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Know the Law: What Are My Rights to Challenge a Site Plan Application?

Written by: Lexi S. Cote

Published in the Union Leader (12/4/2017)

Q: My neighbor filed a site plan application with our town’s planning board, which is considering the application at its next public hearing.  Will the planning board allow me to challenge the application?  If the planning board approves the application, would I be able to appeal the decision if I opposed it?
 
A: Depending upon the circumstances, you will likely be able to challenge your neighbor’s application at the planning board hearing.  Planning boards have discretion to listen to comments from anyone present at the hearing, and are required to hear comments from the applicant, owners of abutting property, and non-abutters who are able to demonstrate that they are directly affected by the proposal.  In this context, an “abutter” is a person whose property is in New Hampshire and adjoins or is directly across the street or stream from the land under consideration by the planning board.  If your property does not abut your neighbor’s property, you should be prepared to explain how the proposal will impact your use of your property.
 
If the planning board approves the application, you may be able to appeal the board’s decision to your town’s zoning board or to the Superior Court, depending upon the issue being raised on appeal.  In either event, only persons aggrieved by the planning board’s decision have the right—also referred to as “standing”—to appeal.  Being a resident of the town and a taxpayer will not be sufficient.  You would, instead, have to show that you had a direct and definite interest in the outcome of the proceeding.  
 
Whether you meet this requirement is a factual determination that would require the zoning board or the Superior Court to consider the following factors: (1) the proximity of your property and your neighbor’s property; (2) the type of change your neighbor is proposing; (3) the immediacy of the injury you are claiming; and (4) the extent to which you participated in the planning board’s hearing.  The zoning board or the Superior Court would balance these factors, along with any other factors they deem appropriate, to decide whether you have a sufficient interest to grant you standing to appeal.  Essentially, the closer the properties, the greater the change, the more immediate your injury, and the more you participated in the process, the more likely it is that the zoning board or the Superior Court will find that you have standing to appeal. 
 
Lexi Cote can be reached at alexandra.cote@mclane.com.
 
Know the Law is a bi-weekly column sponsored by McLane Middleton, Professional Association.   We invite your questions of business law.  Questions and ideas for future columns should be addressed to:  McLane Middleton, 900 Elm Street, Manchester, NH 03101 or emailed to knowthelaw@mclane.com.  Know the Law provides general legal information, not legal advice.  We recommend that you consult a lawyer for guidance specific to your particular situation.

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