By C. Christine Fillmore, Esq.
Alternate members are the unsung heroes of local land use boards. Both planning boards and zoning boards of adjustment (ZBAs) may be authorized to appoint standing “pools" of up to five alternate members for each board. RSA 673:6. Alternates are vital to the proper functioning of these boards because conflicts of interest often disqualify one or more members from participating in an application or appeal. While the process of appointing alternate members is fairly straightforward, many questions arise regarding the legal role of alternates and how they may be used most effectively.
Q: Is there really a difference between alternate members and regular members?
A: Yes, there is an important difference. If land use boards were baseball teams, regular members would be the team’s starters; alternates would be the relief pitchers in the bullpen and the pinch hitters and runners in the dugout waiting to be called into the game.
The terms “members" and “alternate members" are not used interchangeably. For instance, different sections of the law explain how to choose “members" and how to choose “alternate members." See RSA 673:2 (selecting planning board members); RSA 673:3 (selecting ZBA members); RSA 673:6 (appointment of alternate members). There are also different terms of office for “members" and “alternate members." See RSA 674:5 (terms of land use board members); RSA 673:6 (terms of alternate members).
This distinction is important because in New Hampshire, towns and cities can only act when there is a statute granting them the power to do so. “Towns only have such powers as are expressly granted to them by the legislature and such as are necessarily implied or incidental thereto." Girard v. Allenstown, 121 N.H. 268 (1981). This means that unless a statute specifically grants alternate members the authority to act as full board members, we must conclude that they do not have this authority. No statute allows alternate members to participate in any matter as a board member unless and until they have been “designated" by the board’s chair to sit in the place of a member who is absent or disqualified. RSA 673:11. In addition, no statute permits alternate members to be appointed as chairman or other officer of the board; those offices may only be held by regular members. RSA 673:8.
Q: How are alternates “designated" to act, and why does it matter?
A: Alternates are “appointed" to be- come part of a standing pool that is available to be called into service when needed. Just as relief pitchers do not enter the baseball game until the starting pitcher has been pulled, alternates do not participate as members of a land use board until the chair “designates" them to do so. Whenever a regular member of a planning board or a ZBA is absent or is disqualified from participating in a specific matter due to a conflict of interest, the chair of that board will designate an alternate to sit in that regular member’s place. RSA 673:11. At this point, the alternate has authority to act as a full board member for the duration of their “designation." Depending upon the situation, an alternate may be designated to sit in place of a member for an entire meeting, or for one specific matter (which may extend over several meetings or hearings).
Q: Should alternates participate in discussion and voting all the time?
A: No. Unless and until they are designated to sit in place of an absent or disqualified member, alternate members have no authority to participate as board members. During a hearing or other formal proceeding involving an applicant, alternates should not participate in board deliberations, ask direct questions of applicants, or vote on applications or appeals. It is important to avoid confusion about who is a participating member and who is not at any particular time, which means that alternate members should not sit at the table with the board during hearings or other formal proceedings unless they are designated to sit in place of a member. Although alternates should be encouraged to attend all meetings, and perhaps join discussions at work sessions or other meetings where no formal action is to be taken, they should sit with the public unless they are sitting in place of a member.
If alternate members do participate as a board member without being designated to sit in place of an absent or disqualified member, it is no different from allowing members of the public to participate as a member of the board. No planning board or ZBA would consider doing that, and it is really the same with alternates.
Q: So if they can’t participate, why should alternates attend the meetings?
A: Alternates are critically important. Land use boards simply cannot function without alternates because conflicts of interest are so common in those matters. Alternates are the safety net that allows these boards to function properly and continue to serve the public. Alternates are also the most common source of future board members, so the experience they gain through both observation and participation are important preparation for these future roles.
It is essential to have alternates in attendance to serve when they are needed. This is particularly important for ZBAs because at least three concurring votes are required in order to find in favor of any applicant. RSA 674:33, III. If only three ZBA members can participate in a matter, 100 percent of them must agree in order to reverse any action of an administrative official or decide in favor of any applicant. The availability of alternates helps ensure fairness to the applicants, and prevents both planning board and ZBAs from being unable to act at all if a quorum is not present.
It is also very important for alternates to be knowledgeable enough about the board’s business to be able to participate fully when they are called upon. Alternates should be encouraged to attend meetings to observe and learn in preparation for those times when their service is needed, and to become familiar with the facts of cases on which they may be asked to substitute during a later meeting or hearing.
Q: If a position on the board is vacant, can an alternate member fill the seat until a permanent replacement is appointed?
A: No. The law only allows alternates to be designated to sit in the place of an “absent" or “disqualified" member. RSA 673:11. These are temporary conditions in which a board member cannot serve at a particular time but remains on the board. In contrast, a “vacant" position is one that is not filled; the member who vacated the position is not returning to the board at all. No law allows the chair to designate an alternate to sit in that situation. That position remains completely vacant until a replacement is appointed. While alternates are likely to be the best source of replacement members to permanently fill vacancies, they cannot be used as temporary members.
Q: What if an application or appeal is continued during several meetings? Does the same mix of regular and alternate members have to participate in each of those meetings?
A: The law does not specifically require this, but it is the better practice to ensure that those who participate in and vote on a matter have been present at all sessions and hearings on that matter. This is a much easier task if alternates regularly attend meetings and hearings. However, no statute specifically requires board members to step down if they have not been present at all hearings on a case, or gives a board the authority to force members to recuse themselves in that situation.
The only real guidance on this issue comes from Fox v. Town of Greenland, 151 N.H. 600 (2004). This case involved a ZBA member who missed two of four hearings on an application but participated in the board’s deliberations and vote. The Court decided the case on other grounds and did not have to decide whether or not the member should have participated in the decision. However, the opinion in this case suggests that a member who was absent for some of the hearings could still participate in the deliberations and vote if he familiarized himself with all of the evidence that was developed at the hearings he missed. The implication is that if the board member had participated without becoming familiar with all of the information, the Court might have invalidated the board’s decision.
Based on this case, and the waste of time and effort that results when a board’s decision is invalidated, the best practice is for the same combination of regular and alternate members to participate in all phases of a matter if possible. For instance, if a regular member were absent at the first hearing on a case (but not disqualified because of a conflict of interest) and an alternate were designated to sit in his or her place, it would be safest for the alternate member to continue to sit in the regular member’s place for the duration of the matter. However, if the regular member were available for later meetings and wanted to resume his or her place, he or she should be brought up to speed on the issues and facts by familiarizing himself or herself with all of the evidence developed during the earlier hearings. Otherwise, the decision might ultimately be invalidated by a court.
Along the same lines, alternates should be encouraged to attend meetings and hearings so that if they are needed to substitute in a later phase of the case, they have observed all hearings up to that point. It is important for anyone voting on a case to have all of the relevant information that was developed in the hearings. Hopefully, alternates who have attended the hearings will be familiar with the information and able to step into the shoes of a regular member who is unable to attend deliberations.
Q: How do ex-officio members fit into all of this?
A: An ex-officio member is “any member of a board who holds office by virtue of an official position and who shall exercise all the powers of regular members of a local land use board." RSA 672:5. For instance, planning boards in towns must include one ex-officio member appointed by the board of selectmen. RSA 673:2, II. This means that on a seven-member board, six positions are filled by election or appointment (as the case may be) and the seventh position is always filled by a representative chosen by the board of selectmen. This person may either be a selectman or another administrative official of the town. The ex-officio member is a full, voting, member of the board with all powers of other board members, except that he or she may not serve as the board chairman. RSA 673:9, II.
An ex-officio member differs in one other way from other regular members—he or she has a special alternate appointed by the same board that appointed the ex-officio member. When the ex-officio member is absent or disqualified, only the ex-officio alternate member may sit in that person’s place. RSA 673:11.
Q: If alternates are so important, can the board of selectmen have them, too?
A: No, but nice try. New Hampshire law does not authorize selectmen to create a standing pool of alternates, or even to appoint a “temporary" alternate to fill in for an absent selectman. This may present certain logistical challenges, particularly with three-member boards of selectmen, but that is the way the law is written. However, if a selectman is disqualified from participating in a specific matter because of a conflict of interest, the remaining members of the board may appoint a former selectman to fill in for that one specific matter. RSA 43:7. The disqualified selectman continues to be a board member and to participate in all other matters as usual except the one from which he or she is disqualified. In the unlikely event that an entire board of selectmen is disqualified, the board may ask the superior court to appoint former selectmen to handle the matter. RSA 43:8.