How to navigate your local zoning board of adjustment

Most business owners are aware that most of New Hampshire’s municipalities have adopted zoning ordinances which regulate how land can be used. Businesses that are new to an area of the state, or that are growing and expanding, may encounter situations in which they need to seek relief from the applicable zoning ordinance.

Enter the zoning board of adjustment — the ZBA. Business owners seeking legal advice regarding the ZBA process tend to ask the same questions: What is the process? How long does it take? What happens if the ZBA denies the request? This article provides a basic overview that answers all of these questions.

Because the ZBA process will vary between municipalities, the first step is to visit the municipality’s website. There, a would-be applicant will typically find useful materials like the ZBA’s rules of procedure, application forms, and sometimes a guide that includes information like deadlines for application submittals, applicable fees, and a list of materials that are required to be submitted along with the application form. If this information is not available on the municipality’s website, a quick call to the planning coordinator to inquire about the process can be incredibly informative.

Generally, application forms and any related materials are due two to three weeks prior to the ZBA meeting. The municipality will then notify the abutting property owners of the scheduled hearing. At the hearing, the ZBA will first invite the applicant to make a presentation, during which the applicant should provide some background regarding the project and explain why any criteria that must be satisfied are, in fact, satisfied. Next, the board members will have an opportunity to ask questions of the applicant. From there, the board will open the hearing to the public. The applicant will have an opportunity to respond to any concerns raised.

The board will then enter deliberations.

Most applications are decided in a single meeting. However, if the board feels that it requires additional information, it may elect to continue the hearing to its next regularly scheduled meeting. The board may also vote to continue if the application raises legal issues that require input from the town/city attorney. With this in mind, from the date the application is filed, it typically takes 1 to 3 months for the ZBA to make its decision.

Sometimes, of course, things do not go as planned and the ZBA denies a request for relief. In this position, the first step is to — within 30 days of the date of the denial — file a motion for rehearing with the ZBA. It is important to delineate, in the motion for rehearing, every basis for the applicant’s argument that the ZBA’s decision was incorrect. This is because the arguments and information that the applicant is permitted to present to the judge on a future appeal to court will be limited to the arguments and information that the applicant presented to the ZBA. The ZBA will consider the motion for rehearing at its next regularly scheduled meeting — one month after the meeting at which it denied the application.

If the ZBA votes to grant the request, a new hearing will be held at the board’s next regularly scheduled meeting — two months after the hearing at which the board denied the application. At the new hearing, the applicant should be prepared to re-present its application in full, including information presented at the initial hearing and any additional information.

If the ZBA votes to deny a request for rehearing, the applicant then has 30 days to file an appeal with the Superior Court. The municipality will be required to submit the “certified record” — all of the documents and information relating to the ZBA’s decision — to the court. The court will review the certified record, hold a hearing, and typically allow the parties to submit written memoranda in support of their positions.

The court will reverse or remand the ZBA’s decision only where (a) it determines that the ZBA committed an error of law; or (b) the court is persuaded by the balance of probabilities that the ZBA’s decision was unreasonable. The court will uphold the ZBA’s decision if the evidence reasonably supports it, even if the court itself would have reached a different conclusion. It can typically take anywhere from six to eight months to get a decision from the court.

Megan Carrier is a shareholder in the Litigation Department at Sheehan Phinney, focusing on business litigation in disputes before state and federal courts, administrative tribunals, arbitrators and in mediation.