Appeals of Planning Board Decisions
The NH Office of Energy and Planning manual, the Planning Board in New Hampshire discusses appeals of Planning Board decisions. Appeals can be made to the courts and to the Board of Adjustment (ZBA) as discussed below.
SUBDIVISION AND SITE PLAN -
If a decision on an application is based upon a requirement of subdivision regulations; the appeal is made to Superior Court. (RSA 677:15)
ZONING INTERPRETATION -
If any portion of the decision is based upon the Planning Board's interpretation of the Zoning Ordinance, and the applicant wishes to challenge that decision, the appeal is to the Board of Adjustment (ZBA) as an administrative appeal. However, the scope of the ZBA is limited to reviewing that particular zoning interpretation (not interpretations of the subdivision regulations). (RSA 676:5, III)
Innovative Land Use Controls:
When a Planning Board decision is based upon the administration of an innovative land use control adopted pursuant to RSA 674:21, then appeal is to the Superior Court. (RSA 676:5, III)
Appeals to the Jackson Board of Adjustment (ZBA) - Appeals of Administrative Decisions may be made to the Jackson Board of Adjustment as provided in RSA 676:5. The Jackson Board of Adjustment By-Laws state that such appeals may be filed no later than 30 calendar days from the date following the date of the decision. The 30-day time limit applies only to those situations where anyone having a right to appeal, feels that a decision interpreting the Zoning Ordinance, made by the Board of Selectmen, Planning Board or other administrative officer is incorrect, and he wishes to appeal that administrative decision. While a variance may also be requested at the same time as an appeal, there is no time limit for applying for a variance. The Board, by a majority vote, may waive this period if the person appealing can demonstrate to the Board's satisfaction that he did not know, and could not reasonably have known, that the decision had been made. For more information on how to file an appeal with the Jackson Board of Adjustment see Appeals of Administrative Decisions on the ZBA page on this website.
The NH Supreme Court in Route 12 Books and Video v. Town of Troy states - This case makes it clear that appeals of planning board decisions relative to interpretation of a zoning ordinance must be appealed first to the ZBA to "exhaust the administrative remedy" before the superior court can acquire jurisdiction.
Appeals to the Court - RSA 677:15 requires appeals to the court to be filed within 30 calendar days of the Planning Board decision.
Appeals to both the Court and the ZBA at the same time - If a Planning Board decision involves both subdivision regulations and interpretation of the zoning ordinance, the challenge to the zoning interpretation goes to the ZBA. The challenge to all other parts of the decision must be appealed to the court.
Case law makes it clear that the party cannot wait until the ZBA acts before going to court on the non-zoning-ordinance issues. (Arranging Your Furniture, Operational Basics for Local Land Use Boards, 2005, H. Bernard Waugh, Esq.,Gardner, Fulton & Waugh, Lebanon, NH.)