Administrative Gloss | Alternate Board Members | Application Acceptance/Incomplete Applications | City/Town Officials Directory | Conditional Use Permits | Conflicts of Interest/"Ex-parte" Contacts | Conservation Commissions | Decisions | Elected Land Use Boards | Equitable Waiver of Dimensional Requirement | Fees, Findings of Facts | Filing Amended Plans, Regulations and Ordinances | Joint Meetings and Hearings | Meetings | Nonconforming Uses | Planning Board | Public Officials | Prudential Affairs | Residency Requirements for Elected or Appointed Positions | Rules of Procedure | Special Exceptions | Staff, Finances | Town Manager/Town Administrator/Town Council | Variances | Village Districts | Zoning Board of Adjustment
Alternate Board Members
- What is the Role of Alternate Land Use Board Members?, July/August 2007, New Hampshire Town and City
- Filling vacant seats and those of absent or recused members
RSA 673:11 allows an alternate land use board member to be designated to sit when a regular member is either absent or disqualified (recused).
RSA 673:12 was amended in 2009 adding subsection III allowing the chairperson of a local land use board to temporarily designate an alternate member to fill a vacant seat until it can be filled in the manner set forth in paragraph I or II. If the vacancy is for an ex officio member, the chairperson may only designate the person who has been appointed to serve as the alternate for the ex officio member.
Where multiple recusals deprive a land use board of a quorum, the Town can employ RSA 43:7 and the Selectmen can appoint persons to sit who had previously held the same position in the past. In the case of a land use board being depleted of all members and alternates because of recusal, the Town can apply to the Superior Court pursuant to RSA 43:8 to have a substitute board appointed for that particular matter. Persons so appointed must have held the same position in the past.
- SB448 (Chapter Law 270:2, 2010) amending RSA 676:1 to specify when and how an alternate may participate in meetings of the land use board.
Under the existing statutes, many municipalities questioned whether alternates are permitted to sit at the table or participate in meetings. Practices and legal opinions varied from community to community. Additionally, many felt for alternates to be best prepared to serve when called-up or to fill future vacancies they needed to participate in meetings on a regular basis. This bill allows alternate members of land use boards to participate in meetings of the board as a non-voting member. Boards are required to establish procedural rules to set the details of how and when the alternate may participate. For example, rules may specify that alternates participate during master plan or other work sessions; during hearings but not board deliberations that lead to a vote; etc. The level of participation is up to the board as contained in their rules. The following are suggested examples from OEP subject to modification by local land use boards.
Application Acceptance/Incomplete Applications
City/Town Officials Directory
- NH Department of Transportation City & Town Officials Directory located in the Bureau of Planning and Community Assistance Document Library.
Conditional Use Permits
Conflicts of Interest/"Ex-parte" Contacts
- Ex Parte Communications and Land Use Boards, October 2007, LGC Legal Q&A
- Disqualification and "Ex-parte" Contacts , Benjamin Frost, Esq., and Clayton Mitchell, Esq., Law Lecture #3: Getting the Facts Straight, NHMA Law Lecture Series, Fall 1999
- Local Officials Making Decisions: Understanding Conflicts of Interest and Disqualifying Bias, January 2011, New Hampshire Town and City
- 2005 Municipal Law Lecture #2: Ethics for Land Use Board Members
Cordell A. Johnston, Esq., Government Affairs Attorney, New Hampshire Local Government Center Jae Whitelaw, Esq., Mitchell & Bates, PA
Land use board members must be aware of potential conflicts of interest during the application process. This lecture reviews case law and real life scenarios that will help municipal officials avoid the pitfalls of prejudgment, bias, ex parte contacts and other potential ethical difficulties in the regulation of land use.
- NH Association of Conservation Commissions
- Chapter 36-A: Conservation Commissions
- Status of Conservation Commissions , as self-reported by municipalities responding to the annual OEP survey of municipal information.
- SB 381 relative to conservation commissions. Chaptered Law 0317 (2008)
This bill allows conservation commissions to contribute money from the conservation fund to certain qualified organizations for the purchase of property interests to be held by the organization when such purchase carries out the purposes for which conservation commissions are established. This bill also authorizes conservation commissions to purchase interests in land outside the boundaries of the municipality.
- Land Use Decisions: Expert Opinions and the Board's Personal Knowledge, November/December 2009, New Hampshire Town and City
- Rehearings by the Planning Board - LGC Legal Q & A, September 2006
- The Planning Board’s Roles & Decision Making Process , David R. Connell, Legal Services Counsel, NHMA (f.k.a.Local Government Center)
- The ZBA Decision Making Process , David R. Connell, Legal Services Counsel, NHMA (f.k.a.Local Government Center)
- 74 Cox Street, LLC & a. v. City of Nashua& a.
Argued: June 7, 2007 Opinion Issued: September 21, 2007
(Land use boards can reconsider their own decisions, failed motion for rehearing [lack of a second] constitutes denial.)
- Summary of the case (Ben Frost Plan-link posting 9/22/2007)
- Supplement to the NHMA Law Lecture #3, Fall 2007, Legal Issues for Land Use Board Members
- Judy Atwater & a. v. Town of Plainfield
Argued: January 20, 2010 Opinion Issued: July 20, 2010
- Janet and Peter Saunders v. Town of Kingston
Argued: January 13, 2010 Opinion Issued: July 23, 2010
Elected Land Use Boards
- Planning Board
- Zoning Board of Adjustment
Equitable Waiver of Dimensional Requirement
- "The planning board may, as part of its site plan review regulations, require an applicant to pay all costs for notification of abutters and may provide for the assessment of reasonable fees to cover the board's administrative expenses and costs of special investigation and the review of documents and other matters which may be required by particular applications." [RSA 674:44,V]
- "A schedule of fees, or a provision authorizing the governing body to establish fees, to be charged for building permits, inspections, and for any certificate of occupancy enacted pursuant to paragraph III." [RSA 674:51,III,(d)]
- "Reasonable fees in addition to fees for notice under subparagraph (d) may be imposed by the board to cover its administrative expenses and costs of special investigative studies, review of documents and other matters which may be required by particular applications." [RSA 676:4(I)(g)]
- "The board of adjustment may impose reasonable fees to cover its administrative expenses and costs of special investigative studies, review of documents, and other matters which may be required by particular appeals or applications." [RSA 676:5,IV]
Findings of Facts
Filing Amended Plans, Regulations and Ordinances
Joint Meetings and Hearings
- Legal Q & A articles from New Hampshire Town and City published by the Local Government Center
- The Inside Scoop on Nonpublic Sessions
New Hampshire's Right to Know Law, RSA Chapter 91-A, is a critical statute for local officials and employees to understand. One of the more difficult areas to navigate is nonpublic sessions. Recently, we have received an incredible number of legal inquiries about this subject. Here are some of the most frequently-asked questions about nonpublic sessions.
- Parliamentary Procedure in Local Government
As a city manager with more than thirty years of service, city council meetings are a way of life. In the background of all governing body meetings are the rules of parliamentary procedure. Until I began a formal study of parliamentary procedure, I was in the dark about its origins, fundamental principles, and overall benefits. This article will review the history of parliamentary procedure, its basic principles, and how using it correctly will benefit both governing body members and the public.
- Of Meeting Minutes and Machines
Minutes must be created to record the result of meetings of public bodies in order to comply with the Right to Know Law. However, when recording equipment is used, the issues become more complex, and other statutes become involved. In the end, some decisions need to be made by public bodies about how to record meetings, whether the recordings should be preserved and, if so, in what format. The answers are not always straightforward.
- Public Meetings and Freedom of Speech: When Do Citizens Have a Right to Speak?
In the months leading up to town meeting, public participation in local government reaches an annual peak. Citizens attend meetings of the board of selectmen, school board, budget committee and planning board and speak at public hearings on proposed budgets, bond issues and zoning ordinances. It all culminates in the discussions, deliberations and votes at the annual meetings. Participation is, of course, encouraged because the vitality of local government is measured by the level of public interest and involvement. Many citizens feel empowered to make their views known frequently throughout the year. Yet, there is a good deal of misunderstanding among public officials and citizens alike concerning the rights of the public to speak at public meetings.
- Meeting Minutes 101
Boards often wrestle with taking meeting minutes - worrying that too much information will get them in trouble if an issue goes to court. This fear is balanced against the desire of board members to make sure their minutes are informative and helpful to citizens and to the board itself. Does the law require that meeting minutes contain certain information? Is it better to be brief and vague when preparing the minutes? Should meetings be tape recorded so that greater detail can be put into the minutes? If the meeting is tape recorded, does that mean the tape is available to members of the public?
- Controlling meetings Plan-link subject, December 2004
- Public Meetings and Hearings , University of Vermont Center for Rural Studies, August 2004
- Draft meeting minutes are subject to disclosure but towns are not obligated to retain notes, tapes or other draft materials used to prepare minutes after final minutes have been approved, prepared and filed. See Part V, Section K. 3. of the July 15, 2009, Attorney General's Office Memorandum on New Hampshire's Right-to-Know law, RSA Chapter 91-A .
- Thomas Ettinger & a. v. Town of Madison Planning Board
Argued: October 13, 2011 Opinion Issued: December 8, 2011
"Consultations with legal counsel" are not considered "meetings" under RSA Chapter 91-A, New Hampshire's Right to Know Law. RSA 91-A:2, I(b). This is significant because gatherings which are not "public meetings" do not have to follow the ordinary requirements for notice, minutes and public access. This case explores for the first time the boundaries of what a "consultation with legal counsel" is.
- Law lectures presented by the Local Government Center
- "Grandfathered" The Law of Nonconforming Uses and Vested Rights - A Guide for New Hampshire Officials by H. Bernard Waugh, Jr., Esq. - Fall, 1989
- "Grandfathered" The Law of Nonconforming Uses and Vested Rights by H. Bernard Waugh, Jr., Esq. - Fall, 1994
- Vested Property Rights and Changes in Use, John J. Ratigan, Esq., Douglass P. Hill, Esq., Clay Mitchell, Esq. - Fall 1997
- Nonconforming Uses and Vested Rights, H. Bernard Waugh, Jr., Esq. - Fall 2002
- But, It's Grandfathered! Six Common Myths about Nonconforming Uses, May 2008, New Hampshire Town and City
- Grandfathered - The Law of Nonconforming Uses and Vested Rights (2009 Ed .), H. Bernard Waugh, Jr., Gardner Fulton & Waugh, P.L.L.C. from the Fall 2009 OEP Planning and Zoning Conference
- Plan-link question and replies on grandfathered setbacks posted on March 31, 2010
- Pike Industries, Inc. & a. v. Brian Woodward & a.
Argued: January 13, 2010 Opinion Issued: May 7, 2010
Subjective intent of landowner not relevant when zoning ordinance defines abandonment of a nonconforming use as discontinuance for more than a year. No abandonment when a business owner keeps its plant ready to produce and deliver a product, even if such products are not actually produced. (LGC summary)
Residency Requirements for Elected or Appointed Positions
- Appointed planning board: "The selectmen shall designate one selectman or administrative official of the town as an ex officio member and appoint 4 or 6 other persons who are residents of the town, as appropriate" [673:2, II (a)]
- Appointed zoning board of adjustment: "Each member of the board shall be a resident of the municipality in order to be appointed or elected." [673:3, I]
- For all elected offices:
“Unless otherwise provided by law, no person shall hold an elective town office who does not have his domicile within the town.” [669:6];
“No person is eligible to hold any municipal office, elective or appointive, who is not a citizen of the United States.” [91:2];
“To hold any elective office in the state, a person must be a citizen of the United States, either by birth or by naturalization.” [655:1]; and
“To hold any elective office in the state, a person must have a domicile in the state. Registration to vote or voting in another state during the relevant time period shall create a presumption that a person does not have a domicile in this state.” [655:2]
Rules of Procedure
Town Manager/Town Administrator/Town Council
Zoning Board of Adjustment