By Paul Sanderson
The Planning Board and the Zoning Board of Adjustment are the most common land use boards in New Hampshire, and each has been assigned a set of legal responsibilities and the authority to adjudicate the rights and liabilities of property owners with respect to these legal matters. The boards do not go out to the community to develop their own cases; landowners come to the boards seeking relief in accordance with the requirements of the local Zoning Ordinance.
An important part of the adjudicative authority of the land use boards is the ability to attach conditions to their approvals of requests for relief. There are rules and limits on the exercise of this authority, and also practical steps to be taken that will reduce the number of disputes and increase the likelihood that the decision will survive a Superior Court appeal.
I. Understanding “Conditional Approval” and “Final Approval”
A planning board has the ability to attach conditions to any approval that is within its jurisdiction pursuant to RSA 676:4, I(i). A zoning board of adjustment has the ability to attach conditions to any relief that it within its jurisdiction in accordance with decisions of the New Hampshire Supreme Court. The conditions must be reasonable, and relate to the spirit of the ordinance in question and the actual use of the land, and not to the person who is to be using the land. See Wentworth Hotel v. New Castle, 112 N.H. 21 (1972) and Peabody v. Windham, 142 N.H. 488 (1997). The exception to this rule is found at RSA 674:33, V, relating to approving reasonable accommodations to persons with physical disabilities, which can be conditioned to expire only as long as the named person has a need to use the premises.
Since the land use boards clearly have the ability to add conditions to their decisions, what is the difference between a “conditional approval” and a “final approval”? The Supreme Court has indicated that the purpose of allowing conditional approvals is to avoid a requirement that any impediment to full approval must result in a formal disapproval of the application and the wasteful necessity of starting all over again. Sklar Realty v. Merrimack, 125 N.H. 321 (1984).
Therefore, “conditional approval” is an interim step in the process of the board’s consideration of the application. A “final approval” cannot be given to the applicant until all of the “conditions precedent” have been met by the applicant. Simpson Development Corp. v. Lebanon, 153 N.H. 506 (2006). What is the difference between a “condition precedent” and a “condition subsequent”?
The Court has defined it this way. A “condition precedent” is some action that has to be taken by the applicant in order to remove an impediment to “final approval”. These are the things that need to be done before the town will take the additional step of granting “final approval”. A “condition subsequent” defines an action or behavior that binds the applicant, but does not need to be accomplished before “final approval” is granted. Property Portfolio Group, LLC v. Derry, 154 N.H. 610 (2006).
A subdivision plan or site plan cannot be recorded at the Registry of Deeds, and land cannot be conveyed by reference to such a plan, until “final approval” has been granted. When economic conditions are good, and demand for the new product is high, there is generally a short period between the entry of a “conditional approval” and the achievement of “conditions precedent”. When economic conditions are less favorable, the gap may extend over a period of years, and on occasion are never achieved. For this reason, many boards now impose time limits upon applicant to achieve conditions precedent to final approval, and require applicants to return to them in the event the time limits are not achieved.
There is also a potential need to schedule a further public hearing in the Planning Board prior to issuance of a “final approval.” The Planning Board must hold an additional public hearing on the matter unless the conditions precedent are “minor,” “administrative,” or involve “possession of permits and approvals granted by other boards or agencies.” It is not unusual for the permits or approvals granted by other agencies to require some substantive change in the plans conditionally approved by the Planning Board or Zoning Board of Adjustment. If plans must change substantively in order to comply with these other approvals, a public hearing on the changes must be held with appropriate notice to all interested parties. RSA 676:4, I(i).
Whether a condition is a “condition precedent” or a “condition subsequent” also impacts when those who are unhappy with a decision may appeal that determination. With a Zoning Board of Adjustment, the time for appeal is relatively clear, in that a person must file a Motion for Rehearing within 30 days of a decision, and an appeal with the Superior Court within 30 days of the denial of a Motion for Rehearing. These time limits are strictly construed by the Courts. See RSA 677:2, and Bosonetto v. Richmond, 163 N.H. 736 (2012).
With the Planning Board, the appeal issue has been less clear, in part because there is no requirement for anyone to file a “Motion for Rehearing” to highlight the part of the planning board decision causing disagreement. In addition, it was unclear about when the appeal period commenced for planning board decisions. Was an appeal required when a conditional approval was first voted? Did the appeal period commence only upon “final approval”? Did the right to appeal attach when the Planning Board made an important interim decision, such as on the meaning of the zoning ordinance? Also, should the appeal be made to the Zoning Board of Appeals, or to the Superior Court, or both?
These questions sparked litigation attempting to interpret the meaning of RSA 677:15, the statute governing appeals from planning board decisions to the Superior Court, and RSA 676:5, III, the statute governing appeals to the Zoning Board of Adjustment based upon interpretations of the meaning of the Zoning Ordinance. The rule that emerged was that a planning board decision about the zoning ordinance itself was appealable to the Zoning Board of Adjustment when the decision was made. Atwater v. Plainfield, 160 N.H. 503 (2010). This might be at an early phase of the review, prior to the entry of a conditional approval, and well prior to entry of a final approval.
As to other Planning Board decisions, not involving the interpretation of the ordinance, the matter is subject to an appeal when the decision complained of is made. Usually this is at the time of entry of the conditional approval, but conceivably could be at an earlier point. Saunders v. Kingston, 160 N.H. 560 (2010).
In an effort to reduce uncertainty in this area, the Legislature passed an amendment to RSA 677:15. New section 1-a, effective August 31, 2013 requires an appeal to the Zoning Board of Adjustment in the first instance. If first appealed to the Superior Court, and if it appears the ZBA should have heard the case first, the Court must stay its actions until the ZBA has heard the case.
Therefore, careful advocates will now examine any decisions made by the Planning Board at any point in the process of review of a subdivision or a site review, with an eye to determine whether or not such decisions should be appealed to the Zoning Board of Adjustment. Failure to undertake such an appeal might prevent the party from appealing the matter in the future.
With all of this, it would be easy for Planning Board members to conclude that they should not attempt to review a matter until all of the other interested agencies or boards have made their decision. In fact, some boards reached this conclusion, and refused to accept an application as “complete” until the other necessary approvals or permits were in hand and filed with them. The legislature found this procedure to be inappropriate, and in 2010 adopted an amendment to prohibit the practice, and instead make receipt of other permits or Board approvals a condition precedent to final approval. RSA 676:4, I(b). Thus, Planning Boards must go forward with their review process once an application has been received.
II. Improving the Quality of Motions and Decisions
The language of your decisions is not being drafted for the benefit of those who are in the room making the decision; the language is drafted for those who will use the decision in the future to implement the approved project, or to take enforcement action if the landowner or a successor owner fails to live up to the conditions imposed upon the project. Remember, the relief offered by land use boards runs with the land, and is not personal to the person who initially sought the relief, unless you are dealing with the special disability exception for variances contained in RSA 674:33, V. Here are some thoughts:
A. A motion should be clearly stated, and a written copy should be provided to the person who is taking the minutes, when possible. Think about how many times each of you as board members has seen a situation where a discussion of an issue ends with a member stating, “Are we all agreed?”, following by heads nodding in unison. How is the person taking the minutes to record that action? What are the chances that at least one member perceives the “agreement” differently from at least one other member? How are the parties and the public to understand the action that has been taken? Please stop, and assure that all motions are clearly and verbally stated. When possible, a written copy should be provided to the person taking the minutes, to reduce the chances of error and misunderstanding.
B. The motion should describe the plan set submitted by the applicant that is actually being used to craft the approval. As projects become more complex, the number of submissions of different versions of the plans, in both paper and electronic formats, steadily increases. Thus, for the benefit of future officials and board members, the motion should describe the plan set being used as the basis of the motion. Often the engineer or surveyor will include a project or file number, and a block with the date of the latest revisions. Refer to that information in your motion. Don’t grant a final approval until the plan set that is to be recorded at the Registry of Deeds agrees in all respects with the motions and conditions of approval imposed along the way. That is, be sure that the “final approval” of the final plan set really does reflect completion of all of the “conditions precedent”.
C. Be careful that the words you use accurately describe what you want to accomplish. For example, don’t say, “I move to approve the ten foot variance.” While it may be clear to everyone in the room that night what the board is attempting to accomplish, how can a building official determine what that means five years later when a surveyor requests information to create a plot plan that will be used as part of the landowner’s mortgage closing process?
Instead, say something like, “I move to approve the applicant’s request for a variance from section ___ of the zoning ordinance to permit the construction of a single family structure that is located twenty feet from the easterly sideline of the land shown on Tax Map ___ Lot ___ when thirty feet is required, in accordance with a plan entitled, _____ as drawn by ____, dated _____, and submitted by the applicant as part of this hearing, with the following conditions: _______.”
D. Don’t expect the parties to draft the language that you want. If the parties are represented by lawyers, you can expect to receive a written proposed motion to support the view of the party being represented, and a written request for findings of fact. The lawyers are approaching the case as litigators and advocates for their client’s position, not necessarily from the viewpoint of board members.
If the parties are primarily represented by an engineer or a surveyor, the Board will receive a great deal of graphical evidence (plans), and perhaps written reports that describe the outcome of wetland studies, drainage calculations, or traffic counts or traffic movements during a study period.
That is, don’t expect the lawyers to create graphical plans, and don’t expect the engineers to craft a motion and request for findings of fact that would satisfy the Board. It is not realistic, except in the most straightforward of uncontested matters, for the members to simply attend a Board meeting and hope that one member will be able to immediately craft a clear motion for approval with accurate, complete and meaningful conditions that capture all of the thoughts of the Board. A well-crafted decision takes time, and advance preparation. It need not be completed in a single meeting if the Board needs to consider drafts of the decision, or to obtain legal advice regarding aspects of the decision. Please do not say to the person taking the minutes or the chairperson, “You know what I mean, just clean it up for the minutes and notice of decision.”
It is perfectly lawful to request a party to file proposed documents, or to request staff for the board to prepare a proposal in advance, or for a board member to craft and bring a proposal to a meeting to use as a basis for discussion. See Webster v. Candia, 146 N.H. 430 (2001). What is not lawful is to deliberate as a board on such proposals outside of a public meeting, either by holding an unnoticed meeting of the members, or through e-mail. See RSA 91-A:2, and 2-a. Your discussions on the proposed documents must take place only within a duly noticed and convened public meeting, and not otherwise.
E. Be very careful before incorporating any codes or other requirements by reference if the Board does not have a clear understanding of the implications of the action. For example, Boards will often require an applicant to “meet the requirements of the Police and Fire Departments.” This can have unexpected consequences.
See Atkinson v. Malborn Realty Trust, 164 N.H. 62 (2012), where that type of requirement was added as a condition of approval. Once the applicant met with the Fire Chief, the unusually steep nature of the lot and its driveway caused the chief to require the installation of residential sprinklers in a house, since the fire equipment could not get close enough to the house itself to provide service. The landowner balked at the requirement, altered the structure and took residence without an occupancy permit. In an enforcement action, the landowner defended by citing to a state statute that prohibited a planning board from imposing such a condition. The Supreme Court found that the requirements of the State Fire Code controlled the situation, and not the planning board statute.
Clarity in the Written Notice of Decision Assists in a Later Enforcement Action
All decisions of land use boards must be reduced to writing, and along with the minutes of the meeting, must be available to the public within five business days of date the vote was taken. RSA 676:3. The written notice of decision must, if a request was not approved, also contain the reasons for the disapproval. If approved, any conditions of approval must be detailed in writing. While the requirement of a written notice of decision is a basic component of the idea of procedural due process, and thus has a constitutional basis, there are other reasons why a Board will want to have a complete and accurate Notice of Decision.
Whether the application is approved, approved with conditions, or disapproved, there is likely to be someone who is unhappy with the decision that is made. The written decision is an opportunity to both record and communicate exactly what relief was granted, or detailed reasons why relief was denied. This will create a record for use in any current appeals of the decision, or a record that can be used by future officials or board members to determine whether the use of the land complies with the relief that was granted.
This can be very important when the matter comes up to the Superior Court on appeal. As the Supreme Court recently explained in Limited Editions Properties, Inc. v. Hebron, 162 N.H. 488 (2011), when the Court reviews a matter, the basis for the board decision may be found in the notice of decision, or in the board minutes, or both. The Court is looking to understand whether or not the Board properly applied the ordinance, and what the reasons were behind the votes taken by the Board. If these items are absent, the Supreme Court has warned us that those are the cases that are likely to be remanded.
The exact scope of relief granted by a board can be a very important issue in a later enforcement action. See, for example, the decision in Bennett v. Hampstead, 157 N.H. 477 (2008). The town’s zoning board of adjustment (ZBA) granted Bennett a special exception “to permit a home occupation— use of premises in connection with landscaping and property maintenance business.” When applying for the special exception, Bennett represented to the ZBA that the business would be of a certain size and scope. Years later, an inspection showed the scope of the business to be much larger.
Because the scope of the special exception was clear, the trial court directed him to return the scope of the business to the scope that had been approved by the ZBA when the special exception was granted. This successful result would not have been possible without adequate records from the action of the ZBA when it granted the special exception. This is the goal for all of the boards: to make decisions that are sufficiently detailed and clear that a future municipal official will be able to taken enforcement action in reliance upon them.
Paul Sanderson is Staff Attorney for the New Hampshire Municipal Association. He may be contacted at 800.852.3358 ext. 3408 or at firstname.lastname@example.org.
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