Legal Q and A: Zoning Protest Petitions

This is the time of year for planning boards to consider proposed changes to local zoning ordinances. In certain instances landowners may use a procedure found in RSA 675:5 to “protest” a proposed change, and force the margin of approval from a majority of votes cast to two-thirds of those citizens voting. The purpose of this provision is to protect landowners from ill-advised amendments to zoning ordinances. Disco v. Board of Selectmen of Amherst, 115 N.H. 609 (1975). Although this provision has been in the law for many years, it may prove to be difficult to administer in some situations, and thus worthy of study before a petition actually is filed with your municipality.

Q. What sorts of changes are subject to the “protest” procedure?

A. The amendment or repeal of zoning regulations, restrictions and boundaries. That is, the language of the zoning ordinance itself, and not the terms of the subdivision regulations, site review regulations or rules of procedure that the planning board adopts for its own governance. The original adoption of a zoning ordinance as a whole is not subject to the protest procedure.

Q. Are there limits to the proposals that may be protested?

A. Yes. Any proposal that applies to more than one-third of the land area of the municipality may not be protested. If the proposal affects a qualifying land area, each protest petition may affect an amendment which alters the boundary lines of a previously defined zoning district or regulations or restrictions applicable to the affected area.

Q. How does the protest procedure work?

A. A petition document must be created and signed. There are two groups that may qualify, being the owners of 20 percent of the area of the lots included in the proposed change, or the owners of 20 percent of the area within 100 feet immediately adjacent to the area affected by the change or across a street from such area. The owners must identify themselves by name and address, or by tax map lot and number, or by whatever means the municipality uses to identify the land in question. The purpose of these details is to allow the governing body to identify the owners as interested and affected parties. The petition must be filed with the governing body at least seven days prior to the meeting where the changes are to be considered. A notice of receipt of the protest petition shall be posted at the polling place and the moderator shall announce the receipt of the petition at the opening of the meeting.

Q. Are there special rules that alter the procedure further?

A. Yes. Each protest petition may only apply to a single article on the warrant. When calculating the 20 percent land area, the area of streets, commons or lands owned by a governmental entity shall not be included in the calculation.

Q. Is the governing body required to determine whether a protest petition meets all of the statutory requirements prior to the vote being cast?

A. No. There is no such requirement in the statute. If a proposed warrant article fails to attain a majority vote, the article fails anyway and the protest petition becomes meaningless. If the article passes by a greater than two-thirds margin, the article passes even in the presence of the protest petition. Thus, the issues arise when the article passes by a majority vote, but less than a two-thirds vote. The governing body must then determine the validity of the protest petition. That is not always easy when one or more of the affected lots cross a town boundary, or when the lot area shown on the tax map does not agree with the area shown on a survey or subdivision plan. There may also be ownership issues, such as when the lot is in a condominium form of ownership, or when the land is owned by multiple parties but not all of the parties have signed the petition.

Q. Who can sign a protest petition?

A. The property owner, who need not be a voter in the municipality. A person renting or leasing the property is not authorized to sign. If the owner is a business entity, such as a corporation, partnership or LLC, then the petition may be signed by a person authorized to bind the entity in a contract. A trustee could bind a trust, but a single co-trustee might not, if the underlying instrument required all trustees to agree. A condominium unit owner can sign relative to the condominium unit, but the common areas are usually managed and controlled by the unit-owners’ association.

Q. What if the amount of land covered by the signatures doesn’t quite meet the requirements in the statute?

A. The statute is precise; if there is any shortfall in the calculation of amounts, the petition is not valid. This calculation can be difficult in at least three situations:

a. If a proposed amendment applies to lots of a certain size throughout the town, it could be protested so long as those lots are less than one-third of the total land area in the town. However, if the signatures of the owners of 20 percent of the area within 100 feet immediately adjacent to one of the lots affected by the change are obtained, that is not enough. The need is either for the signatures of 20 percent of the owners of all of the affected lots, or the owners of 20 percent of the area within 100 feet adjacent to every affected lot. See Treisman v. Bedford & Kamen, 132 N.H. 54 (1989).

b. If the group petitioning is the landowners within 100 feet of the affected lot, and the land is on or near a municipal border, then owners in the abutting municipality are considered part of the group for the 20 percent calculation. See Smagula v. Hooksett, 149 N.H. 784 (2003).

c. There can be a dispute about the size of the lots owned by members of these two groups. The selectmen are entitled to rely upon information included in the tax maps as they make their calculation. See Smagula, cited above.

Q. Wow, this can get complicated. Who figures all of this out once the petition is filed?

A. That job belongs to the governing body, meaning the selectmen, village district commissioners or city or town councils. They should take the time needed once the petition is filed to assure that it meets all of the statutory requirements, and actually binds the required amount of land before assuming that the petition is valid. It might require research at the Registry of Deeds and in the records of abutting municipalities to assure that all of the landowner interests required are covered by the petition. This is not simple, and, thus, they may need the assistance of town counsel to help discover the facts before they announce their decision.

Local officials in New Hampshire Municipal Association-member municipalities may contact LGC’s legal services attorneys for more information on this and other topics of interest Monday through Friday from 8:30 a.m. to 4:30 p.m. by calling 800.852.3358, ext. 384. School officials should contact the New Hampshire School Boards Association attorney at 800.272.0653.

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