Bar News - March 7, 2008
“On the Record” at the Midyear Meeting
Land-use law seminar addresses appeals process
By: Craig Sander
If there’s one thing attorneys took away from the recent “On the Record Appeals to the Superior Court” NHBA-CLE program at the 2008 Midyear Meeting, it’s this: if you can get zoning or planning board approval in the first place, do that. If you can’t, keep intensive records and prepare for an appeal at the very beginning.
That’s because, according to panelists, appeals before the Superior Court can seem lop-sided from the get-go.
“The burden of proof is enormous on the appealing party,” said Casassa & Ryan attorney and program chair John Ryan. “[At a hearing] there’s no discovery, no witnesses. There’s a presumption of going into it without an even footing.”
Getting board approval in the first place, however, could be harder than it sounds. Ryan says that acting as counsel before a zoning or planning board can be like stepping into the Twilight Zone.
“Contrary to the laws of physics, abutters will claim that water runs uphill,” reads the introduction of Ryan’s seminar handbook material. “The client’s three-lot subdivision will be considered the creation of a moonscape of Orwellian proportions, destroying the quality of life and causing the school system to collapse.”
Ryan and co-panelist, Dover attorney Malcolm McNeill of McNeill Taylor & Gallo, described other hardships in dealing with zoning and planning boards. They both say that boards are automatically skeptical of any expert evidence provided by developers, whether suspicion is justified or not. Also, they say that access to the board’s experts is nearly impossible to arrange, since they are not actively participating in the hearings and simply submit a report to the board.
Program panelist and Superior Court judge, John M. Lewis, says that although counsel may disagree with a board’s decision, it is important to remember that in many cases, board members are the most respected members of a community and should be treated that way.
McNeill has a similar but slightly different view, saying it is important to tone your approach to these members, since they have the power to approve or deny your proposals. Toning your approach can mean any number of things, from regularly bringing board members to the building site to changing the type of clothes you wear.
“I wouldn’t wear this suit to a hearing in the North Country and I wouldn’t wear on the Seacoast what I wear in the North Country,” says McNeill. “There are different mentalities.”
All of the preparation in the world, however, won’t always make the board decide favorably on a proposal. This, say Ryan and McNeill, is why an attorney should take great care in keeping records of every interaction with board members. When it comes time for the Superior Court appeal, you will want these records to compare with those of the Certified Record - the documentation supplied by the planning or zoning board to the court, which will be used as the sole authority during the hearing of the appeal.
“The municipality coordinates the Certified Records and often things will be accidentally omitted,” says Ryan. “That’s why you have to have your own records to compare with theirs. Then you can notify counsel and straighten it out.”
Get more in-depth and comprehensive information on this topic from the NHBA-CLE Department. The DVD or CD-audio is available electronically through our online AV catalog or by calling NHBA CLE at 603-715-EASY. For further information visit www.nhbar.org/NHBACLE or email Cheryl Moore, CLE Program Registrar at firstname.lastname@example.org.
View photos from the 2008 Midyear Meeting.