The NH Office of Energy and Planning publication The Board of Adjustment in New Hampshire gives detailed instructions on how ZBAs should handle requests for rehearings. Some of this information is printed below. A complete copy of this manual is available from the NH Office of Energy and Planning at www.nh.gov/oep/resourcelibrary/HandbooksAndOtherPublications.htm .
RSA 677:2 states that the Board of Selectmen, any party to the action, or any party affected has the right to request a rehearing to appeal a decision made by the Board of Adjustment. There are no special forms to request a rehearing. The request for a rehearing may be made by letter. The request must be made within 30 days of the decision, counted in calendar days beginning with the date following the date on which the board voted to approve or disapprove the application.
The motion for rehearing must describe why the original decision may be unlawful or unreasonable. The Board of Adjustment has 30 days from the filing of a request for a rehearing to either grant or deny such request. (RSA 677:3)
It is assumed that every case will be decided originally, only after careful consideration of all the evidence on hand and on the best possible judgment of the individual members. Therefore, no purpose is served by granting a rehearing unless the petitioner claims a technical error has been made to his detriment or he can produce new evidence that was not available to him at the time of the first hearing.
The evidence might reflect a change in conditions that took place since the first hearing or information that was unobtainable because of the absence of key people, or for other valid reasons. The Board, and those in opposition to the appeal, should not be penalized because the petitioner has not adequately prepared his original case and did not take the trouble to determine sufficient grounds and provide facts to support them.
The reasons for granting a rehearing should be compelling ones. A person has a right to apply for a rehearing, but the Board is not required to grant the rehearing and should use its judgment in deciding whether justice will be served by doing so. The board may grant a rehearing if, in its opinion, good reason is stated in the motion. The Board will not reopen a case based on the same set of facts unless it is convinced that an injustice would be created by not doing so.
However, a rehearing should be seriously considered if the moving party is persuasive that the Board has made a mistake. The NH court ruled "The rehearing process is designed to afford local zoning Boards of Adjustment an opportunity to correct their mistakes before appeals are filed with the courts (Bourassa v. Keene, 1967)
When a rehearing is held, all legal actions, such as public notice, required for the first hearing must be followed. If possible, the same Board members from the original hearing should be present at the rehearing.
The ZBA has a constitutional duty, not only to act in good faith, but to assist parties. (Carbonneau v. Rye, 1980) The process should not amount to a test of wills or a shell game, especially over questions of procedure. Take this point seriously, because it gets to the heart of the meaning of "government by the people". It is the function of towns "to provide assistance to their citizens, and that the measure of assistance certainly includes informing applicants not only whether their applications are substantively acceptable, but also whether they are technically in order". Richmond Comp. v. Concord, 2003 quoting Savage v. Town of Rye, 1980. (1)
In Route 12 Books and Video v. Town of Troy , June 2003, the NH Supreme Court advised municipalities that ". . . it is not only their function, but it is their obligation to provide reasonable assistance to their citizens (in submitting proper applications to land use boards). The Court commented that the town's failure to provide the applicant with assistance in resubmission of applications and appeals was "questionable" . . . ."
(1) Arranging Your Furniture - Operational Basics for Local Land Use Boards - H. Bernard Waugh, Jr., Gardner Fulton & Waugh, Lebanon, NH from his paper presented at the NH Office of Energy and Planning conference, October 2004,
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