The information contained in this article is not intended as legal advice and may no longer be accurate due to changes in the law. Consult NHMA's legal services or your municipal attorney.
What form of notice must be provided when local government proposes to undertake certain forms of official action? The statutes that govern the authority of a municipality or local board to take official action will often, but not always, spell out the methods of notice to be afforded to affected individuals and the public at large. In addition to providing notice as dictated by a statute or regulation, the constitutional mandate of due process will require “notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” Mullane v. Cent. Hanover Bank & Tr. Co., 339 U.S. 306, 314-15 (1950). As stated by New Hampshire Supreme Court in White v. Wolfeboro, 131 N.H. 1, 551 A.2d 514 (1988), municipalities are advised to take every reasonable step to insure that notice is given to all individuals who risk the loss of some interest or right because of a hearing or other municipal action. Local government must be mindful of the U.S. Supreme Court’s admonition in Mullane, “But when notice is a person's due, process which is a mere gesture is not due process.”
Personal notice by certified or verified mail is dictated for municipal actions directly affecting the property and personal interests of individuals. Notice of lien for unpaid real estate taxes must be sent by certified or registered mail to the current owner. RSA 80:60. Two years after that notice of lien a notice of impending tax deed must be provided the current owner by certified mail. RSA 80:77. However, due process did not require a municipality to demonstrate actual receipt of notice that was mailed. In Appeal of City of Concord, 161 N.H. 169, 170 (2010) the city placed the bills for a land use change tax in the mail, and nothing in the record indicated that the mail was returned unclaimed or undeliverable. The city's reliance on the United States Postal Service was reasonably calculated, under all the circumstances, to apprise interested parties of the amount of the land use change tax that was imposed and afford them an opportunity to present their objections by timely appealing for an abatement. So, when the property owner filed an untimely abatement appeal, the NH Supreme Court disagreed with the BTLA that due process dictated actual notice.
Land use boards are required to give personal notice of proposed decisions affecting interests in land, and failure to do so can deny the legal validity of any actions taken. In Hussey v. Barrington, 135 N.H. 227 (1992), the failure to notify abutters to a proposed gravel excavation that required a variance rendered the decision in the property owner’s favor void. Even where personal notice is not required, public notice may also be deficient and render a zoning amendment approved by vote of town meeting void. In Bedford Residents Group v. Bedford, 130 N.H. 632 (1988) the town planning board posted and published notice in a newspaper that it would be considering "amendments to the zoning ordinance and zoning map," and that "copies of . . . the proposed amendments to the zoning ordinance and zoning map . . . are on file for public inspection in the Selectmen's Office." This description fell short of the statutory requirement in RSA 675:7, II that the notice contain “an adequate statement describing the proposal.” In order to satisfy the constructive notice requirements in RSA 675:7, II it was necessary for the notice to state “the location of the affected property, the nature of the proposed amendments or the identity or boundaries of the property.”
The decision in Bedford Residents Group highlights the necessity of strictly conforming to statutory notice requirements. For instance, RSA 675:7 no longer requires notice of zoning amendments (or the adoption of a master plan, subdivision regulation, site plan review regulation and historic district regulation) be published in a paper of general circulation in the municipality if notice is provided on the municipality’s website. However, the option of posting public notice on the municipality’s website does require that the notice “appear prominently on the website's home page, or a link directly to the notice shall appear prominently on the home page.” Thus, that website notice shall stand out from the rest of the surrounding content on the home page and be noticeable.
Under the Right-to-Know Law notice of a public meeting by a public body shall provide the time and place of the meeting, including a nonpublic session, and shall be posted in 2 appropriate places one of which may be the public body's Internet website at least 24 hours, excluding Sundays and legal holidays, prior to the meeting. This establishes the minimum statutory notice for all public hearings and meetings. Furthermore, even though under RSA 91-A a posted agenda is not required for a public meeting it is recommended the subject of the meeting or hearing always be included in the notice. Elsewhere, the specific subject of a public hearing must be included in the public notice and absence of those subject details could jeopardize the validity of an enactment.
For instance, under RSA 41:9-a town meeting can delegate to the select board the ability to adopt and amend municipal fees for the issuance of any license or permit which is part of a regulatory program which has been established by vote of the town. Prior to establishing or amending any such fees, the select board shall hold a public hearing, with notice given at least 7 days prior to the hearing, posted in 2 public places, and by publication in a newspaper of general circulation in the town. Most importantly the newspaper and public notice shall include the proposed schedule of fees that are planned to be adopted by the select board.
Where the procedural requirements for adoption of a municipal ordinance or regulation do not call for public hearing and newspaper publication notice to the public at large, but the adopted ordinance would impose significant penalties, a public hearing and publication process preceding adoption of the ordinance is recommended.
For instance, under RSA 41:11, the select board may adopt rules governing use of public ways, traffic devices and signals and automobile parking controls. This type of rulemaking dictates a more broad-based public notice and participation process. For such ordinances, a town can generally satisfy the due process requirement by posting notice of the proposed highway regulation in two public places in town and publishing notice in a local newspaper approximately one week prior to any hearing. At a minimum, the contents of the notice should indicate where a copy of the proposed full regulation is available (for example, town clerk’s office) and the location and time of the hearing. Prior to the select board’s vote, the town should conduct a hearing at which the public has a meaningful opportunity to comment on the proposal. After the hearing, any vote to enact the ordinance or regulation should be recorded in the minutes. A copy of the minutes should be filed with the town clerk and in any local ordinance compilation or code book. Notice of the adoption of the regulations should also be published in the newspaper and be available to enforcement officials for use in court to prove the regulation’s existence
Suggestions for ensuring proper public notice for municipal action:
- Read the governing statute for the action to be taken and be sure all required elements for the content of the notice to the public have been satisfied.
- Where the official municipal action involves the adoption of rules, regulations or an ordinance, plan to hold at least one public hearing that states the subject, time, date and place of the public hearing.
- If the statute governing the municipal action states a minimum number of days public notice must be provided, both posted and published in a newspaper (or on the town website) the day of posting and/or publication is excluded from the calculation and the day of the event or public hearing is included. RSA 21:35, I.
- It is always appropriate (and sometime required) to record notice of final municipal action with the town clerk. For instance, no master plan, or other land use board regulation adopted under RSA 675:6 shall be legal or have any force and effect until copies of it are certified by a majority of the board or commission and filed with the city clerk, town clerk, or clerk for the county commissioners.
- For municipal ordinances and bylaws that impose civil and legal penalties, notice of adoption should also be published in a newspaper of general circulation in the municipality.