted the Plaintiffs had to move for rehearing within 30 days of the ZBA decision.
Pursuant to the statute, the Supreme Court held that the Plaintiffs had timely sought rehearing based on two grounds set forth in the ZBA’s April decision (insufficient evidence of unnecessary hardship and the variance was not in keeping with the spirit of the ordinance) and the Superior Court was limited in reviewing those issues unless the Plaintiffs showed good cause for additional grounds.
The Plaintiffs argued they had shown good cause because the ZBA failed to timely provide a written decision after the April 1, 2021 hearing, and they had to rely on their notes and memory. Additionally, they argued the trial court dismissed their appeal for lack of subject matter jurisdiction without considering whether the Plaintiffs had shown good cause to cite additional grounds.
The Supreme Court held that the Plaintiffs perfected their appeal because, pursuant to RSA 677:3, they had timely moved for rehearing after the April ZBA decision. Hence, the Supreme Court reversed the Superior Court’s ruling that it lacked jurisdiction over the appeal and remanded for further proceedings.
Justice Marconi concurred with the majority holding that the Plaintiffs had timely appealed and, thus, the Superior Court had jurisdiction. However, he dissented from the majority, noting that he would have found good cause as a matter of law due to the ZBA’s failure to issue a timely written decision.
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