Posted by: Patricia Salkin | June 5, 2019

NH Supreme Court Finds Planning Board Decision Regarding a Zoning Ordinance is Ripe and Appealable to the ZBA When Such a Decision is Made Regarding Site Plan Approval

This post was authored by Matthew Loeser, Esq.

Petitioners, Koleen Crawford and Ryan Crawford appealed from an order of the Superior Court that dismissed their challenge to a decision of the zoning board of adjustment for the Town of Gilford. This ZBA decision upheld certain conditions on a site plan requested by the intervenors, Martina Howe and Andrew Howe.

On appeal, the abutters claimed that the trial court erred by concluding that the most recent appealable decision regarding whether the Howe’s proposed use was permitted by the town’s zoning ordinance was made by the town’s planning board on February 8, 2016. Specifically, the abutters argued that, since the planning board’s February 8, 2016 approval of the Howe’s site plan was conditional, and the conditions were not satisfied, the approval was not appealable at that time. The court rejected this contention, finding a planning board decision about a zoning ordinance is ripe and appealable to the ZBA when such a decision is made, even in situations when conditions precedent, which did not implicate any issue appealable to the ZBA, were imposed upon final site plan approval.

The abutters next contended that the superior court’s February 14, 2017 order, ruling that the Howe’s use was not permitted, “nullified” the planning board’s February 8, 2016 decision conditionally approving the site plan. This claim was likewise rejected by the court, which noted that while in appropriate cases a trial court could order that a final decision remain in effect during the pendency of an appeal, the general rule was that timely appealing a trial court’s final order stays it from taking effect. As such, contrary to the abutters’ contention, when the Howe’s returned to the planning board for approval of the final mediation agreement’s additional conditions, the superior court’s February 14, 2017 order was not “the controlling law” and the Howe’s did not make “a reapplication for site plan approval.”

Finally, to the extent that the abutters argued the planning board’s October 16, 2017 decision was an appealable use decision, they also acknowledged that at that hearing the planning board did not specifically discuss or vote upon whether the use was permitted. As a result, the court concluded that the trial court’s decision that it lacked subject matter jurisdiction given the untimeliness of the appeal was supported by the record and not legally erroneous. Accordingly, the decision of the trial court was affirmed.

Koleen Crawford & a. v. Town of Gilford, 2019 WL 2371966 (NH 5/31/2019)

 


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