By C. Christine Fillmore, Esq.
A zoning ordinance is a comprehensive system to regulate the timing and manner of development in a municipality. Ordinarily, all land use within a town or city is subject to the local zoning ordinance and land use regulations. However, it may be surprising to learn that the law provides an exception for “governmental uses" of land.
Q. Does a town or city have to follow its own zoning ordinance?
A. No, as long as it is performing a governmental function. The New Hampshire Supreme Court has held that New Hampshire municipalities are not bound by their own zoning ordinances when performing governmental functions unless there is a regulation requiring municipal compliance. McGrath v. City of Manchester, 113 N.H. 355 (1973). In that case, the city wanted to locate a garage in a single-family residential zone for the maintenance of trucks used by the city’s fire and recreation departments. Since the control of fires and the operation and maintenance of public parks and recreation areas are governmental functions, and since nothing in the city’s zoning ordinance specifically required the city to comply with its own zoning regulation, the city was not prevented from placing the garage in a district where it would otherwise be prohibited.
Q. Does a town, city, school district or other governmental unit have to follow the zoning ordinance of any other governmental unit?
A. No, as long as the use is a “governmental use" of land. Under RSA 674:54, if a governmental unit (defined as the state, the state university system, a county, town, city, school district, village district or any of their agents) proposes to use land for governmental purposes, this use is generally exempt from local land use ordinances and regulations. The exemption applies when a governmental unit proposes to use land within its own boundaries as well as when the use will be located within the boundaries of another governmental unit. So, for example, if a school district wished to construct a new school or administrative building in Town A, that school district project would generally be exempt from Town A’s zoning requirements.
Q. What is a “governmental use" of land under this statute?
A. RSA 675:54, I defines “governmental use" as a use, construction or development of land owned or occupied, or proposed to be owned and occupied, by a governmental unit for any public purpose which is statutorily or traditionally governmental in nature. In other words, when a governmental unit wants to use land for governmental functions, it is not subject to local land use regulations.
Examples of “governmental uses" of land include: municipal water treatment plant; town or city hall; police or fire station; town green, park or conservation trails; state agency office; state university building; county sheriff’s office and public school facilities.
Q. What if the town owns property but leases it to a private company to operate a business?
A. Even if the property is owned by a governmental unit, it will still be subject to zoning regulation if it is being used for any purpose that is not “governmental." Thus, a private business located in a town-owned building will probably have to comply with the local zoning ordinance. The exception is intended to apply only when governmental units are carrying out governmental functions.
Q. If governmental uses are not subject to local land use regulation, do they require any formal application or approval from the municipality?
A. Subdivision, site plan and other local land use approvals are not required for governmental uses, but there is a statutory notification and comment process that must be followed. RSA 674:54, II.
The governmental unit proposing the use must give notice to the planning board and the governing body of any proposed governmental use of property within that town or city’s jurisdiction if the proposed use “constitutes a substantial change in use or a substantial new use." For example, if a school district plans to build a school in a certain town, the school board must notify the town’s planning board and board of selectmen or town council. If a town’s conservation commission wants to build a nature center on conservation land it manages, the conservation commission will notify the town’s planning board and board of selectmen or town council.
The notice must be given to the planning board and governing body at least 60 days before construction begins and should include a written explanation of the governmental nature of the proposed use, as well as plans, specifications and a construction schedule.
Either the planning board or the governing body may, but is not required to, conduct a public hearing on the proposed use, which must be held within 30 days after receiving notice of a proposed governmental use. Within 30 days after the public hearing, the planning board or governing body may issue nonbinding written comments on whether or not the proposed project conforms to local land use regulations.
However, while neither the planning board nor the governing body may “veto" the proposed use, the review, public hearing, and comment process can provide valuable feedback and constructive suggestions that the governmental unit can use to improve the project. As is often the case, the best results are achieved when all of the various parties work together in a spirit of cooperation.
Q. How do we know when a proposed use is one involving a “substantial change in use or a substantial new use" that would trigger this notification and comment process?
A. Good question. Unfortunately, the statute does not define that phrase or give examples to guide us, and the New Hampshire Supreme Court has not yet interpreted it.
The purpose of the statute does provide some guidance. RSA 674:54 represents a compromise between, on one hand, the burden of forcing governmental units to go through a full land use approval process for all projects just as private parties must do, and on the other hand, having no local review at all of governmental projects. This statute provides notice and an opportunity for comments on projects that would require formal land use approval but for the fact that they are proposed by governmental units. Therefore, it seems reasonable to assume that if a particular project is one that would ordinarily require a private owner to apply for and obtain any approval under local land use regulations, then the notification and comment process is required when a governmental unit proposes the project for a governmental use.
So, for example, if the construction or renovation of a non-residential building would usually require site plan review in a certain town, the construction of a town hall or the renovation of an existing building for use as a new town hall probably triggers notification and review under RSA 674:54. In contrast, if the construction of a walking trail would not normally require any local permits or approvals if a private party were proposing it in that town, then that proposal probably does not trigger notification and review under RSA 674:54 when the town’s conservation commission proposes it on land it owns or occupies in that town.
Q. Does this statute mean that governmental uses are exempt from state and federal permitting requirements, too?
A. No. It is important to remember that even a governmental project may still require certain state permits such as alteration of terrain or dredge and fill permits, or federal permits such as a stormwater management approval. Those state and federal permitting requirements are not affected by RSA 674:54, which applies only to local land use regulation.