TITLE LXIV
PLANNING AND ZONING

Chapter 677
REHEARING AND APPEAL PROCEDURES

General Provisions

Section 677:1

    677:1 Procedure. – Whenever a person or a municipality seeks a rehearing on or an appeal of a zoning-related order or decision, the procedures enacted under this chapter shall be followed.

Source. 1983, 447:1, eff. Jan. 1, 1984.

Rehearing Procedures Before Board of Adjustment, Board of Appeals and Local Legislative Body

Section 677:2

    677:2 Motion for Rehearing of Board of Adjustment, Board of Appeals, and Local Legislative Body Decisions. – Within 30 days after any order or decision of the zoning board of adjustment, or any decision of the local legislative body or a board of appeals in regard to its zoning, the selectmen, any party to the action or proceedings, or any person directly affected thereby may apply for a rehearing in respect to any matter determined in the action or proceeding, or covered or included in the order, specifying in the motion for rehearing the ground therefor; and the board of adjustment, a board of appeals, or the local legislative body, may grant such rehearing if in its opinion good reason therefor is stated in the motion. This 30-day time period shall be counted in calendar days beginning with the date following the date upon which the board voted to approve or disapprove the application in accordance with RSA 21:35; provided however, that if the moving party shows that the minutes of the meeting at which such vote was taken, including the written decision, were not filed within 5 business days after the vote pursuant to RSA 676:3, II, the person applying for the rehearing shall have the right to amend the motion for rehearing, including the grounds therefor, within 30 days after the date on which the written decision was actually filed. If the decision complained against is that made by a town meeting, the application for rehearing shall be made to the board of selectmen, and, upon receipt of such application, the board of selectmen shall hold a rehearing within 30 days after receipt of the petition. Following the rehearing, if in the judgment of the selectmen the protest warrants action, the selectmen shall call a special town meeting.

Source. 1983, 447:1. 1988, 131:4. 1994, 116:1. 1995, 243:3. 2000, 144:2. 2005, 105:1. 2009, 266:2, eff. Sept. 14, 2009.

Section 677:3

    677:3 Rehearing by Board of Adjustment, Board of Appeals, or Local Legislative Body. –
I. A motion for rehearing made under RSA 677:2 shall set forth fully every ground upon which it is claimed that the decision or order complained of is unlawful or unreasonable. No appeal from any order or decision of the zoning board of adjustment, a board of appeals, or the local legislative body shall be taken unless the appellant shall have made application for rehearing as provided in RSA 677:2; and, when such application shall have been made, no ground not set forth in the application shall be urged, relied on, or given any consideration by a court unless the court for good cause shown shall allow the appellant to specify additional grounds.
II. Upon the filing of a motion for a rehearing, the board of adjustment, a board of appeals, or the local legislative body shall within 30 days either grant or deny the application, or suspend the order or decision complained of pending further consideration. Any order of suspension may be upon such terms and conditions as the board of adjustment, a board of appeals, or the local legislative body may prescribe. If the motion for rehearing is against a decision of the local legislative body and if the selectmen, as provided in RSA 677:2, shall have called a special town meeting within 25 days from the receipt of an application for a rehearing, the town shall grant or deny the same or suspend the order or decision complained of pending further consideration; and any order of suspension may be upon such terms and conditions as the town may prescribe.

Source. 1983, 447:1. 1988, 131:5. 1994, 116:2, eff. July 10, 1994.

Appeal and Court Review of Board of Adjustment and Local Legislative Body Decisions

Section 677:4

    677:4 Appeal From Decision on Motion for Rehearing. – Any person aggrieved by any order or decision of the zoning board of adjustment or any decision of the local legislative body may apply, by petition, to the superior court within 30 days after the date upon which the board voted to deny the motion for rehearing; provided however, that if the petitioner shows that the minutes of the meeting at which such vote was taken, including the written decision, were not filed within 5 business days after the vote pursuant to RSA 676:3, II, the petitioner shall have the right to amend the petition within 30 days after the date on which the written decision was actually filed. The petition shall set forth that such decision or order is illegal or unreasonable, in whole or in part, and shall specify the grounds upon which the decision or order is claimed to be illegal or unreasonable. For purposes of this section, "person aggrieved" includes any party entitled to request a rehearing under RSA 677:2.

Source. 1983, 447:1. 1994, 116:3. 1995, 243:4. 1996, 43:3. 2000, 144:3. 2009, 266:3, eff. Sept. 14, 2009.

Section 677:5

    677:5 Priority. – Any hearing by the superior court upon an appeal under RSA 677:4 shall be given priority on the court calendar.

Source. 1983, 447:1, eff. Jan. 1, 1984.

Section 677:6

    677:6 Burden of Proof. – In an appeal to the court, the burden of proof shall be upon the party seeking to set aside any order or decision of the zoning board of adjustment or any decision of the local legislative body to show that the order or decision is unlawful or unreasonable. All findings of the zoning board of adjustment or the local legislative body upon all questions of fact properly before the court shall be prima facie lawful and reasonable. The order or decision appealed from shall not be set aside or vacated, except for errors of law, unless the court is persuaded by the balance of probabilities, on the evidence before it, that said order or decision is unreasonable.

Source. 1983, 447:1, eff. Jan. 1, 1984.

Section 677:7

    677:7 Parties in Interest. – Any person whose rights may be directly affected by the outcome of the appeal may appear and become a party, or the court may order such persons to be joined as parties as justice may require.

Source. 1983, 447:1, eff. Jan. 1, 1984.

Section 677:8

    677:8 Filing Certified Record. – Upon the filing of an appeal, the clerk of court shall issue a summons requiring a certified copy of the record appealed from to be filed with the court.

Source. 1983, 447:1. 2014, 204:45, eff. July 11, 2014.

Section 677:9

    677:9 Restraining Order. – The filing of an appeal shall not stay any enforcement proceedings upon the decision appealed from, and shall not have the effect of suspending the decision of the zoning board of adjustment or local legislative body. However, the court, on application and notice, for good cause shown, may grant a restraining order.

Source. 1983, 447:1. 1995, 243:5, eff. Jan. 1, 1996.

Section 677:10

    677:10 Evidence; How Considered. – All evidence transferred by the zoning board of adjustment or the local legislative body shall be, and all additional evidence received may be, considered by the court regardless of any technical rule which might have rendered the evidence inadmissible if originally offered in the trial of an action at law.

Source. 1983, 447:1, eff. Jan. 1, 1984.

Section 677:11

    677:11 Judgment. – The final judgment upon every appeal shall be a decree dismissing the appeal, or vacating the order or decision complained of in whole or in part, as the case may be; but, in case such order or decision is wholly or partly vacated, the court may also, in its discretion, remand the matter to the zoning board of adjustment or local legislative body for such further proceedings, not inconsistent with the decree, as justice may require.

Source. 1983, 447:1, eff. Jan. 1, 1984.

Section 677:12

    677:12 Appeals to Court: Certifying Record. – An order of court to send up the record may be complied with by filing either the original papers or duly certified copies thereof, or of such portions thereof as the order may specify, together with a certified statement of such other facts as show the grounds of the action appealed from.

Source. 1983, 447:1, eff. Jan. 1, 1984.

Section 677:13

    677:13 Hearing. – The court may take evidence or appoint a referee to take such evidence as it may direct and report the same with the referee's findings of fact and conclusions of law.

Source. 1983, 447:1. 1995, 243:6, eff. Jan. 1, 1996.

Section 677:14

    677:14 Costs. – Costs shall not be allowed against the municipality unless it shall appear to the court that the zoning board of adjustment acted in bad faith or with malice or gross negligence in making the decision appealed from.

Source. 1983, 447:1, eff. Jan. 1, 1984.

Appeal and Court Review of Planning Board Decisions

Section 677:15

    677:15 Court Review. –
I. Any persons aggrieved by any decision of the planning board concerning a plat or subdivision may present to the superior court a petition, duly verified, setting forth that such decision is illegal or unreasonable in whole or in part and specifying the grounds upon which the same is claimed to be illegal or unreasonable. Such petition shall be presented to the court within 30 days after the date upon which the board voted to approve or disapprove the application; provided however, that if the petitioner shows that the minutes of the meeting at which such vote was taken, including the written decision, were not filed within 5 business days after the vote pursuant to RSA 676:3, II, the petitioner shall have the right to amend the petition within 30 days after the date on which the written decision was actually filed. This paragraph shall not apply to planning board decisions appealable to the board of adjustment pursuant to RSA 676:5, III. The 30-day time period shall be counted in calendar days beginning with the date following the date upon which the planning board voted to approve or disapprove the application, in accordance with RSA 21:35.
I-a. (a) If an aggrieved party desires to appeal a decision of the planning board, and if any of the matters to be appealed are appealable to the board of adjustment under RSA 676:5, III, such matters shall be appealed to the board of adjustment before any appeal is taken to the superior court under this section. If any party appeals any part of the planning board's decision to the superior court before all matters appealed to the board of adjustment have been resolved, the court shall stay the appeal until resolution of such matters. After the final resolution of all such matters appealed to the board of adjustment, any aggrieved party may appeal to the superior court, by petition, any or all matters concerning the subdivision or site plan decided by the planning board or the board of adjustment. The petition shall be presented to the superior court within 30 days after the board of adjustment's denial of a motion for rehearing under RSA 677:3, subject to the provisions of paragraph I.
(b) If, upon an appeal to the superior court under this section, the court determines, on its own motion within 30 days after delivery of proof of service of process upon the defendants, or on motion of any party made within the same period, that any matters contained in the appeal should have been appealed to the board of adjustment under RSA 676:5, III, the court shall issue an order to that effect, and shall stay proceedings on any remaining matters until final resolution of all matters before the board of adjustment. Upon such a determination by the superior court, the party who brought the appeal shall have 30 days to present such matters to the board of adjustment under RSA 676:5, III. Except as provided in this paragraph, no matter contained in the appeal shall be dismissed on the basis that it should have been appealed to the board of adjustment under RSA 676:5, III.
II. Upon presentation of such petition, the court may allow a certiorari order directed to the planning board to review such decision and shall prescribe therein the time within which return thereto shall be made and served upon the petitioner's attorney, which shall not be less than 10 days and may be extended by the court. The allowance of the order shall stay proceedings upon the decision appealed from. The planning board shall not be required to return the original papers acted upon by it; but it shall be sufficient to return certified or sworn copies thereof, or of such portions thereof as may be called for by such order. The return shall concisely set forth such other facts as may be pertinent and material to show the grounds of the decision appealed from and shall be verified.
III. If, upon the hearing, it shall appear to the court that testimony is necessary for the proper disposition of the matter, it may take evidence or appoint a referee to take such evidence as it may direct and report the same to the court with the referee's findings of fact and conclusion of law, which shall constitute a part of the proceedings upon which the determination of the court shall be made.
IV. The court shall give any hearing under this section priority on the court calendar.
V. The court may reverse or affirm, wholly or partly, or may modify the decision brought up for review when there is an error of law or when the court is persuaded by the balance of probabilities, on the evidence before it, that said decision is unreasonable. Costs shall not be allowed against the municipality unless it shall appear to the court that the planning board acted in bad faith or with malice in making the decision appealed from.

Source. 1983, 447:1. 1991, 231:14. 1995, 243:7, 8. 2000, 144:4. 2005, 105:2. 2009, 266:4. 2013, 179:1, eff. Aug. 31, 2013.

Appeal and Court Review of Building Code Board of Appeals Decisions

Section 677:16

    677:16 Court Review. – Any person aggrieved by a decision of the designated building code board of appeals may appeal the decision to the superior court for the county, and said court shall make such orders as justice may require.

Source. 1983, 447:1, eff. Jan. 1, 1984.

Rehearing and Appeal of Historic District Commission Decisions

Section 677:17

    677:17 Appeal When Zoning Ordinance Exists. – Any person or persons jointly or severally aggrieved by a decision of the historic district commission shall have the right to appeal that decision to the zoning board of adjustment in accordance with the provisions of RSA 676:5 and RSA 677:1-14.

Source. 1983, 447:1. 1987, 256:6, eff. July 17, 1987.

Section 677:18

    677:18 Appeal When no Zoning Ordinance Exists. – In municipalities which do not have a zoning board of adjustment, motions for rehearing and appeals from decisions of the historic district commission shall be governed by the applicable provisions of RSA 677:1-14.

Source. 1983, 447:1, eff. Jan. 1, 1984.

Invalid Ordinances

Section 677:19

    677:19 Subsequent Amendment. – Whenever an appeal to the superior court is initiated under this chapter and the court finds that the ordinance, or section thereof, upon which the board of adjustment, board of appeals, or local legislative body based its decision was invalid at the time such appeal was initiated, or that the application should have been approved but the ordinance was amended to prohibit the type of project applied for during the pendency of the appeal, notwithstanding the fact that the ordinance may have been amended to remove the invalidity subsequent to the initiation of the appeal or that the type of project applied for is no longer permitted, as the case may be, the court shall, upon request of the petitioner, issue an order approving the application, provided that the court finds the application complies with valid zoning and subdivision regulations existing at the time of the application.

Source. 1989, 381:2, eff. Aug. 4, 1989.