New Laws Will Affect Land Use Boards

Cordell A. Johnston

Every year’s legislative session yields at least a few changes to the state’s zoning laws and other statutes governing local regulation of land use. The 2018 session did not see major changes on the scale of some in recent years—for example, the 2016 laws on accessory dwelling units and agritourism—but there were several smaller changes that are worthy of note.

Voting on variances. There have been several efforts in recent years to establish a uniform method for zoning boards of adjustment (ZBAs) to vote on the five statutory criteria for the granting of a variance. The concern was that some ZBAs consider the five criteria and then take a single vote on granting the variance, while others vote on each criterion separately. The effort to establish a uniform method nearly succeeded in 2017 when the legislature passed a bill stating that the ZBA shall “vote[e] on each of the criteria . . . separately . . . and shall grant a variance only if each of the 5 criteria receives at least 3 votes in the affirmative.” However, the governor vetoed that bill, so it did not become law.

This year the legislature aimed a little lower. Instead of trying to establish a uniform voting method, HB 1215—which the governor has signed—requires only that each zoning board be consistent in whatever method it chooses:  The board shall use one voting method consistently for all applications until it formally votes to change the method.” If the board does decide to change its voting method, it must take a formal vote to do so, and the change may not take effect for at least 60 days. The change will apply only prospectively, and not to any application that is pending at the time of the change.

The new law, then, does not require any ZBA to change what it is doing. In fact, a board shouldn’t change its voting method unless it has a good reason to do so, in which case it must take a formal vote and not implement the change for at least 60 days.

Three affirmative votes needed for ZBA to act.  Another new law also deals with voting by ZBAs, and it raises some nettlesome questions.

Most ZBA members are familiar with the requirement in RSA 674:33, III, that “the concurring vote of 3 members of the board shall be necessary to reverse any action of the administrative officials or to decide in favor of the applicant on any matter on which it is require to pass."  This requirement becomes important when, for example, only three members of the ZNA are present for a hearing, or perhaps five are present but two must recuse themselves (and there are no alternates).  As we all know, if a motion to approve the application receives a 2-1 vote in favor, the motion fails, becauase the existing statute requires three affirmative votes "to decide in favor of the applicant."

This year, SB 339 amended that law to state that “the concurring vote of any 3 members of the board shall be necessary to take any action on any matter on which it is required to pass.” One might reasonably wonder what the difference is—what do the words “take any action” refer to that is not already encompassed by the existing statute?

At the Senate hearing on SB 339, the bill’s principal proponent explained that in the case of the 2-1 vote posited above,"It's not the application that fails at that point, it's the motion.  The motion doesn't proceed, because it doesn't have a majority, so the board fundamentally hasn't taken any action yet.  You need to have another vote, which is a motion to deny." The intended effect of the change made by SB 339 is that the motion to deny needs to get three votes to pass. In other words, while the prior law required three votes to decide in favor of the applicant, the new law will also require three votes to decide against the applicant.

To be clear, some attorneys (including this article’s author) are not convinced that a motion to deny is required once a motion to approve fails. If the applicant has requested a variance or a special exception, and the vote to approve it fails, is that not a de facto denial?

It is true that RSA 676:3, I, requires the board to "issue a final written decision which eithe rapproves or disapproves (the) application . . and . . . [i]f the application is not approved, the board shall provide the applicant with written reasons for the disapproval.” The board cannot simply let the matter drop after a vote to approve fails—it must provide written reasons for the disapproval, and this will be easier to do if there is a formal motion to disapprove, with the reasons for disapproval stated. One could argue, however, that once the motion to approve fails, the statute’s requirement is satisfied by the issuance of a written decision stating that the application was denied for failure to achieve the necessary three votes, and citing the reasons given by the member(s) who voted against approval—but those reasons would have to be stated clearly, both in the minutes and in the written decision provided to the applicant.

If a motion to deny is required, there is a potential problem that already existed under the prior law, and SB 339 now makes it slightly worse. Once the motion to approve fails, the two members who supported it should, of course, acknowledge reality and support a subsequent motion to deny. But if they stubbornly refuse to do so (not difficult to imagine), the board is left at an impasse. The new law, after SB 339, increases the possibility of an impasse, because instead of requiring a 2-1 vote to pass the motion to deny, it will require a 3-0 vote.

It may be a good idea for zoning boards to consult with their legal counsel to see whether they believe a failed motion to approve must be followed by a motion to deny. If they believe this is necessary, they will need to understand that, under the new law, at least three votes will be necessary to pass a motion to deny. Of course, the problem can be avoided by ensuring that there are always five members present and voting—more easily said than done, unfortunately.

Agritourism.  As noted at the beginning of this article, the legislature enacted an agritourism law in 2016. That bill defined agritourism (in RSA 21:34-a), and added a new section, RSA 674:32-d, stating that “[a]gritourism, as defined in RSA 21:34-a, shall not be prohibited on any property where the primary use is for agriculture.” At the same time, it amended RSA 674:32-b to make it clear that an agritourism use may be made subject to local land use board approvals, such as site plan review or special exception.

Because of concerns that some local land use boards either were not heeding the 2016 law or were interpreting “agritourism” too narrowly, SB 412 was introduced this year to try to strengthen the law. As introduced, the bill would have expanded the definition of agritourism, but that effort quickly ran into resistance, and the bill was amended. The amended bill was passed by the legislature and signed by the governor.

The new law, which has already taken effect, does two things. First, it adds a statement in RSA 674:32-b that “[n]o municipality shall adopt an ordinance, bylaw, definition, or policy regarding agritourism activities that conflicts with the definition of agritourism in RSA 21:34-a.” Although this seems like a new restriction on municipal authority, it really is not. Municipalities already were required to allow “agritourism, as defined in RSA 21:34-a,” on any property where the primary use is for agriculture. Even if a municipality has a different definition (or no definition) of “agritourism” in its zoning ordinance, it still must allow agritourism as defined in state law on any agricultural property.

On that point, the new law merely reinforces the existing requirement. If anything, it prohibits a municipality from adopting a broader definition of agritourism, although that presumably was not the intent; and if a municipality wants to permit uses beyond the state definition of agritourism, it would merely need to find a different term for them. As long as it permits agritourism as defined in the statute, it is fine—and again, that is no change from the existing law.

Second, the new law allows the commissioner of agriculture to “adjudicate disputes concerning activities that constitute agritourism pursuant to RSA 21:34-a.” An applicant may petition the commissioner for a declaratory ruling either before filing a land use application with a municipality or after an application is denied. A party aggrieved by the commissioner’s ruling may request reconsideration within 20 days, and may appeal to the New Hampshire Supreme Court after the decision on reconsideration.

This curious provision, assigning a judicial function to an executive branch official, breezed through the legislature with surprising ease. The good news is that the commissioner’s authority is expressly “limited to the question of whether or not a municipality’s ordinance, bylaw, definition, or policy on agritourism conflicts with RSA 21:34-a.” That is a very narrow question.

Some of the bill’s supporters seemed to believe it would enable the commissioner to overturn a local land use board’s determination about whether a proposed use constitutes agritourism and is therefore permitted, but the plain language of the bill refutes that. As the House committee report explained, “The bill does not authorize the commissioner to reverse a local land use board’s decision about whether a particular use is permitted, it merely authorizes the commissioner to determine whether the municipality’s ordinance, bylaw, definition, or policy on agritourism is inconsistent with the state’s definition.” The commissioner’s authority extends only to the definition of agritourism. So long as a municipality employs a definition that is consistent with the state’s, the commissioner has no authority to question a local land use board’s decision that a specific use does or does not satisfy that definition.

Land use boards that are facing controversial agritourism issues should anticipate that some applicants may try to use the new law to attack their decisions. However, they should understand that so long as the board adheres conscientiously to the definition of “agritourism” in RSA 21:34-a (again, regardless of whether the municipality has a different definition in its ordinance), any appeal to the commissioner should fail. At the same time, though, if the ordinance contains a definition of agritourism that differs from the definition in RSA 21:34-a, the planning board should consider proposing an amendment to bring it in line.

Termination of unexercised variances and special exceptionsLet’s return briefly to variances and special exceptions. In 2013 the legislature amended RSA 674:33 to provide that a variance or a special exception “shall be valid if exercised within 2 years from the date of final approval, or as further extended by local ordinance or by the zoning board of adjustment for good cause.” This established a clear rule for the extinguishment of variances and special exceptions granted after the effective date of that amendment (August 19, 2013), but it left unresolved the status of approvals granted before that date that did not come with a stated expiration.

This year’s HB 1533 addressed that issue. It allows a municipality to amend its zoning ordinance to provide for the termination of unexercised variances and special exceptions that were granted before August 19, 2013. Under the new law, once an ordinance is amended to provide for the termination of unexercised approvals, the planning board must post notice of the termination in the city or town hall. The notice must be posted for at least one year, and must state prominently the expiration date of the notice. The notice must state that variances and/or special exceptions granted before August 19, 2013, are scheduled to terminate, but will be valid if exercised within two years of the expiration date of the notice. This still gives anyone who is sitting on an unexercised approval plenty of time (at least three years once the zoning ordinance is amended) to exercise an approval that is already many years old.

Notice of construction of a crematory.  SB 505, which will take effect January 1, 2019, amends RSA 325-A:3 (the statute regulating cremation of human remains) to state that “[a] person intending to construct a crematory shall, upon application for a building permit, provide notice of the intent to all owners of property within 250 feet of the proposed crematory by verified mail.” Note that the new law does not require the municipality to notify property owners—the obligation is solely that of the person constructing the crematory.

It seems that this should be unnecessary, at least in municipalities that have site plan review for development of non-residential uses, because notice by verified mail will have been given to abutters before the application was considered. Testimony in the Senate, however, indicated that the legislation was motivated by a situation in which a town determined that a proposed crematory was an accessory use to an existing funeral home, and no notice or public hearing was required. Whatever the explanation, this is a situation that will arise rarely—and again, the new law imposes the notice obligation solely on the property owner, not on the municipality.

Minutes must indicate who made motions. Although it is not specifically a land use law matter, a change to the Right-to-Know Law will affect land use boards. HB 1347 requires that, beginning January 1, the minutes of all meetings of public bodies record “the names of the members who made or seconded each motion.”

Most land use boards already record in their minutes the names of members who made or seconded motions, but this has never been required by law. It has always been sufficient to state, “On a motion made and seconded, the board voted . . . .” For that matter, there is no legal requirement that a motion be seconded at all (except a motion to enter nonpublic session), unless the board has it in its rules of procedure, or is trying to follow Robert’s Rules. (And even under Robert’s Rules, “motions need not be seconded in a small board or committee.”) The new law does not require that a motion be seconded—but it does require that if a motion is made and seconded, the minutes must state who made and seconded the motion.

Regulation of seeds and fertilizer.  HB 1233 amends the state’s agriculture statutes to add some limits on municipal authority. First, it adds a new section, RSA 433:7-a, that prohibits municipalities from regulating the sale or use of agricultural seeds. This was principally intended to preempt any efforts at the local level—more common in other parts of the country—to prohibit the growing of genetically modified crops. It is questionable whether municipalities would have had this authority even in the absence of preemptive legislation, but this makes it clear.

The new law expressly states that it does not limit municipal authority to adopt and enforce planning and zoning regulations, “including the authority to require native plantings, and combat invasive species listed in accordance with RSA 430:53 as part of a planning board's site plan review or subdivision authority or as a condition of a zoning board of adjustment's granting of a variance or special exception.”

Second, HB 1233 amends RSA 431:4-d to prohibit local regulation of “the type of fertilizer when used for agricultural purposes as defined by RSA 21:34-a.” Thus, a municipality may not adopt an ordinance stating, for example, that farmers may only use organic fertilizers, or may only use, say, wood ash or cow manure.

While a municipality may not regulate the type of fertilizer, it is not preempted from regulating the amount or manner of application. This distinction was intentional—proponents of the legislation recognized that a municipality may have a legitimate interest in regulating how fertilizer is applied, or how much is used, as opposed to trying to dictate specific formulas. The phrase “type of fertilizer” was chosen deliberately to acknowledge that distinction. The House committee report stated, “The intent is to address the concern of local regulations impeding the farmer’s choice when selecting the type of fertilizers to be used on their agricultural land.”

Note also that the preemption applies only to fertilizer used “for agricultural purposes.” It does not prevent a municipality from regulating lawn fertilizer or other non-agricultural uses. Again, this limitation was emphasized in the House committee report:  “This amendment is specific to agricultural lands and would not prevent towns from developing plans that would restrict the type of fertilizer used in certain sensitive areas.”

If you have questions about these or any other new laws, please contact NHMA’s Government Affairs staff at 800-852-3358, or governmentaffairs@nhmunicipal.org.

Attorney Cordell A. Johnston serves as Government Affairs Counsel with the New Hampshire Municipal Association.  He may be reached by phone at 603.224.7447 or at governmentaffairs@nhmunicipal.org.