A Primer on New Hampshire’s “Dual Track” Process for Appealing Planning Board Decisions

Appealing planning board decisions can be treacherous.  Some decisions must be appealed to the zoning board of adjustment (ZBA) while others go to the New Hampshire Housing Appeals Board (HAB) or superior court.  The rule may be summarized as follows: appeals of decisions involving an interpretation of a zoning ordinance go to the ZBA, while appeals of decisions not involving an interpretation of a zoning ordinance go to the HAB or superior court.

But what if the planning board renders a decision based in part on an interpretation of the zoning ordinance and in part on factors not involving an interpretation of the zoning ordinance?

The legislature addressed this conundrum a few years ago by creating the current "dual track" appeal process.  The New Hampshire Supreme Court clarified the process in Newfound Serenity LLC v. Town of Hebron (April 3, 2024), and the decision provides a handy primer for people navigating appeals of planning board decisions.  The Newfound Serenity decision also addressed a situation where the applicant appealed a planning board’s denial of its site plan to the HAB and the HAB dismissed the appeal before the ZBA resolved its interpretation of the zoning ordinance.   

Background

On April 6, 2022, the Hebron Planning Board denied the plaintiff’s site plan application for a seasonal recreational vehicle park based on seven reasons.  We can glean from the decision five of the reasons involved interpretations of the zoning ordinance and two did not.    

On May 9, 2022, the plaintiff filed an appeal of the planning board’s decision with the HAB.  Because the appeal was filed outside the statutory thirty-day appeal period, the HAB determined it lacked jurisdiction and dismissed the case on June 17, 2022.

The plaintiff also appealed the planning board’s decision to the town’s ZBA (this appeal presumably was filed timely).  On August 16, 2022, the ZBA overturned four of the planning board’s reasons for denying the site plan application, upheld one reason, and deemed it did not have statutory authority to address the other two reasons (presumably the two reasons not involving an interpretation of the zoning ordinance).  On October 11, 2022, the ZBA denied the plaintiff’s request for a rehearing.

On October 27, 2022, the plaintiff filed a complaint in superior court appealing the decisions of the planning board and the ZBA. The town moved to dismiss.  The town argued the plaintiff effectively bifurcated its initial appeal such that the ZBA would review the planning board’s reasons for denial related to the zoning ordinance and the HAB would review the reasons for denial falling outside the ZBA’s jurisdiction. The town asserted that because two of the planning board’s reasons for denying site plan approval were exclusively within the HAB’s statutory authority to review and because the HAB dismissed the plaintiff’s appeal as untimely, and the plaintiff did not appeal the dismissal to this court, the planning board’s decision as to those issues became final.  Even if the superior court were to reverse the ZBA’s decision, such a reversal would be moot because the planning board’s denial based on the two other reasons would remain effective.  The town also argued that because the plaintiff appealed the planning board decision in part to the HAB, the plaintiff waived its right to bring an action in superior court.

The trial court agreed with the town and granted the motion to dismiss.  The plaintiff moved for reconsideration, which the trial court denied. The plaintiff appealed to the supreme court.

Analysis

The Supreme Court began by reciting the appeal procedures where planning boards deny site plans based on reasons involving interpretations of the zoning ordinance and reasons not involving interpretations of the zoning ordinance.  In short, an appeal of the non-zoning ordinance reasons is stayed until completion of the ZBA’s decision on the interpretation of the zoning ordinance.  This process should sound familiar to people who practice in this area.  For anyone unfamiliar with this dual track process, the court’s opinion contains a concise summary.

The wrinkle in this case was the earlier appeal to the HAB.  As posed by the court: “what is the effect of the plaintiff’s initial appeal to the HAB?”

The HAB “appeal was filed more than thirty days after the planning board’s decision, and, consequently, the HAB dismissed it as untimely.  The trial court effectively gave the HAB’s decision preclusive effect as to both appeals from the planning board and the ZBA.”

The court concluded that the trial court’s decision was inconsistent with the statutory scheme.  “Read as a whole, the applicable statutes contemplate final resolution of zoning-related issues by the ZBA before an appeal of a planning board decision to superior court (or the HAB) becomes timely. The objective is plain: exhaustion of ZBA remedies avoids serial litigation and potentially inconsistent outcomes arising from a single site plan application.”

“Therefore, in light of this objective and under the plain language of the statutes, the plaintiff’s initial appeal to the HAB was not late; instead, it was premature.  Indeed, had the HAB accepted the initial appeal, it would have been required to stay the matter pending the ZBA appeal. See RSA 677:15, I- a(a).  We decline to conclude, under these facts, that the dismissal of a premature appeal by the HAB while the ZBA appeal was pending forecloses the plaintiff from pursuing its complaint in superior court.”

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