New Appellate Board in New Hampshire

By: Roy Tilsley and Brett Allard

In Brief

New Hampshire now has a new appellate board to hear certain appeals of local land use decisions, including those of planning and zoning boards. RSA 679, which establishes the “Housing Appeals Board”, become effective on July 1, 2020.

Below we have laid out some of the essential aspects of this new appeals process and what it means for housing advocates, developers, landowners, abutters and other interested parties in New Hampshire.

Jurisdiction and Scope of New Board

The new board will share concurrent jurisdiction with the Superior Court – the traditional forum for such appeals – meaning appellants will have the choice of appealing a local land use decision regarding questions of housing and housing development to either the Housing Appeals Board or the Superior Court. These appeals can be filed by unsuccessful applicants or other parties “aggrieved” by a municipal board decision – often abutters or nearby neighbors. As with the Superior Court track, further appeal can be taken from the Housing Appeals Board to the Supreme Court.

The Housing Appeals Board is modeled after the State’s Board of Tax and Land Appeals. The board has the authority to affirm, reverse, or modify, in whole or in part, appeals of final decisions of municipal boards, committees, and commissions regarding questions of housing and housing development. These decisions commonly include, but are not necessarily limited to, subdivision and site plan decisions of planning boards and variance and special exception decisions of zoning boards.

Board Purpose and Objectives of New Law

One purpose of the new board is to provide appellants with a more streamlined and less expensive alternative to the traditional Superior Court appeal track. While, in theory, such appeals are given a level of priority by the Court, they can nonetheless become bogged down in busy Court dockets, especially the criminal docket where a defendant has a constitutional right to a speedy trial. Those cases are still first in line.

Anecdotally, there is also a certain level of inconsistency among the Superior Courts in how they treat land use appeals, with some providing an expedited final hearing date on the case commencement summons, and others requiring one or more “pre-trial” hearings (or even alternative dispute resolution sessions, such as mediation) before scheduling a final hearing date. RSA 679, on the other hand, establishes uniform procedures and firm deadlines to expedite an appeal – the Board must hold a final hearing within 90 days of its receipt of the appeal and issue its decision within 60 days thereafter.

Another purpose of the board is to provide appellants with “judicial” review of their cases by professionals who are well versed in the real estate development field – an increasingly complex and technical one. Whereas Superior Court judges have various professional backgrounds which may or may not include land use experience, RSA 679 requires that the board be composed of three members who are experienced in questions of land use law. Specifically, one of them must be a licensed attorney with experience in land use and housing matters. Another member must be a licensed engineer or land surveyor.

Bottom Line

At this point, it is unclear when the Housing Appeals Board will begin hearing cases, although it is fair to assume that the time is coming sooner rather than later. Our experienced real estate and land use team is closely monitoring developments concerning this new appeals process. If you are considering appearing before a municipal land use board for permits or approvals, it is best to consult with a knowledgeable attorney before doing so – one who can also discuss with you how – and where – a potential appeal should be handled.

Learn more about our Real Estate Practice Group or contact us with questions.