Lecture 3: Land Use Law Update Lecture 3: Land Use Law Update Part One: Statutes, 2008- -2011 2011 Part One: Statutes, 2008 NH Local Government Center NH Local Government Center 2011 Municipal Law Lecture Series 2011 Municipal Law Lecture Series Be njamin D. F Be njamin D. F ro st, E ro st, E sq., AI sq., AI CP CP Dire c to r, Public Affairs Dire c to r, Public Affairs Ne w Hampshire Ho using Ne w Hampshire Ho using (603) 310- -9361 9361 (603) 310 bfro st@ nhhfa.o rg bfro st@ nhhfa. o rg www.nhhfa.or g www.nhhfa.or g
Today’ ’s Roadmap s Roadmap Today Local Land Use Boards and Their Members Local Land Use Boards and Their Members 1. 1. Planning Board Procedure Planning Board Procedure 2. 2. ZBA Procedure ZBA Procedure 3. 3. Enforcement Enforcement 4. 4. Vesting and Growth Management Vesting and Growth Management 5. 5. Lot Mergers Lot Mergers 6. 6. Residential Sprinklers Residential Sprinklers 7. 7. Environment and Energy Environment and Energy 8. 8. Workforce Housing Workforce Housing 9. 9. 10. School Construction School Construction 10. 11. Developments of Regional Impact Developments of Regional Impact 11. 12. Conservation Commissions Conservation Commissions 12. 13. Community Revitalization Tax Relief Incentive Community Revitalization Tax Relief Incentive 13.
Local Land Use Boards and Their Local Land Use Boards and Their Members Members
Terms of Office; Land Use Board Def Def’ ’n n Terms of Office; Land Use Board 2010 Ch. 226 (HB 1174) 2010 Ch. 226 (HB 1174) � RSA 673:5, III RSA 673:5, III � � For appointed land use board members, if upon expiration of term no successor has been appointed, provides for continuation until such appointment is made – “holdover” status � RSA 672:7 RSA 672:7 � � Amends definition of “local land use board” to include any board or commission authorized under RSA 673 Formerly only planning board, zoning board of adjustment, � building code board of appeals, historic district commission, building inspector Now also includes heritage commission, agriculture � commission, housing commission and anything else the Legislature might subsequently include in RSA 673 � Pay attention to statutes that refer to Pay attention to statutes that refer to “ “land use boards land use boards” ” �
Designation of Alternates Designation of Alternates 2009 Ch. 114 (HB 44) Ch. 114 (HB 44) 2009 � RSA 673:12, III RSA 673:12, III � � Local land use board chair may designate an alternate to fill a vacancy temporarily until the vacancy is filled � RSA 673:11 only addresses the appointment of alternates when a regular member is absent or disqualified
Role of Alternate Board Members Role of Alternate Board Members 2010 Ch. 270 (SB 448) 2010 Ch. 270 (SB 448) � RSA 673:6, V RSA 673:6, V � � “An alternate member of a local land use board may participate in meetings of the board as a nonvoting member pursuant to rules adopted under RSA 676:1.” � RSA 676:1 RSA 676:1 � � “… The rules of procedure shall include when and how an alternate may participate in meetings of the land use board.” � Amend your rules of procedure to address this! Amend your rules of procedure to address this! �
Special Meetings for Zoning in SB2 Towns Special Meetings for Zoning in SB2 Towns 2010 Ch. 69 (HB 1211) 2010 Ch. 69 (HB 1211) � RSA 40:13, XVII RSA 40:13, XVII � � If the sole purpose of the special town meeting is for adoption, amendment or repeal of zoning, historic district ordinance, or building code, no deliberative session required � Why? Because zoning amendments can Why? Because zoning amendments can’ ’t be t be � amended at the deliberative session – – one session, one session, amended at the deliberative session only for voting only for voting
Planning Board Members on Other Boards Planning Board Members on Other Boards 2011 Ch. 190 (HB 409) 2011 Ch. 190 (HB 409) � RSA 673:7 RSA 673:7 � � Current law prohibits more than one planning board member from serving on other local boards and commissions � New: 2 planning board members may serve on other boards or commissions, except that only 1 planning board member may serve on Local governing body � Conservation commission � Other local land use board �
Minutes / Conditions of Approval Minutes / Conditions of Approval 2009 Ch. 266 (SB 189) Ch. 266 (SB 189) 2009 � RSA 676:3, II; RSA 677:4; RSA 677:15, I RSA 676:3, II; RSA 677:4; RSA 677:15, I � � Draft minutes must be available to the public no later than 5 business days after the meeting or vote (formerly 144 hours) � Now consistent with RSA 91-A (right-to-know law) � RSA 676:3 RSA 676:3 � � Applicants must be notified with detailed written description of any conditions necessary to obtain final approval � Recorded plats shall include (on or with) the final written decision and all conditions of approval
Planning Board Procedure Planning Board Procedure
Design Review Vesting (Old and New) Design Review Vesting (Old and New) 2006 Ch. 285 (HB 1508), 2008 Ch. 229 (HB 331) Ch. 285 (HB 1508), 2008 Ch. 229 (HB 331) 2006 � 2006 2006 – – RSA 676:12 RSA 676:12 � � “Design review” protection of plans; doesn’t apply to “preliminary conceptual consultation”—see RSA 676:4, II(a) and (b) � Protection from local regulatory changes for up to a year from the completion of the design review process But wait! There’ ’s more! s more! But wait! There � 2008 2008 – – RSA 676:4, RSA 676:4, II(b II(b) ) � � Allows planning boards to identify when design review period ends by establishing reasonable regulations, including submission requirements (is this really necessary?)
Planning Board Waivers Planning Board Waivers 2009 Ch. 292 (HB 43) Ch. 292 (HB 43) 2009 � RSA 674:36, RSA 674:36, II(n II(n) & 674:44, ) & 674:44, III(e III(e) ) � � Addresses the limitation on planning board authority imposed by Auger v. Strafford (2007)( Auger I ) � Restores board flexibility roughly to where it was under common law ( Frisella v. Farmington , 1988) � Waivers may be granted if (old law, roughly) Hardship is shown and granting would not � be contrary to the spirit and intent of the regulation, OR (add new law) Specific circumstances relative to the � subdivision, or conditions of the land in such subdivision, indicate that the waiver will properly carry out the spirit and intent of the regulations. � The basis for any waiver is to be recorded in the board’s minutes � Provisions for waivers to either subdivision (RSA 674:36, II(n)) or site plan regulations (RSA 674:44, III(e))
Third Party Review Third Party Review 2009 Ch. 73 (HB 156) Ch. 73 (HB 156) 2009 � RSA 676:4 RSA 676:4- -b b � � Adds new RSA 676:4-b, providing detail to planning board practices of hiring consultants during application review process, and � during project construction � � Review billing must be accompanied by detailed invoices with reasonable task descriptions for services rendered � Construction defects or deviations from approval that are observed by a third party inspector must be promptly reported to planning board and applicant Failure to report defects or deviations may subject the � inspector to a complaint to the Joint Board of Licensure
Dam Owner Notification Dam Owner Notification 2009 Ch. 31 (SB 28) Ch. 31 (SB 28) 2009 � RSA 676:4, I RSA 676:4, I � � (b) Application requirements: “Since construction of any structure near streams or rivers downstream of a dam can increase the hazard classification of the dam established by the department of environmental services, the application shall identify the nearest dam upstream and include the name and address of the dam owners.” � (d) Certified mail notice required to upstream dam owners and DES dam bureau for development proposals “near rivers and streams and downstream from a dam.”
Dam Owner Notification, revisited Dam Owner Notification, revisited 2011 Ch. 164 (HB 205) 2011 Ch. 164 (HB 205) � RSA 676:4, RSA 676:4, I(b I(b) and (d) ) and (d) � � Introduced as a repeal of 2009 legislation; House changed to reform � Removes 2009 language from RSA 676:4, I(b) and (d) � Adds new subparagraph to RSA 676:4, I(d) (2) For those proposals in which any structure or proposed � building site will be within 500 feet of the top of the bank of any lake, pond, river, or stream, the planning board shall also notify the department of environmental services by first class mail at the same time that notice is provided to abutters, cost to be paid in advance by the applicant consistent with subparagraph (d)(1). The sole purpose of notification to the department shall be to provide information to the department for dam hazard classification. This requirement shall not confer upon the department the status of an abutter. Failure by the municipality to notify the department shall not be considered a defect of notice.
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