Standing to Appeal Requires “Continuous Participation”

Local appeals boards are usually in the habit of considering the particularized injury prong of the standing test, but often brush over the participation prong. The Lincoln County Superior Court recently issued a decision in Our Town, et. al. v. Town of Damariscotta, et. al. (Lin. Cty. Super. Ct. Dkt. WISSC-AP-2018-3), which serves as a good reminder to local boards of appeals that they have jurisdiction to review and determine whether the appellants before them have sufficiently participated in the hearing process. 

Most municipal ordinances allow for an “aggrieved party” to appeal local administrative decisions. To be “aggrieved,” a party must show that he or she participated throughout the administrative process, and that the decision causes him or her to suffer a particularized injury or harm. Participation generally requires the party to have attended the relevant meetings (whether in person or through written comments) and raised any issues he or she may have. When the appellant is an individual, participation is usually easy to demonstrate through examination of the meeting record. However, as discussed in the Our Town case, it can be more complicated when a group or coalition is appearing as an appellant. 

In Our Town, a group of affected individuals presented an appeal of a site plan approval issued by the Damariscotta Planning Board. When the Board of Appeals considered whether the group had standing, it noted that one of the members had appeared at a pre-application workshop, that none of the members had appeared at the Planning Board meetings on the application, and that one of the members had submitted written comments after the close of the hearing. Accordingly, it found that Our Town did not have standing because its members had not continuously participated in the review process. The Court agreed, holding that because it was the group that was asserting standing, the individual members had to have identified themselves as members of the group when they appeared. The Court also held that participation before and after, but not during the hearing, was not sufficient to demonstrate continuous participation. 

Appeals boards should, as a preliminary matter, evaluate both prongs of the standing test before proceeding to the merits of an appeal. If, on review of the record, it is clear that the appellant did not sufficiently participate in the review process, the Board is free to deny the appeal, and a court is likely to give that decision a good degree of deference.

Recent New Hampshire Supreme Court Case Places Limits on Planning Boards’ Site Review Authority

In Trustees of Dartmouth College v. Town of Hanover, _____ N.H. _____ (2018), decided November 6, 2018, the New Hampshire Supreme Court reversed the decision of the trial court, which had upheld the Hanover Planning Board’s decision denying Dartmouth College’s proposed construction of a new Indoor Practice Facility (“IPF”). Dartmouth sought approval for a 69,860 square foot IPF within the College’s existing athletic complex located in Hanover’s Institutional Zoning District (in which athletic facilities were an allowed use). The Planning Board, in a 4-1 decision, denied the site plan application on the grounds that it: (1) did not conform with the Hanover Master Plan; (2) negatively impacted abutters, the neighborhood, and others; and (3) did not promote the harmonious and aesthetically pleasing development of the town. The trial court upheld the Planning Board’s decision, finding that it was not unreasonable or unlawful.

The Supreme Court, however, overturned the Superior Court’s decision, finding that a reasonable person could not have reached the same decision based on the evidence before the Planning Board. The Supreme Court held that the Planning Board members had improperly denied the College’s site plan application based upon ad hoc reasoning characterized by conclusory statements and personal feelings unsupported by the evidence.

The case provides a number of issues for planning board members to consider when they are reviewing a site plan application, including the following:

1. Though a planning board is entitled to rely in part on its members’ own judgment and experience when acting upon a site plan application, the decision cannot be based solely upon personal opinions or “vague concerns” of its members.
2. Although on appeal a planning board’s factual findings are considered prima facie lawful and unreasonable, personal opinions and vague concerns are not factfinding entitled to deference.
3. A planning board cannot deny a proposed use simply because its members do not feel that the use is appropriate, where the use is allowed in the applicable zoning district.
4. A planning board cannot deny an application based upon general concerns if specific standards in the zoning ordinance addressing those concerns have been met. (For example, the Hanover Planning Board had denied the proposed IPF on the ground that it was too large and imposing, despite the building’s compliance with the zoning ordinance’s specific provisions relating to a structure’s height and size.)
5. If a use is permitted by the zoning ordinance, it cannot be barred by the site review process unless the use would create unusual public health, safety, or welfare concerns.

The case signals a subtle shift in the New Hampshire Supreme Court in favor of individual property rights (versus a planning board’s regulatory authority). This does not mean that a planning board cannot impose conditions that are reasonably designed to promote the public health, safety, or welfare. But where a proposed project meets the objective requirements of the zoning ordinance, a planning board must base a denial of that project upon specific facts showing a substantial risk of harm to the public health, safety, or welfare.