Agenda - Planning Commission - 07/07/2005

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Page 8--June25,2005 Appeal-- Board adds new reason for variance denial on motion for rehearing Variance applicant claims this is an unfair practice Citation: McDonald v. Town of Effingham Zoning Board of Adjustment, Supreme Court of New Hampshire, No. 2004-453 (2005) NEW HAMPSHIRE (05/06/05) -- McDonald owned one-quarter of an acre in the town of Effingham. The town's zoning ordinance required a minimum lot size of two acres and specific frontage and setback requirements that would limit any structure on lVlcDonald's lot to eight feet in depth and 40 feet in width. McDonald sought an area variance. The zoning board of appeals denied her application. McDonald filed a motion for rehearing, which the board denied. It found there was no new evidence presented requiring any change in its earlier decision, and also concluded McDoriald failed to file certain required forms regarding a proposed septic system. McDonald sued, and the court ruled in favor of the board. McDonald appealed, arguing the board could not consider a new issue in response to her motion for a reheating. " DECISION: Reversed. '" The board could not role on a new issue in its denial of a'motion for rehearing. The vote to deny the motion for rehearing, though based in part on an additional new ground, triggered the 30-day appeal period under local law. Because, by law, the aggrieved party was required to pursue a motion for rehearing on any issue it later sought to appeal, and the appeal period ran from the date the board voted to deny a motion for rehearing, the statutory scheme did not anticipate that a zoning board would render new findings or rulings in the denial of a rehearing motion. Accordingly,-when a zoning board denied a motion for'rehearing, the ag- grieved party did not need to file a second motiOn for rehearing to preserve.for appeal any new issues,' findings, or rulings first raised by the board in that denial order. When addressing such an appeal, the superior court could, at its discretion, stay the matter and send it back to the board for further hearings to resolve the appeal. A better practice for the board to take when it identified new pounds for its initial decision and intended to make new findings and rulings on them in response to a motion for rehearing would be for it to grant the rehearing motion without adding new pounds for denying the variance, application. After the rehearing and new order, the aggrieved party would then need to file a motion for rehearing on all issues ruled upon, at tt~at time, to preserve them for appel- late review. see also: ?elletier v. City of Manchester, 844 A.2d 484 (2004). see also: Hooksert Conservation Commission v. Hooksett Zoning Board of Adj,~szment, 816 A.2d 948 (2003)i 108 © 2005 Quinlan Publisnir~g Group. Any reproduction is prohibited. For more information please call (617) 542-0048.