New Requirements, Deadlines for Town Meeting Season

Cordell Johnston, Government Affairs Counsel

The legislature this year enacted a number of new laws that will affect town procedures in the months leading up to town meeting. The changes are generally positive, with one significant exception. All of the changes are effective for the upcoming town meeting season.

Notice of Planning Board Hearings on Zoning Changes

Let’s begin with the bad news. Chapter 161 of the 2014 Laws (HB 1210) makes a significant change, effective immediately, to the notice requirements for hearings on proposed zoning amendments. For the first time, municipalities will be required to notify individual property owners about hearings on zoning amendments, although the new requirements will apply only in limited circumstances.

Under existing law (RSA 675:3), the planning board is required to hold a hearing on any proposed zoning amendment, whether the amendment is proposed by the planning board, by the governing body, or by citizen petition. Notice of the hearing must be published in a paper of general circulation in the municipality and must be posted in at least two public places. (See RSA 675:7.)

The new law leaves the existing notice requirement intact, but adds further requirements in certain circumstances: First, if the proposed amendment would change a boundary of a zoning district, and the change would affect 100 or fewer properties, notice of the hearing must be sent by first-class mail to the owner of each affected property. Second, if the proposed amendment would change the minimum lot sizes or the permitted uses in a zoning district that includes 100 or fewer properties, notice must be sent by first-class mail to the owner of each property in the district.

Changes to district boundaries. Applying these requirements should (we hope) be fairly straightforward. For an amendment that changes a zoning district boundary, which is a relatively infrequent occurrence, it will be necessary to determine how many properties are moved from one district to another. If 100 or fewer properties are affected (regardless of how many properties are in the old or new district(s)), notice to each affected property owner is required, in addition to newspaper publication and posting of public notice. If more than 100 properties are affected, only the newspaper publication and the public posting are required.

Changes to minimum lot sizes or permitted uses. For an amendment that changes minimum lot sizes or permitted uses, the individual notice requirement will apply only if the amendment affects a zoning district with 100 or fewer properties. Note: the test here is not how many properties are affected—which could be impossible to determine—but how many properties are in the affected district. Thus, it should be a simple matter of counting the number of properties in any district that is affected by the amendment.

However, keep in mind that a zoning amendment frequently affects more than one zoning district. In such a case, it will be necessary to consider each district individually. For example, imagine a town that has four zoning districts: District A contains 150 properties, District B contains 90 properties, District C contains 70 properties, and District D contains 60 properties. A proposed zoning amendment would allow the establishment of a hotel in any zoning district; previously, hotels were allowed only in District B. Individual notice would have to be sent by first-class mail to the owners of all properties in Districts C and D, but not in District A or B. This is because, with respect to each of District C and District D, the amendment would “change . . . the permitted uses in a zoning district that includes 100 or fewer properties.” Notice to property owners in Districts A and B is not required, because District A has more than 100 properties, and the amendment does not affect District B.

Property owner may request notice of all hearings. In addition, the new law provides that any person owning property in a municipality may request notice of all public hearings on proposed amendments to the zoning ordinance, “and the municipality shall provide notice, at no cost to the person, electronically or by first class mail.” This applies regardless of the nature of the amendment or the number of properties affected.

Additional requirements, limitations. The new law contains a few other important provisions. Notices sent by mail are to be sent to the address used for mailing local property tax bills, and “a good faith effort and substantial compliance shall satisfy the notice by mail requirements.” Presumably this means that if a notice is not delivered or is mis-delivered despite the municipality’s good-faith efforts, the process will not be deemed invalid.

Any notice that is sent electronically or by first-class mail must “include a statement describing, to the greatest extent practicable and in easily understood language, the proposed changes to the zoning ordinance, the areas affected, and any other information calculated to improve public understanding of the proposal.”

Finally, one positive provision is that the first-class mail notification requirements do not apply to amendments submitted by citizen petition.

Questions, problems. The notice requirements for changes in zoning district boundaries, minimum lot sizes, and permitted uses seem relatively straightforward in theory, but there may be circumstances in which the application of those requirements will be unclear. Time will tell. Other provisions, however, seem certain to cause confusion.

An obvious ambiguity is the provision that “any person owning property in the municipality may request notice of all public hearings on proposed amendments to the zoning ordinance, and the municipality shall provide notice, at no cost to the person, electronically or by first class mail.” The law does not say how the request should be made, to whom it should be addressed, or whether a single request is good for one year, forever, or something in between.

In the absence of any guidance, a request in any form to any local official even remotely responsible for zoning or planning matters—or to any official who could reasonably be perceived as representing the municipality for legal notice purposes, such as a selectman, clerk, or city or town manager or administrator—probably should be considered valid, and should be honored indefinitely.

Also unclear is whether it is the property owner or the municipality that gets to decide whether the notices are sent by mail or electronically. The law simply says the municipality “shall provide notice . . . electronically or by first class mail.” This seems to give the choice to the municipality. Of course, sending notice electronically works only if the municipality is able to obtain an e-mail address or other identifiable electronic notice address for the property owner. Further, if the person insists on notice by first-class mail, it probably is advisable to honor the request. The one bright spot here is that it seems unlikely that many property owners will request notice of all hearings, so these issues may not arise frequently.

The requirement that the proposed amendment be described “to the greatest extent practicable and in easily understood language” seems certain to generate disputes. No doubt the person drafting the description will always believe the language is easily understood; but for someone who is unhappy with a zoning amendment, it would be a simple and obvious strategy to challenge the hearing process on the ground that he or she did not understand the description contained in the notice. Inevitably, a judge will have the unenviable task of determining whether the description was “easily understood.”

Compliance with the new law will not be pleasant, but non-compliance could lead to the invalidation of zoning amendments. Perhaps next year’s legislature can address some of the ambiguities created by the law, but for now, municipalities will have to do their best to follow the law as it exists. Again, the new law is effective immediately, so it must be followed for hearings leading up to the 2015 town meetings.

It could have been worse. All of this may be discouraging, but it could have been much worse. Under the bill as introduced (originally SB 228), a municipality would have been required to send notice by first-class mail to every property owner in a district, regardless of size, whenever any change in permitted uses was proposed. For larger towns and cities, this could have meant sending thousands of notices every time a significant zoning amendment was proposed. The bill that ultimately passed was a hard-fought compromise between NHMA and the bill’s supporters, which made no one happy but is probably manageable. It also is likely, however, that there will be future efforts to impose broader notice requirements.

Procedural Changes for SB 2 Towns

On a more positive note, the legislature made several small changes that should make life a bit easier for official ballot referendum (SB 2) towns. Several of these changes were made in a single bill, chapter 190 (SB 236).

Deadline to deliver budget. Under the Municipal Budget Law, a budget committee is required to deliver its budget to the governing body at least 20 days before the annual meeting. (See RSA 32:16, IV.) The law does not distinguish between SB 2 towns and those with traditional town meeting, so in an SB 2 town, the budget until now had to be delivered to the selectmen at least 20 days before the deliberative session. In some years (such as 2014), it was impossible to comply with this deadline unless the town either held its budget hearing before the deadline for petitioned warrant articles (not a good idea) or held its deliberative session toward the end of the week designated.

Under chapter 190, the deadline for the budget committee (if there is one) in an SB 2 town to deliver its budget to the selectmen is pushed back to the Thursday before the last Monday in January—or February or March, for a town with its second session in April or May. (Note that the new deadline appears in RSA 40:13, not in RSA 32:16.) This will give the budget committee, in most years, nine days to complete the budget and deliver it to the selectmen if it holds its hearing on the last day that petitioned articles may be submitted. Since the selectmen must post the warrant and the budget on the last Monday, they will have a minimum of four days to post the budget from the time they receive it—not a lot of time, but it is only one day less than in a town with traditional town meeting.

Selectmen/budget committee may change recommendations. Another change made by chapter 190 addresses the problem that arises when the warrant states that the governing body and/or the budget committee recommend the operating budget article, but the deliberative session votes a dramatic increase or decrease in the budget. Under the new law, “if the operating budget warrant article is amended at the first session . . . , the governing body and the budget committee, if one exists, may each vote on whether to recommend the amended article, and the recommendation or recommendations shall appear on the ballot for the second session of the meeting.” Note that the budget committee and governing body are not required to make a recommendation on the amended article; it is merely an option.

Deadline for petitioned bond articles. Chapter 190 also establishes—again, for SB 2 towns only—a separate deadline for a petitioned warrant article that proposes a bond governed by RSA 33:8-a. This is because, as one town discovered this year, if a bond article is submitted by petition at the deadline for all petitioned articles (second Tuesday in January—or February or March, as the case may be), it is impossible to publish notice of the required bond hearing in a newspaper seven days before the hearing, because that hearing must be held not later than the following Tuesday. Under the new law, the deadline is the Friday before the second Tuesday. Again, this applies to petitioned bond articles only; the deadline for other petitioned warrant articles remains the second Tuesday.

More time for zoning amendment hearings. One procedural change that is not in chapter 190 has to do with hearings on zoning amendments in SB 2 towns. Until this year, those hearings had to be held on or before the third Tuesday in January (or February, or March, as the case may be). Chapter 7 (HB 1124) deleted that requirement. As a result, hearings in SB 2 towns are governed by the same law as in towns with traditional town meeting—RSA 675:3. Under that statute, an official copy of the proposed amendment must be filed with the town clerk, and thus the planning board’s hearing(s) must be completed, not later than the fifth Tuesday before “the date when action is to be taken”—i.e., the fifth Tuesday before the voting session of town meeting.

In theory, this gives the planning board two more weeks (or three, in some years) to hold hearings. In practice, however, the change is minor. Although the deadline under the zoning statute is the fifth Tuesday before the second session, zoning amendments also must be prepared in time to be included in the warrant, which (in an SB 2 town) must be posted by the last Monday in January. Thus, the net gain for the planning board is only six days (or 13, in some years). Still, the change will help—especially if the planning board now must send hearing notices to individual property owners!

Cordell Johnston is Government Affairs Counsel for the New Hampshire Municipal Association. He may be contacted at 800.852.3358 ext. 3408 or at governmentaffairs@nhmunicipal.org.