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 | Ex-Officio Members | Fees | Findings of Facts | Filing Amended Plans, Regulations and Ordinances | Joint Meetings and Hearings | Meetings/Minutes | Multiple Board Memberships | 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 | Village Districts | Zoning Board of Adjustment
Alternate Board Members
- What is the Role of Alternate Land Use Board Members?, New Hampshire Town and City, July/August 2007
- 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. See the suggested Rules of Procedure in the Planning Board Handbook and the Zoning Board of Adjustment Handbook.
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
- Look Before You Leap: Understanding Conditional Use Permits - New Hampshire Town and City, January 2006, C. Christine Filmore
All New Hampshire municipalities are familiar with land use regulation. Even the smallest towns face questions of growth, development, compatibility of uses, conservation of resources, and the need for infrastructure. Municipalities have a number of well-worn tools at their disposal to address these questions, including the master plan, subdivision and site plan review, special exceptions, and variances, to name a few. One option that local officials may know less about, however, is the "conditional use permit," sometimes called a special use permit. These permits are useful but can be a bit confusing, and that confusion may lead a municipality astray. What are conditional use permits, exactly, and how is a municipality supposed to use them?
- See the results of the Municipal Land Use Regulation Annual Survey for municipalities with Conditional Use Permits.
- Typically, planning board decisions on zoning matters are appealed to the ZBA. In contrast, innovative land use control decisions by the planning board, although they directly involve zoning matters, are appealable only to the superior court. RSA 676:5, III
- Conditional Use Permits from Innovative Land Use Controls: Reexamining Your Zoning Ordinance - NHMA Law Lecture #3, Fall 2012
- Municipal examples
Conflicts of Interest/"Ex-parte" Contacts
- New Hampshire's Right To Know Law - RSA Chapter 91-A - Cordell Johnston, Esq., NHMA, April 2015 (presented at the spring 2015 OEP Planning and Zoning Conference)
- Also see additional information under the Right to Know Law (RSA 91-A) subject heading on the Laws, Rules, Cases page.
- Attorney General’s Memorandum on New Hampshire’s Right-To-Know Law, RSA Chapter 91-A - March 20, 2015
- Character Matters: Rochester Finds Lessons and Strength in Implementing an Ethics and Compliance Program, New Hampshire Town and City, July-August, 2014, By Daniel Fitzpatrick, Rochester City Manager
On October 18, 2013, the City of Rochester mailed a letter to every one of its vendors announcing its new ethics and compliance program. Earlier in the week, a letter went out to all department heads and employees and notices were posted on bulletin boards throughout city offices. Those letters followed a one-year-long effort by the city to establish a compliance program that outlines a clear-cut code of conduct for all city departments and city employees.
- I Recuse Myself, New Hampshire Town and City, July/August 2013, By C. Christine Fillmore
It is generally understood that a municipal official who has a conflict of interest in a specific situation is not supposed to participate in that matter. What is less understood is how this process works and what is at stake in making that decision.
- Local Officials Making Decisions: Understanding Conflicts of Interest and Disqualifying Bias, New Hampshire Town and City, January 2011, By Kimberly A. Hallquist
"A man cannot serve two masters at the same time, and the public interest must not be jeopardized by the acts of a public official who has a personal financial interest which is, or may be, in conflict with the public interest."
So reasoned the Court in Atherton v. Concord when ruling that no public official may vote on any matter in which he or she has a conflict of interest. The issue of conflict of interest is being raised frequently by citizens who don't want a particular official to act on a matter; by other board members who fear that participation by a particular board member may jeopardize the decision the board makes (or result in the town being sued!); and also by board members themselves who wonder if they should recuse themselves from participation on a matter.
Consideration of these issues before voting on a matter will be time well spent to avoid having a decision of the board overturned because of a disqualified member's participation.
- Plan-link posting and replies on November 20, 2015, regarding a question about email between board members and includes a sample policy for e-mail and other between-meeting communications
- E-Mail and Other Between-Meeting Communications - policy adopted by the Hopkinton ZBA on October 7, 2008
- Ex Parte Communications and Land Use Boards, New Hampshire Town and City, October 2007
- 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
- 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
- See the results of the Municipal Land Use Regulation Annual Survey for municipalities with a Conservation Commission.
- 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.
- Making Defensible & Enforceable Land Use Board Decisions
2014 Lakes Region Planning Commission Municipal Law Lecture, Attorney Daniel Crean, Crean Law Office, Pembroke, NH
This seminar seeks provide general guidance in handling procedural, administrative, and record-keeping requirements that relate to the process of making land use board decisions, including:
- Making the decision on an application;
- Imposing conditions;
- Creating the notice of decision; and
- Enforcing the decision.
- Attaching "Conditions" to Approvals in Land Use Boards, New Hampshire Town and City, November/December 2013
The Planning Board and the Zoning Board of Adjustment are the most common land use boards in New Hampshire, and each has been assigned a set of legal responsibilities and the authority to adjudicate the rights and liabilities of property owners with respect to these legal matters. The boards do not go out to the community to develop their own cases; landowners come to the boards seeking relief in accordance with the requirements of the local Zoning Ordinance.
- Conditions Imposed by Local Land Use Boards Now Subject to Heightened Security, New Hampshire Town and City, September/October 2013
While our articles normally focus on changes made to New Hampshire law by legislative enactment or decisions of the New Hampshire Supreme Court, there are times when the United States Supreme Court renders decisions of such importance that they must be brought to your attention.
- Land Use Decisions: Expert Opinions and the Board's Personal Knowledge, New Hampshire Town and City, November/December 2009
Municipal land use boards have the challenging task of deciding cases based on mixtures of conflicting evidence from the applicants' teams of consultants: opposing abutters and their consultants; the boards' staff and consultants; and the board members' own knowledge of the community and the site. In their decision-making, boards have, for decades, relied heavily on two principles articulated by the New Hampshire Supreme Court in Vannah v. Bedford, 111 N.H. 105, 112 (1971), that appear to endow boards with enormous discretion: (1) a land use board does not have to accept the conclusions of experts and (2) a board may rely on its own knowledge and experience with the community and the vicinity of the application. In other words, a board not only may evaluate the validity of experts' opinions; the board also exercises expertise of its own with respect to local conditions. However, there are limits to the fact-finding discretion of land use boards, as was illustrated recently in the case of Continental Paving, Inc. v. Litchfield , 158 N.H. 570 (2009), in which a zoning board of adjustment (ZBA) decision was overturned when the board unjustifiably rejected the opinions of the applicant's environmental consultants and relied instead on other information.
- Zoning Board of Adjustment Decisions: Quorums, Voting and Fairness, New Hampshire Town and City, February 2008
Fairness is a recurrent issue in zoning board of adjustment proceedings because of the statutory requirement that "the concurring vote of 3 members of the board shall be necessary to reverse any action of the administrative official or to decide in favor of the applicant on any matter on which it is required to pass." RSA 674:33, III. Boards of adjustment consist of five members, RSA 673:3, and a majority of the membership constitutes a quorum. RSA 673:10. Thus a case may be decided by four or even three members. Applicants are understandably reluctant to proceed with a three- or four-person board, especially in controversial cases.
- Rehearings by the Planning Board, New Hampshire Town and City, September 2006
Unlike the zoning board of adjustment, there is no statute that requires any participant in a matter before the planning board to move for a rehearing prior to seeking further review of a decision by appeal. This can lead to confusion when a participant in fact does move the planning board to grant a request for rehearing.
- ZBA Decision Making Process , Paul Sanderson, OEP Spring Planning and Zoning Conference, 2014
- ZBA Notice of Decison - Approval
- ZBA Notice of Decision - Denial
- 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.)
- 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
- Q. If the board of selectmen takes a vote to have the selectmen's representative on the planning board vote a certain way when acting as the ex-officio member of the planning board, must the selectmen's representative vote in the way the selectmen direct?
A. No. The ex-officio member of the planning board is appointed by the selectmen to fill the position but is not "directed" by the board of selectmen. The ex-officio member is a full voting member of the planning board and should participate in whatever way he or she deems appropriate in his or her capacity as a planning board member. (From A Potpourri of Frequently Asked Legal Questions, New Hampshire Town and City, September 2007.)
- An ex-officio member is "any member of a board who holds office by virtue of an official position and who shall exercise all the powers of regular members of a local land use board." RSA 672:5. For instance, planning boards in towns must include one ex-officio member appointed by the board of selectmen. RSA 673:2, II. This means that on a seven-member board, six positions are filled by election or appointment (as the case may be) and the seventh position is always filled by a representative chosen by the board of selectmen. This person may either be a selectman or another administrative official of the town. The ex-officio member is a full, voting, member of the board with all powers of other board members, except that he or she may not serve as the board chairman. RSA 673:9, II. An ex-officio member differs in one other way from other regular members—he or she has a special alternate appointed by the same board that appointed the ex-officio member. When the ex-officio member is absent or disqualified, only the ex-officio alternate member may sit in that person's place. RSA 673:11. (From What is the Role of Alternate Land Use Board Members?, New Hampshire Town and City, July/August 2007)
- Municipal Employee and Municipal Official – Is There a Difference? New Hampshire Town and City, May 2006
Generally, when someone performs work with an expectation of compensation, an employment relationship is created. However, not everyone who "works" for a municipality is an employee. It can be difficult to distinguish between the employees, officials, volunteers and independent contractors who all perform work for a municipality. This article deals with the differences between municipal officials and municipal employees—and there are differences. As a general rule, elected and appointed officials are not employees of the municipality. This is an important distinction to understand because of the significant differences in the way officials and employees are chosen, compensated, supervised and terminated.
- 672:5 Ex Officio Member
- "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 New Hampshire Municipal Association
- I Recuse Myself
It is generally understood that a municipal official who has a conflict of interest in a specific situation is not supposed to participate in that matter. What is less understood is how this process works and what is at stake in making that decision.
- 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.
- The Riggins Rules - Suggested Do's and Don'ts for the Conduct of Public Hearings and the Deportment of Members of Boards, Commissions & Other Bodies (Note: some references may not be compatible with NH law.)
- The Riggins Rules: Selected Excerpts of the Do's and Don'ts for the Conduct of Public Hearings, New Hampshire Town and City, January/February 2015
- How to Develop Discussion Materials for Public Dialogue
Good discussion materials help people explore a complex, public issue from a wide range of views, and find solutions that they can agree to act on and support. Discussion materials don’t have to provide all the answers; instead, they provide a framework and a starting place for a deep, fair discussion where every voice can be heard.
Multiple Board Memberships
- (Also see the Vesting subject heading on the Laws, Rules, Cases page)
- See the 2015 NHMA Law Lecture #1 - Grandfathering: The law of Non-Conforming Uses & Vested Rights by Bernie Waugh, Esquire, Gardner Fulton & Waugh PLLC and Adele Fulton, Esquire, Gardner Fulton & Waugh PLLC - a summary of the protections the courts have given to pre-existing uses and other "vested" rights, including such issues as the time of vesting, the right to change or expand nonconforming uses, what constitutes "grandfathered" subdivision, the "merger" of lots, and the lack of protection for nuisance uses.
- "Grandfathered": It Doesn't Mean that Grandpa Walton Is Sitting on the Porch, Sharon Cuddy Somers, Esq., DTC Lawyers, September 23, 2014
Most people have a general understanding of the concept of "grandfathered". They understand it means that a use of land which does not adhere to the strict letter of the law but which is allowed to continue because it was established before zoning was adopted.
- But, It's Grandfathered! Six Common Myths about Nonconforming Uses, New Hampshire Town and City, May 2008
- Grandfathered - The Law of Nonconforming Uses and Vested Rights (2009 Edition), H. Bernard Waugh, Jr., Gardner Fulton & Waugh, P.L.L.C. from the Fall 2009 OEP Planning and Zoning Conference
- Grandfathered Setbacks - Plan-link posting and replies, March 2010
- Expansion of Non-conforming use - Plan-link posting and replies, April 2015
- When Can a Nonconforming Use be Made Less Nonconforming? - Plan-link posting and replies, April 2015
- Pike Industries, Inc. & a. v. Brian Woodward & a.
Argued: January 13, 2010 Opinion Issued: May 7, 2010
- The Selectmen's Authority 'To Manage the Prudential Affairs of the Town', New Hampshire Town and City, November/December 2011
A fundamental principle in both the United States Constitution and the New Hampshire Constitution is the separation of powers among different branches of government. In designing municipal government, the New Hampshire legislature has evidently kept separation of powers firmly in mind. In towns, powers are apportioned among the town meeting and a long list of boards and individual officials charged with certain duties. Among boards and officials, the board of selectmen, of course, has unique statutory powers to administer the operations of the town, including authority to "manage the prudential affairs of the town." RSA 41:8. In the recent case of Gordon, Trustee v. Rye, No. 2009-836, June 15, 2011 (see Court Update in September 2011 New Hampshire Town and City), the New Hampshire Supreme Court was again called upon to interpret this "ancient statutory phrase," which has been traced to the Provincial statute of 1679.
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)]
- For any 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