A Quick Look at a Few New Statutes

By Susan Slack, Esq.

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.

Q. What are the new public hearing requirements for governing body acceptance of unanticipated revenue?
A. Boards of selectmen, boards of library trustees and school boards have authority to accept and expend unanticipated money that becomes available during the fiscal year from a state, federal or other governmental unit or a private source if that authority has been delegated to them by a vote of the legislative body—the town or school district meeting. The delegation is effective until rescinded by a later legislative body vote. Once that delegation is made, the governing body must hold a public hearing before spending unanticipated money received. House Bill 549, now Chapter 188 of the Laws of 2005, amended RSA 31:95-b (towns), RSA 202-A:4-c (town libraries) and RSA 198:20-b (school districts) to apply the public hearing requirement only to unanticipated money in the amount of $5,000 or more. However, the amended statute permits the governing body to establish an amount of less than $5,000 requiring a public hearing prior to expenditure. For amounts of less than $5,000, regardless of whether the governing body holds a public hearing before expenditure, it must post notice of the moneys received in its regular meeting agenda (if it uses a meeting agenda) and must include notice of the moneys received in the minutes of its meeting at which the moneys were discussed. Acceptance of unanticipated money must be made in public session of any regular governing body meeting. HB 549 became effective on August 29, 2005.

Q. What is the new notice requirement for the selectmen’s acquisition or sale of town land or buildings?
A. RSA 41:4-a and 41:4-c permit the town meeting to delegate to the selectmen the authority to acquire and/or sell town land and buildings, with some important exceptions for town conservation land, town forest land and land given to the town for charitable or community purposes. The law requires the selectmen to submit the proposed acquisition or sale to the planning board and conservation commission for review and recommendation and then hold two public hearings at least 10 but not more than 14 days apart. However, if at least 50 voters submit a petition to the selectmen before the selectmen’s final vote on the matter, the proposed acquisition or sale must be inserted as an article in the town meeting warrant. Before the statute was amended, the selectmen’s vote was required to take place no sooner than 10 days nor later than 14 days after the second public hearing. HB 408, Chapter 80 of the Session Laws of 2005, amends RSA 41:14-a to require the selectmen’s vote to take place no sooner than seven days nor later than 14 days after the second public hearing. The amendment became effective on June 7, 2005.

Q. What are the new deadlines for filing rehearing motions with the ZBA and superior court petitions appealing planning board decisions?
A. RSA 677:2 spells out the deadline for filing rehearing requests regarding zoning matters with the ZBA. (The statute also applies to boards of appeal and legislative body appeals.) An application for rehearing must be made within 30 days after a decision. Before it was amended, the statute required calculation of the 30-day clock to be “in calendar days beginning with the date upon which the board voted to approve or disapprove the application[.]" This calculation actually resulted in a 29-day period for filing motions for rehearing. HB 311, Chapter 236 of the Session Laws of 2005, changes the calculation of the 30-day clock, which now begins with the date following the date of the ZBA decision. The amendment ties the calculation of days to RSA 21:35, which is the general “reckoning of days" statute. In addition, the bill amended RSA 677:15, which is the 30-day appeal period for planning board decisions, to apply the same 30-day calculation method now to appeals of planning board decisions to the superior court. Previously, RSA 677:15 established a 30-day appeal period, but did not specify how to calculate the 30 days. The bill became effective August 14, 2005.

Q. What is the new revolving fund option and how are revolving funds established?
A. HB 311, Chapter 79 of the Session Laws of 2005, creates a new statute, RSA 31:95-g, which allows towns to establish revolving funds for recycling activities (as defined in RSA 149-M:4), provision of ambulance services and provision of public safety details (such as police details at construction sites). A revolving fund is created by a vote of the legislative body, which may vote to deposit into the fund all or a portion of the revenues received from fees, charges or other income derived from the activities or services supported by the fund, as well as any other revenues approved for the fund. Revolving fund money accumulates from year to year and is not considered part of the town’s general surplus. All moneys in these revolving funds must be in the custody of the town treasurer, who shall pay out from the fund only upon orders of the governing body or other board so designated by the legislative body. No further approval of the legislative body is required for use of the funds, which makes the revolving fund significantly different from the special revenue fund permitted by RSA 31:95-c. Revolving fund moneys can be spent only for the purposes for which it was established. The legislative body, either at the time it votes to create the fund or at a later time, may vote to limit or restrict use of the revolving fund for certain items or services, the amount of any single expenditure from the fund, the total amount of expenditures from the fund in any one fiscal year, or otherwise limit use of the funds. Money may not be expended from the revolving fund for any item or service for which an appropriation has been specifically rejected by the legislative body during the same year. The new revolving fund statute became effective on August 6, 2005.

Q. What is the new exception to RSA 674:41?
A. This statute prohibits the construction of buildings on lots that do not have frontage on a Class V or better road, or a road shown on a plat that has been approved by the planning board or a Class VI road or a private road where the governing body has so authorized. Paragraph II-a of this statute permits municipal legislative bodies to permit exceptions to these requirements for island lots served exclusively by boats. A two-thirds legislative body vote is required if the planning board does not approve of the exception. Senate Bill 188, Chapter 226 of the Session Laws of 2005, expands the exception permitted by RSA 674:41, II-a to include any lot. The new law eliminates the requirement for a two-thirds legislative body vote when the planning board has not approved the exception, but now requires any exception permitted under paragraph II-a to have the affirmative vote of the legislative body following the zoning amendment adoption procedures outlined in RSA Chapter 675. This amendment became effective on September 3, 2005. Planning boards and selectmen should be careful about proposing exceptions to the requirements of RSA 674:41, whose purpose is to ensure safe access to building lots.