land use

Fairness is a recurrent issue in zoning board of adjustment proceedings because of the statutory requirement that “the concurring vote of 3 members of the board shall be necessary to reverse any action of the administrative official or to decide in favor of the applicant on any matter on which it is required to pass." RSA 674:33, III.

Q. What is an “ex parte" communication?
A. This is a Latin term that means “by or for one party." In this instance, it refers to communication between a land use board member and a person interested in an application, without other interested persons, other board members or the public being present.

Q. Are these types of discussions a problem for land use boards?
A. Yes, if an ex parte contact occurs, several different problems could arise when that contact is eventually disclosed.

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.

A zoning ordinance is a comprehensive system to regulate the timing and manner of development in a municipality. Ordinarily, all land use within a town or city is subject to the local zoning ordinance and land use regulations. However, it may be surprising to learn that the law provides an exception for “governmental uses" of land.

Towns and cities have several options available to manage, conserve and protect town property in ways that best fit the needs of the municipality. Voters may establish a conservation commission to encourage the conservation of lands within their town by purchasing land or easements to protect a parcel from development and to conserve it for future generations. Voters may also vote to establish a town forest to ensure that particular attention is given to the management of a specific piece of town property. In this way, the town forest can be maintained as a healthy and productive forest.

Q. We have been dealing with a land use violation in our code enforcement department. We have alerted the owner to the problem, and have tried to resolve the issue by seeking his voluntary compliance. Unfortunately, the owner has ignored our letters and calls and we think that an action in court will be required. Is there any statute that describes how to seek enforcement in these cases?

Unlike the zoning board of adjustment, there is no statute that requires any participant in a matter before the planning board to move for a rehearing prior to seeking further review of a decision by appeal. This can lead to confusion when a participant in fact does move the planning board to grant a request for rehearing.

All New Hampshire municipalities are familiar with land use regulation. Even the smallest towns face questions of growth, development, compatibility of uses, conservation of resources, and the need for infrastructure. Municipalities have a number of well-worn tools at their disposal to address these questions, including the master plan, subdivision and site plan review, special exceptions, and variances, to name a few. One option that local officials may know less about, however, is the “conditional use permit," sometimes called a special use permit.

In 2005, the New Hampshire legislature enacted two bills that alter public notice requirements for governing body acceptance of unanticipated revenue and sale/acquisition of town-owned land. Another bill changes the appeal period for decisions of the zoning board of adjustment and planning board. Also, legislation was enacted establishing a new revolving fund option, and a new exception was added to RSA 674:41 , which governs building on lots that lack frontage on a Class V or better road.

Requirements surrounding the location and operation of salvage facilities frequently raise legal questions. When the State Legislature drafted the salvage facility laws, it attempted to balance two interests. First, it recognized that a “clean, wholesome, attractive environment" promotes the health and safety of its citizens. Such an environment is “essential to the maintenance and continued development of the tourist and recreational industry." Second, the Legislature understood that the maintenance of legal salvage facilities is a business and should be encouraged.