Appeals Process

Staff of the Town of Pelham can provide objective information regarding the process and copies of public documents that are part of the file in the matter. In terms of strategy and legal rights, such matters should only be discussed with your attorney and cannot be provided by Town of Pelham staff.

Although an attorney is not required to file any local appeal, it is strongly recommended that legal counsel be sought, as these processes require careful attention to detail and legal requirements. Attorneys specializing in land use and municipal law can be found in the phone book and by contacting the New Hampshire Bar Association in Concord.

Construction and other activities that are completed during the pending appeal period for any permit or approval is always “at-risk”. Although the Town of Pelham will issue approvals and permits, an appeal can result in a halt to construction and, in some cases, removal of construction in furtherance of a permit that is overturned or revoked.

Almost any decision made by the Planning Board, Zoning Board of Adjustment, Zoning Administrator, and the Building Inspector can be appealed. Although the reviewing authority, time frames, and processes are different, it is important to note that an appeal can occur regarding almost all local actions. Such decisions include but are not limited to: Planning Board Site Plan and Subdivision Approvals and Special Use Permits; Zoning Board of Adjustment Variances, Special Exceptions, and Appeals from Administrative Decisions; and Building Permits and Administrative Decisions of the Zoning Administrator (Planning Director) or Building Inspector can also be appealed.

For all appeals, time is of the essence. On December 17, 2009, this document was revised to reflect a December 14, 2009, change to the ZBA Bylaws that makes all appeal periods thirty (30) days regardless of which Town official or land use board arrived at the approval, denial, or administrative decision being appealed. As with all appeals, we recommend that you consider a consultation with an attorney to make sure you comply with these requirements.

Any appeal from any decision of the ZBA first requires the filing of a “Motion for Rehearing.” This process is required and is covered by NH RSA 677:2. The motion must be filed within thirty (30) days, subject to further requirements found in the statute.

In order to file an appeal, a person must have “standing,” i.e., the legal right to challenge the board's decision. Abutters to the property will almost always have standing along with persons who own property close enough to the land in question to demonstrate that they are affected directly by the town's action. One way to determine whether someone has standing, or qualifies as “a person aggrieved,” is whether the person requesting the appeal is impacted differently than the public at large. For appeals at the local level, an appeal application must be filed. These applications can be obtained at the town hall or on the Pelham website.

The first step will be for the ZBA to deliberate on whether to grant a rehearing. If the rehearing is granted, the formal hearing process is completed, and a new decision is made (the new decision can be the same or different from the prior decision). If the decision is upheld (the same), the appellant can go to the Court. If the board reverses a decision at a rehearing, a new aggrieved party results, and that party then has 30 days in which to appeal for a rehearing on the new decision. (This does not mean that boards of adjustment will be forced to consider an endless series of rehearing applications, for it is only when the board reverses itself at a rehearing - thus creating new aggrieved parties - that the statute comes into play.) Shaw v. City of Manchester 118 NH 158, (1978). (See Dziama v. City of Portsmouth, 140 NH. 542, 669 A.2d 217 [1995]). When the Board votes to deny a rehearing or upholds its previous decision, the next step is the Superior Court.

Once the motion for rehearing process has ended, the decision of the ZBA can be appealed to the Superior Court. An appeal to the Court must be filed within thirty (30) days of the decision. NH RSA 677:4.

Appeals must be filed with the Town of Pelham Planning Department. The decision being appealed determines which board must hear the appeal. Applications can be picked up from the Planning Department or downloaded from the Planning Department's section of the Town website.