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Bar News - June 21, 2013


Municipal & Governmental Law: In Land Use Matters, Speaking Not the Same as Standing

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Residents who testify before land use boards often mistakenly believe that their mere participation in public session gives them the right to ask for rehearing or appeal to the superior court.

In New Hampshire, more is required. An appellate body will balance relevant factors, on a case-by-case basis, to determine standing. When that body determines, from a review of the facts, that an appellant has a sufficient “definite direct interest in the outcome of the proceedings,” it will conclude that standing exists, according to Weeks Restaurant Corp. v. Dover (1979).

Appellants sometimes rely on the Right to Know Law in arguing that they have a “right” to participate more actively in a hearing, seek rehearing, or appeal to the trial court. However, the purpose of RSA 91-A is to give “the greatest possible public access to the actions, discussions, and records of all public bodies, and their accountability to the people.” While RSA 91-A provides a right to attend a public meeting and observe the public process at work, it does not necessarily grant the right to participate actively in the meeting or appeal the decisions made there.

The degree to which a governmental body wishes to allow public participation in its meetings is within its discretion, as long as it is not unlawful, according to the NH Supreme Court’s 1977 ruling in State v. Dominic. But, a person whose property might be affected by a municipality’s decision also has certain due process rights. The state constitution guarantees such an person the right to be heard “at a meaningful time and in a meaningful manner,” according to In re Pennichuck Water Works, Inc., (2010).

State laws also protect due process at land use board meetings. For instance, RSA 676:7, I(a), concerning public hearings of a zoning board of adjustments, provides that applicants, direct abutters, and persons “directly affected” shall be heard; others may be heard at the board’s discretion. In towns with liberal policies allowing any member of the public to speak during public session, land use boards typically only deal with standing when it becomes an issue later. Citizens in such municipalities should not interpret this indulgence as a “concession” that standing exists.

Weeks abolished an earlier rule that standing, for purpose of a planning board appeal, was limited to abutters. The Weeks court articulated a new common standard for determining standing in land use board appeals: “definite direct interest in the outcome of the proceedings.” It also offered up a four-prong, nonexclusive test to determine whether such an interest exists.

The Weeks petitioner owned and operated a restaurant near a proposed competing restaurant. Its property was separated from the proposed site by a public highway. Weeks vigorously opposed the plan and offered testimony at public hearings concerning potential traffic problems. In part, it asked the NH Supreme Court to overrule or modify the “abutters only” rule established in two prior cases.

The court, finding that those two cases conflicted with numerous others, expressly overruled the two cases to the extent that they prevented non-abutters from appealing planning board decisions. The court ruled that standing is a factual determination based on, but not limited to, these factors: (1) the proximity of plaintiff’s property to the site for which approval was sought, (2) the type of change proposed, (3) the immediacy of the injury claimed, and (4) the plaintiff’s participation in administrative hearings.

Since 1979, the Weeks test has been employed in numerous circumstances, including:
  • Nautilus of Exeter. Inc. v. Town of Exeter, 139 N.H. 450 (1995): Standing does not exist where the only adverse impact a petitioner might feel from the board’s decision is increased competition.
     
  • Golf Course Investors of NH, LLC v. Town of Jaffrey, 161 N.H. 675, 680 (2011): A non-abutter does not establish a “direct, definite interest” by close proximity alone.
     
  • Hannaford Bros. Co. v. Town of Bedford, Docket No. 2011-611 (decided Apr. 25, 2013): Raising a constitutional issue (such as equal protection) does not confer standing: The appellant must demonstrate a “definite direct interest in the outcome of the proceedings.” Also, concern with possible “future action” is an indefinite interest that does not support standing.
RSA 491:22, as recently revised, grants taxpayers standing to challenge government conduct that is alleged to be unlawful or unauthorized. It also allows taxpayers to lodge a declaratory judgment action to attack the validity of a town’s zoning ordinance or land use regulations, or to allege that a board’s policies and procedures generally violate due process. However, an applicant cannot use a declaratory judgment action as a substitute for a RSA 677:4 or 677:15 appeal of a land use board decision under which he would lack standing.

The elements of standing should not be confused with the merits of the claim for relief. In evaluating standing, the focus is on “whether the party suffered a legal injury against which the law was designed to protect,” as written in the court’s 2008 decision in Libertarian Party of N.H. v. Sec’y of State. A right to seek relief is different from a determination that relief is appropriate. By focusing on the Weeks standard, attorneys can make forceful, effective arguments as to whether standing exists.


Lynne Guimond Sabean is an associate at Boutin & Altieri, PLLC, of Meredith and Londonderry, NH.

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