SB 414: The biggest planning news of this legislative session is the enactment of SB 414, which reorganizes and amends RSA 674:39 (four-year exemption and vesting of development rights), changes how impact fees are administered, reverses the impact of the Supreme Court’s decision in Simonsen v. Derry, and explicitly authorizes waiver of subdivision regulations. This bill is the product of the SB 157 study committee in 2003, which worked under the chairmanship of Senator Green to address confusion stemming from several court cases over the last few years, including Simonsen (2001), AWL Power v. Rochester (2002), and R.J. Moreau Companies v. Litchfield (2002). The bill was signed by Governor Benson on June 7 and is filed as Chapter 199.
- Vesting. RSA 674:39 has long been a source of confusion, largely because of its convoluted structure. SB 414 clearly breaks down the statute into its operative sections. Additionally, in light of the impact of the AWL Power case, it spells out to planning boards the importance of defining what is meant by the statute’s terms "active and substantial development or building" and "substantial completion."
- If a developer performs "active and substantial development or building" within the first year after approval, then the development is protected against most local regulatory changes (including changes to impact fees) for an additional three years (hence, the "four-year exemption").
- If a developer performs "substantial completion of the improvements" shown on the plat at any time, then the development vests against any future changes to local regulations, with the exception of impact fees, which may be changed at any time (outside of the four-year exemption).
- If a planning board fails to identify what is meant by "active and substantial development or building," then the approved development automatically gets the four-year exemption.
- The planning board is not required to define these terms, but the benefit of doing so is to help avoid the problem faced by the City of Rochester in the AWL Power case.
- Site plans must be recorded in the registry of deeds to gain the vesting benefits of this statute.
- This section of the bill is effective June 7, 2004.
- Impact Fees. SB 414 shifts some of the requirements for impact fees found in RSA 674:21, V. First, impact fees will be required to be assessed at the time of planning board approval, and collected at the time of issuance of certificate of occupancy. This will be the default standard for assessment and collection, although the planning board and the developer are free to establish a different, mutually acceptable arrangement if they desire.
- This section of the bill will become effective on June 1, 2005, allowing municipalities a year to change their impact fee ordinances, if necessary.
- Off-Site Exactions. In its 2001 decision in Simonsen v. Derry, the NH Supreme Court held that a planning board had no power to levy exactions against a development for off-site improvements, unless the municipality had an impact fee ordinance in place. This surprising decision contravened 25 years of case law, and sent planners in a frantic search for alternatives. SB 414 provides a solution for much of the impact of Simonsen. It adds new subparagraph RSA 674:21, V(j), allowing planning boards to require developers to pay for off-site impacts related to highways, drainage, water, and sewer, even without an impact fee ordinance. All other impacts will still require a properly adopted impact fee ordinance.
- This section of the bill is effective June 7, 2004.
- Subdivision Regulation Waiver. Although the authority of planning boards to waive subdivision regulations has been recognized for years by the NH Supreme Court, this power was never formally recognized in statute, as has been the situation with site plan regulations. By providing this statutory authority, SB 414 codifies the Court’s 1991 decision in Frisella v. Farmington.
- This section of the bill is effective June 7, 2004
HB 761. This is another important piece of legislation, dealing with innovative land use controls and pre-application review by planning boards. HB 761 clarifies that municipalities may require innovative land use controls. Some planning boards have questioned the statutory authority to mandate cluster subdivisions, but now there should be no doubt about that power. The bill also changes RSA 676:4, by enabling municipalities to empower their planning boards to mandate pre-application review of subdivisions. A possible technical correction in the future will be to extend this authority to apply to site plans. Effective July 6, 2004.
SB 359. With the passage of this bill, RSA 674:41, the statute that addresses the problem of building on Class VI highways and private roads just got a bit more complex. This new law allows for construction on "certain pre-existing streets" that were approved by some local authority prior to the planning board receiving subdivision platting authority. The bill was apparently a response to a narrow issue in a single town, but it may have substantially broader implications. Effective July 23, 2004.
HB 1148. Defines "wetlands" for the purposes of RSA 482-A, and requires municipalities to use that definition when including the term in local land use ordinances and regulations—this will be a new statutory section, RSA 674:55. The bill also provides an amendment to RSA 215-A:15, by adding a paragraph that specifically exempts snow-traveling vehicles from local regulation. This may be seen as the first legislative response to the NH Supreme Court’s April 2004 decision in Lyndeborough v. Boisvert, in which the Court found that municipalities were not preempted by RSA 215-A from regulating OHRV’s. The statutory wetlands definition is effective immediately; the local portion is effective January 1, 2005. The preemption of local regulation of snow-traveling vehicles is effective immediately.
HB 803. Although originally touted as the "downtown development bill," the original bill language was removed and replaced with language that liberalizes the requirements relating to the establishment and expansion of tax increment financing districts, allowing greater use of TIFs by smaller communities. Effective July 31, 2004.
HB 713. Allows for the doubling of fines for repeat zoning violations, from $275/violation to $550/violation. Effective January 1, 2005.
And finally, SB 534 , which removes the Coastal and Estuaries programs from the NH Office of Energy and Planning (OEP) and assigns them to DES. The bill also formally adopts the OEP name (get used to it, folks), makes changes to the LCIP (not LCHIP!) fund, and removes OEP from the congregate/public moorings permitting process. Effective immediately.
Some bills that didn’t survive the legislative process: HB 503 (septic permitting limits—Governor’s veto sustained by the Senate); HB 1283 and HB 1284 (wetlands); HB 1357 (cluster zoning); HB 1359 (notice for zoning rehearings); HB 1375 (conservation commission donations to land trusts); and HB 1392 (preapplication review—the opposite of HB 761).
You can search for the text of any of these bills on the Legislature’s Web site at http://www.gencourt.state.nh.us/. If you have any questions about New Hampshire legislative activities, call (603) 271-2155.