In Accurate Transport, Inc. v. Town of Derry, 2014-512 (decision issued August 11, 2015), the New Hampshire Supreme Court reversed a decision of the trial court concerning the timeliness of a motion for rehearing to the ZBA about a proposed Dumpster Depot operation. The Court made several key rulings of interest to land use practitioners:
- An opinion by a reviewing code enforcement officer that the use of a property is permitted is not an appealable "decision" to the ZBA. It is ultimately up to the Planning Board, in considering the merits of the site plan, to decide whether the proposed use is permissible.
- While there is no statutory provision that expressly allows a ZBA to "convert" an appeal containing both untimely and timely elements for the purpose of removing the untimely arguments, there is no statute that prohibits the Board from doing so.
- Accepting jurisdiction over a site plan is only a procedural prerequisite to the Planning Board's consideration of the merits of the plan. (In other words, a Planning Board cannot consider whether to approve an application before it accepts the application as complete.)
- The period for appealing a zoning-related decision of a Planning Board begins to run on the date of conditional approval.
TAKE-AWAY POINT:
The Court has provided guidance that Municipalities should look carefully at a request for rehearing to see exactly what decisions are being challenged and not just rely on the stated purpose and caption of the request. When an untimely request for rehearing also discusses the merits of a later decision that can still be reheard, a ZBA to may "convert" the request to address the timely concerns raised.
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