HB043 – relative to subdivision and site plan regulation waivers
Chaptered Law 292
Effective September 29, 2009
Planning Boards have always been permitted to waive the provisions of subdivision and site plan regulations for reasons other than just hardship. The board may now grant a waiver for hardship or where the "specific circumstances relative to the [application], or conditions of the land…, indicate that the waiver will properly carry out the spirit and intent of the regulations." The basis of the boards decision must be recorded within its minutes.
HB044 – relative to the use of alternates by local land use boards
Chaptered Law 114
Effective August 21, 2009
Where the statutes had previously been silent, a new paragraph in RSA 673:12 now states that the chairperson of the local land use board may designate one of the board’s alternate members to fill a vacancy within the board, temporarily, until the vacancy may be permanently filled.
HB096 – correcting certain references relating to municipal growth management, and allowing certain replacement structures to qualify for the community revitalization tax relief incentive
Chaptered Law 200
Section 1-2 Effective September 13, 2009
Remainder Effective July 15, 2009
The first two sections of this bill essentially are housekeeping items that bring various sections of state statute in line with the changes made to the growth management statutes in 2008 (2008, HB1260, Chapter Law 360, relative to RSA 674:22 and 23).
The remaining sections of the bill expand upon the existing provisions of RSA 79-E, the Community Revitalization Tax Relief Incentive, to allow replacement structures to also qualify under the existing tax relief provisions. These new provisions would apply to those instances where the qualifying structure is determined to possess no significant historical, cultural, or architectural value and where rehabilitation would not achieve one or more of the public benefits required. Only under these circumstances would the replacement of an underutilized structure be allowed to qualify for tax relief.
HB106 – relative to penalties for land use violations
Chaptered Law 173
Effective September 11, 2009
This bill amends RSA 676:17, I to clarify that each day a land use violation exists it constitute a separate offense. Violations continue to be "subject to a civil penalty of $275 for the first offense, and $550 for subsequent offenses, for each day that such violation is found to continue after the conviction date or after the date on which the violator receives written notice from the municipality that the violator is in violation, whichever is earlier."
HB156 – relative to the procedures of planning boards in third party review and inspection
Chaptered Law 73
Effective August 8, 2009
Planning boards already have the authority (RSA 676:4(g)) to charge "Reasonable fees…to cover its administrative expenses and the cost of special investigative studies, review of documents…" The new provisions add specificity and transparency to the board’s authority to both require third party review and inspection and to require applicants to obtain or pay for third party review.
To do so the bill directly states the board may require the applicant to reimburse the board for "expenses reasonably incurred by obtaining third party review and consultation during the review process" and "…during the construction process." To ensure transparency the board is charge with obtaining detailed invoices from the third party reviewer with descriptions of the services rendered. If requested by the applicant, the board must provide a "reasonably detailed accounting of expenses, or corresponding escrow deductions, with copies of supporting documentation."
Additional safeguards, to protect against unreasonable costs being incurred by the applicant during construction, were also established. As of this bill’s effective date, any third party inspector during the construction process must "promptly" report, to the planning board, any perceived construction defect or deviation from the terms of the approval or approved project plans. Additionally, while not creating anything that was not previously permissible, the bill further elaborated that any person that is aware of a third party reviewers failure to provide such notice may report the reviewer to the joint board for possible peer review or disciplinary action.
HB206 – relative to retention of governmental records under the right-to-know law
Chaptered Law 299
Effective September 29, 2009
This bill follows up on significant revisions to RSA 91-A that occurred during the 2008 legislative session (HB1408 relative to the right-to-know law) and simply cleans up the language relative to the required retention period for electronic governmental records. The one new provision created states that "Governmental records in electronic form kept and maintained beyond the applicable retention or archival period shall remain accessible and available in accordance with RSA 91-A:4, III."
HB210 – relative to public access to minutes of local land use boards
Chaptered Law 49
Effective January 1, 2010
This bill follows up on significant revisions to RSA 91-A that occurred during the 2008 legislative session (HB1408 relative to the right-to-know law) and applies the requirement that minutes be available to the public not more than 5 business days after the meeting rather than within 144 hours of the meeting. This change was carried through and applied to RSA 36:57, II and RSA 676:3, II.
HB290 – authorizing fluvial erosion hazard ordinances
Chaptered Law 181
Effective July 13, 2009
While in theory a municipality could have developed a fluvial erosion hazard ordinance under the innovative land use provisions of RSA 674:21 prior to this bill, this new legislation clearly grants such authority and delineates the procedures for doing so. The newly created RSA 674:56, II states that such ordinances can be adopted under the zoning enabling statues (RSA 674:16 and 17) utilizing the existing zoning adoption procedures (RSA 675). Fluvial erosion hazard ordinances may be adopted as part of an existing zoning ordinance or as a stand alone ordinance, so long as it is administered in the same fashion as the zoning ordinance.
These new provisions were established in conjunction with the creation of a new fluvial erosion program at the Department of Environmental Services (DES) in response to the recent and frequently severe riverine flood events in New Hampshire. Communities that adopt a fluvial erosion hazard zoning ordinance are required to utilize protocols established through DES and seek DES review of the community’s fluvial erosion hazard map.
HB321 – delaying the effective date of 2008 SB 342-FN-LOCAL, relative to workforce housing
Chaptered Law 157
Effective July 8, 2009
Simply put, this bill extends the effective date of 2008’s workforce housing legislation from July 1, 2009 to January 1, 2010. What this means is communities that needed additional time to develop ordinances and regulations to be in compliance with RSAs 674:58 to 61 will be afforded one more town meeting cycle to do so. While town meetings will occur after the new effective date, the posting of new articles must occur before January 1st having the effect of compliance.
OEP has collected a variety of resources and links to additional sources of information regarding affordable and workforce housing.
HB384 – relative to forest management permitting in and near prime wetlands, waivers for work near prime wetlands, and utility maintenance work in any wetland
Chaptered Law 185
Effective September 11, 2009
This bill amends the statutes relative to prime wetlands to facilitate utility maintenance and forest management and to allow waivers for work near prime wetlands. Utility maintenance can be exempted from the permit process provided that the proposed work it to maintain and repair existing utility services within existing rights of way using Best Management Practices and notice is provided to DES. So long as there is no significant loss of net wetland values, forestry management is eligible to request a permit waiver for projects in the forested portion of a prime wetland or its 100-foot buffer.
HB534 – relative to the selection of members of zoning boards of adjustment
Chaptered Law 286
Effective January 1, 2010
Communities have the choice as to whether to create an elected or appointed zoning board of adjustment. Previously, the statutes included provisions for how to establish a board using either organizational structure, but only included provisions for how to switch from a previously established and elected board to an appointed board. New language was drafted through this bill that permits, and sets the process, of switching from an appointed board to elected board.
SB029 – relative to review of developments of regional impact
Chaptered Law 194
Effective September 11, 2009
This bill formalizes the regional planning commissions authority to work with their member communities to develop guidelines to assist the local land use boards within the region to determine what may constitute a development of regional impact. Additionally, it sets forth process requirements for creating such guidelines. By not setting definitive statewide thresholds, the legislated language recognizes that what may be of regional impact in one part of the state may differ in another.
SB093 – relative to the exemption from subsequent local land use regulation where substantial development has begun on an approved plan
Chaptered Law 93
Effective June 12, 2009
Giving credence to the economic downturn, SB 93 temporarily extends the time limits for vesting and exemption from subsequent land use regulation. For subdivisions and site plans approved between January 1, 2007 and July 1, 2009, applicants will be allowed 36 months from approval to achieve "active and substantial development" rather than one year specified for all others in RSA 674:39, I(a). Additionally, subdivisions and site plans approved between July 1, 2005 and July 1, 2009 will be granted an extra two years of exemption from subsequent land use regulation to achieve "substantial completion," giving applicants six years rather than four as required in RSA 674:39, I.
SB107 – relative to the leasing of state-owned real estate on public waters
Chaptered Law 254
Effective January 1, 2010
While not applicable to planning and zoning in New Hampshire, the Office of Energy and Planning (OEP) chairs the Council on Resources and Development (CORD), for whom reviewing surplus land proposals is one of their responsibilities, and thus an OEP bill of interest. SB 107 was introduced to implement the recommendations of the Commission to Study Issues Relative to the Practice of Leasing State-Owned Real Estate on the Shores of Public Waters. The goal of the Commission was to establish a leasing policy for state owned lands on the shores of public waters that provided sound riparian and lacustrine environmental protection in balance with ensuring access to the waters by adjacent residential property owners.
As of the bill’s effective date, leasing land along the shores of public waters is limited only to adjacent residentially developed property owners. Additionally, the adjacent property must have been residentially developed as of January 1, 2011 thus limiting the amount of land that is eligible as surplus in the future. One exception to this limitation was built into this legislation so as to not prohibit potential lease requests that intend to provide a public use or benefit by utilizing the state land. Leases are allowed to be renewed for a five-year term contingent upon full compliance with the lease terms and state and federal permits. The final legislative change was an increase in the lease price of state railroad lands.
SB134 – relative to the comprehensive shoreland protection act
Chaptered Law 218
Effective September 13, 2009
While predominantly a house keeping bill to amend the Comprehensive Shoreland Protection Act based upon lessons learned since the comprehensive overhaul made to the act in 2007 (Chapter Laws 267 and 269) and 2008 (Chapter Law 171), there are a few provisions worth noting. The definition of "Urbanization," the primary delimiter of determining eligibility for the Urbanized Shoreland Exemption was revised to clarify that the exemption is targeted at the central urbanized core of a community, be it the community’s downtown, village center, or central business district. All areas within an urbanized exemption area are to have a minimum of 50 percent impervious cover and the vegetated buffers completely depleted. Also, the definition now permits exclusively residential areas to be included in an exemption request, provided they are of at least 10 dwelling units per acre. Additional evidence is now required as part of the application to demonstrate that the requested exemption area is indeed the community center.
Additionally, the density requirements of RSA 483-B:9, V(e)(2), relative to minimum lots and residential development have been repealed. The rational was that the impervious surface limits already set density based on a scientifically established unit measure. Maintaining limits on the number of dwelling units permitted per lot or frontage requirements would not grant any additional environmental benefits and could instead frustrate individual landowners.
SB147 – relative to...defining "unnecessary hardship" for purposes of zoning variances
Chaptered Law 307
Effective January 1, 2010
This amendment to RSA 674:33, I(b) eliminates the separate "unnecessary hardship" standard for "area" variances, that was established by the New Hampshire supreme court in the case of Boccia v. City of Portsmouth, 155 N.H. 84 (2004), and provides that the unnecessary hardship standard shall be deemed satisfied, in both use and area variance cases, if the applicant meets the standards established in Simplex Technologies v. Town of Newington, 145 N.H. 727 (2001), as those standards have been interpreted by subsequent decisions of the supreme court. If the applicant fails to meet those standards, an unnecessary hardship shall be deemed to exist only if the applicant meets the standards prevailing prior to the Simplex decision, as exemplified by cases such as Governor’s Island Club, Inc. v. Town of Gilford, 124 N.H. 126 (1983).
Now when ZBA’s are considering the hardship criterion for a variance, Literal enforcement of the provisions of the ordinance would result in an unnecessary hardship, they will consider the language used in the following two paragraphs:
A. For purposes of this subparagraph, "unnecessary hardship" means that, owing to special conditions of the property that distinguish it from other properties in the area:
(i) No fair and substantial relationship exists between the general public purposes of the ordinance provision and the specific application of that provision to the property; and
The proposed use is a reasonable one.
B. If the criteria in subparagraph (A) are not established, an unnecessary hardship will be deemed to exist if, and only if, owing to special conditions of the property that distinguish it from other properties in the area, the property cannot be reasonably used in strict conformance with the ordinance, and a variance is therefore necessary to enable a reasonable use of it.
SB168 – establishing the Southeast Watershed Alliance
Chaptered Law 220
Effective July 15, 2009
This bill repeals the estuary alliance for sewage treatment and replaces it with the Southeast Watershed Alliance. The Alliance's goal is to create better municipal, inter-municipal, and regional planning and coordination relative to wastewater and stormwater management, water quality and water supply planning, and land use in New Hampshire’s coastal region. It will establish a regional framework for coastal watershed communities, regional planning commissions, the state, and other stakeholders to collaborate on planning and implementation measures to improve and protect water quality and more effectively address the challenges of meeting clean water standards, particularly with respect to nutrients pollution. Coastal watershed municipalities, the state, and other stakeholders, individually and in collaboration with one another, are encouraged to plan, implement, and invest in wastewater, stormwater, and land use planning and management approaches that protect the water quality, natural hydrology, and habitats of the state's coastal resources and associated waters and that advance the state’s economic growth, resource protection, and planning policy, established in RSA 9- B. Lastly, the Alliance is to seek innovative solutions to reducing pollution and enhancing water quality.
SB189 – relative to decisions of local land use boards
Chaptered Law 266
Effective September 14, 2009
While this may not have a significant impact on most board's existing procedures, it now formalizes what has traditionally been considered good practice. New provisions are added to RSA 676:3 to clarify that local land use boards are to make copies of their written decisions available to applicants and detail any conditions that may have been placed upon an approval. Written decisions and all conditions are now required to be filed with or on plats.
Additionally, further timing requirements are amended to be consistent with the 2008 changes to RSA 91-A; rather than minutes being available within 144 hours, the revised time frame is corrected to within 5 business days. This change has been made within RSA's 677:2; 677:4; and 677:15, I.