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Selected energy and planning legislation from the first session (2011) of the 162nd General Court.

Energy | Planning

Energy

HB0117 - relative to allowing additional weight for vehicles using idle reduction technology in order to promote reduction of fuel use and emissions
Chapter Law 9
Effective January 1, 2012

The Department of Safety requested this bill to encourage greater voluntary adoption of fuel saving improvements to vehicles through additional weight limit incentives. Simply stated, vehicle owners who choose to install auxiliary power or idle reduction technology units are reward by being allowed an additional 400 pounds in weight loads, as calculated by gross, axle, tandem, or bridge formula weight limits.

HB0144 - relative to energy efficiency and clean energy districts
Chapter Law 68
Effective July 15, 2011

In 2010, the state legislature passed HB1554 that enabled municipalities to create Property Assessed Clean Energy (PACE) Districts. RSA 53-F enables property owners to access capital for energy efficiency and renewable energy improvements through a municipal loan program that is secured with a lien on the property. HB144 makes two primary modifications. First, to comply with recent guidance from the Federal Housing and Finance Authority, the bill removed the priority lien position on the property and instead, places PACE loans in a subordinate position. Second, the bill modified the bonding authority that can be used to capitalize PACE programs. General obligation bonds can no longer be used, and instead municipal revenue bonds are permitted. Finally the bill restricts the use of municipal revenue sources for loan loss reserve accounts and revolving loan funds.

HB0381 - relative to authorizing net metering for micro-combined heat and power systems
Chapter Law 168
Effective July 1, 2011

Simply stated, this bill allows for combined heat and power systems to net-meter their excess electricity. In order to be eligible for net-metering, the system must be a new system installed after July 1, 2011 and comply with one of the following two situations: (1) Have a fuel systems efficiency rating greater than or equal to 80% for systems with an electric generating capacity rating between 1-30 kilowatts or (2) have a fuel system efficiency rating greater than or equal to 65% for systems with an electric generating capacity between 30-1000 kilowatts. The bill also puts a cap of no more than 2 megawatts of such total rated generating capacity be connected to the grid from combined heat and power systems.

SB035 - relative to exemption from the definition of utility property for purposes of the utility property tax
Chapter Law 59
Effective July 1, 2011

This bill clarifies the definition of "utility property" for taxing purposes. Specifically it added a few definitions of property that shall not be defined as utility property. These include electric generation, production and supply equipment of eligible customer-generators, property used for retail distribution of fuel, and that portion of a manufacturing establishment that generates/distributes energy for onsite purposes.

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HB0002 - relative to state fees, funds, revenues, and expenditures
Chapter Law 0224

Starting with Section 110 of the bill, HB 2, makes a series of changes to Chapter 4-C, and a handful of other statutes, that govern the Office of Energy and Planning and the services it provides. Some highlights include the repeal of the Water Protection Assistance Program that formerly resided at OEP (RSA 4-C:19-23). However, OEP's general list of duties was amended so that the agency generally advises on water resources and floodplain management opposed to specifically on lakes and rivers management programs.

The other non-housekeeping amendment within Chapter 231 4-C was the repeal of the Housing and Conservation Planning Program, the municipal planning grant established in 2008. Additionally, OEP's list of duties was amended so that the agency generally advises on water resources and floodplain management rather than focusing specifically on the lakes and rivers management programs.

RSA 673:3-a was amended to allow greater flexibility in the methods of local land use board training provided by OEP. Notably, the agency is required to provide training opportunities only once a year opposed to every six-months as has historically been provided. This is giving consideration to the development of the online Citizen Planner series that will cover many of the same topics and sessions provided at the OEP Planning and Zoning Conferences, which will be available as an on demand training source.

The last item directly tied to OEP is the amendment of RSA 675:9 to permit local land use boards to submit digital versions of their plans and regulations or simply notify OEP of their adoption through it's annual survey of land use regulations. This change gives credence to the decreasing demand for a central repository of regulations given the proliferation of regulations now available online.

Other changes of potential interest to the land use and planning community in New Hampshire include:

  • Appropriates federal emergency assistance grants to the department of transportation.
  • Transfers the water quality laboratory services from the department of environmental services to the department of health and human services.
  • Establishes a contingency so that if HB 218 passes, the provision in HB 2 will nullifies the repeal relative to service areas of the New Hampshire rail transit authority (RSA 238-A:5,II and III).

Lastly, much of the content originally found in SB 154, relative to the Comprehensive Shoreland Protection Act, was appended to HB 2. Notable amendments to the CSPA are as follows:

  • Renaming the program to the Shoreland Water Quality Protection Act.
  • Modifying the purpose to specify that the intent is to "Control building sites, placement of structures, and land uses that may potentially damage the public waters."
  • Clarifying numerous definitions.
  • DES is to provide written notification to property owners prior to entering subject parcels of land for oversight or enforcement reasons.
  • Establishing statutory standards for a permit by notification system.
  • DES is now required to return permit fees to applicants that were denied a permit after "relying on the recommendations of the department."
  • DES has a reduced time frame respond to applicants under certain application situations and applicant's time to respond to requests for more information is increased from 60 to 120 days.
  • The specification that only low phosphate, slow release nitrogen fertilizer or limestone be utilized 25 feet beyond the reference line has been removed from statute and replaced with the requirement for "slow or controlled release fertilizer, as defined by rules adopted by department."
  • The former prohibition against removing rocks and stumps within the waterfront buffer is amended to allow for such removal when it will improve runoff control or be replaced with "pervious surfaces, new trees or other woody vegetation."
  • The tree point system was modified so as to include a greater range of points awarded for various tree diameters as well as other changes made to the method of tabulating the total tree score and increased flexibility for property owners to remove or replace existing vegetation.
  • The impervious surfaces requirements have been loosened to allow greater than 30 percent of the lot's area to be impervious with the implementation of a stormwater infiltration system and maintenance of a 50-point tree score in the waterfront buffer.
  • The granting of variances under RSA 483-B has been eliminated and instead consolidated with the existing waiver process.
  • The section on nonconforming structures has been completely rewritten. The new provisions, among other changes, now allow for expansions of existing nonconforming structures so long as the structure does not expand toward the reference line and the property as a whole is rendered more nearly conforming.
  • Lastly, the penalty section has been completely rewritten reducing the penalty from an amount not to exceed $20,000 to $5,000 and also eliminates the provisions that would have considered a violation as a misdemeanor.

HB0027 - relative to the classification of rivers, de minimis impact work in designated rivers, and protected instream flows, and extending the time for septage and sludge land application restrictions
Chapter Law 32
Effective May 9, 2011

This bill permits the commissioner of the Department of Environmental Services to approve certain permanent alterations which have minimal impact to or restore a channel's geomorphic characteristic. It expands the notification requirement for New Hampshire organizations or residents who nominate a river, or segment there of, to include a written notification to riparian landowners. Finally it modified the date when septage and sludge application restrictions will apply from January 1, 2012, to January 1, 2017.

HB0044 - designating segments of the Oyster River as protected rivers
Chapter Law 118
Effective June 2, 2011

HB0149 - designating segments of the Lamprey, North Branch, Pawtuckaway, North, Little, and Piscassic Rivers as protected rivers
Chapter Law 135
Effective June 7, 2011

HB0336 - designating segments of the Mascoma River as protected rivers
Chapter Law 50
Effective May 9, 2011

HB0555 - designating segments of the Lower Exeter/Squamscott Rivers protected rivers
Chapter Law 113
May 31, 2011

2011 was an historic year for rivers designation under RSA 483. Not only were there four separate rivers nominated for designation this year, one of the four, for the first time ever, employed a watershed approach and included the many tributaries within the designated reaches of the river. However, while all rivers currently designated RSA 483, regardless of stream order, are subject to the shoreland protection act, those added under these four bills are exempted from this provision. Therefore, only those sections already under the CSPA's jurisdiction will continue to be regulated by the CSPA. Any stream segments less than 4th order will continue to be excluded from the CSPA.

HB0077 - relative to amendments to warrant articles
Chapter Law 1
Effective February 4, 2011

Simply stated, this bill requires a town that has adopted official ballot voting to retain the substance of the subject matter of a warrant article when it is amended. In other words, a warrant article cannot be amended to entirely eliminate the original subject matter. The one caveat to this is for amendments that change the dollar amount of an appropriation in a warrant article.

HB0109 - relative to residential fire sprinklers
Chapter Law 0203
Effective July 1, 2011

This bill adds a new paragraph to RSA 674:36 that prohibits local planning boards from requiring the installation of a fire suppression sprinkler system in proposed one- or 2-family residences as either a regulatory requirement or a condition of approval for a local permit. However, boards are not prohibited from requiring cisterns, dry hydrants, fire ponds or other sources of water for fire suppression. (See also SB 91, which further limits municipal requirements for residential fire sprinkler systems.)

HB0205 - relative to notification of owners of upstream dams
Chapter Law 164
Effective August 13, 2011

RSA 676:4 was amended in 2009 requiring planning boards to notify upstream dam owners and DES of a proposed development near a stream or river. Subsequently, however, it was discovered that given the sensitive nature of identifying dam locations and owners, compliance was difficult. HB 205 attempts to preserve the original intents of the 2009 legislation while making implementation more feasible.

Now, applications to the planning board for a structure or building site that is within 500 feet of a river, stream, lake or pond, requires notice be sent to DES by first class mail at the same time as abutter notifications are sent out. The Dam Bureau at DES will solely use these notifications to determine whether or nor a proposed plat will impact the hazard classification of a dam. This notification does not give DES abutter status nor does the failure to provide notice to DES constitute a defect of notice.

HB0316 - relative to the restoration of involuntary merger of lots or parcels
Chapter Law 206
Effective July 24, 2011

Following on 2010's SB 406, this bill clarifies the status of previously involuntarily merged lots and state's that they shall, at the request of the owner, be restored to their previously unmerged status. There are, however, two provisions that may limit the ability to be "unmerged." First, the request must be submitted to the town's governing body by December 31, 2016. Second, the current, or any previous owners within the chain of title, cannot have approved or accepted the merged status of the lots. This approval or acceptance ("voluntary merger") includes any overt action or conduct that indicates an owner regarded said lots as merged such as, but not limited to, abandoning a lot line. It may also be assumed that if the owners relied upon the merged status of the lots to gain permit approvals, they accepted the merger, loosing the ability to unmerge. The restoration of the lots to their pre-merger status does not cure a non-conformity with existing local land use ordinances. Additional provisions are included in the statute relative to notice required by municipalities, appeal, and ability to create a less restrictive ordinance.

HB0409 - relative to planning board members
Chapter Law 190
Effective August 13, 2011

In an effort to recognize that volunteers for municipal boards are often difficult to come by, RSA 673:7 was amended to reduce the restriction on 2-or more planning board serving on other boards or commissions. Effective August 13, 2011, boards and commissions where there is not a perceived conflict of interest in multiple planning board members serving together, they may do so. However, the amendments still limit municipalities to only one planning board member serving on the conservation commission, local governing body, or local land use board (as defined in 672:7).

SB0020 - relative to shoreland protection permits
Chapter Law 141
Effective August 6, 2011

Industrial and Commercial redevelopment receiving an Alteration of Terrain Application (RSA 485-A:17) will no longer require separate application for a Shoreland Protection permit. This exclusion was adopted as an amendment to the existing RSA 483-B:5-b,IV exemption for Wetland Permits (RSA 482-A) that would also otherwise require a Shoreland Permit.

SB0021 - relative to exemptions from excavating and drainage permits
Chapter Law 195
Sections 1 & 2 Effective August 13, 2011
Section 3 Effective May 31, 2011

These amendments to RSA 482-A:3,IV(b) adds detail to the list of maintenance activities within specified wetland types that that do not require a permit. Clarity is also added to the type of man made wetland types where no permit is required.

SB0025 - relative to the Connecticut River Valley resource commission
Chapter Law 24
Effective July 1, 2011

This bill amends RSA 227-E and changes the administrative attachment of the Connecticut River Valley resource commission to the Department of Environmental Services. Previously it had been administratively attached to the Office of Energy and Planning.

SB0038 - relative to extensions for wetland and shoreland permits
Chapter Law 143
Effective August 6, 2011

Effective this August, Wetland and Shoreland permits are valid for a period of 5 years and may be granted one extension for another five years provided the applicant meets specified criteria. Stipulations for extensions include the permits have not previously been revoked, the applicant is making progress toward completion, the extension would not violate a conditions of law or rule, and sufficient protections are in place to protect the wetland or shoreland during the extension period.

SB0097 - relative to the application of community revitalization tax relief
Chapter Law 237
Effective Date July 5, 2011

This bill adds onto the definition of qualifying structure under RSA 79-E to allow for buildings that have been destroyed by fire or other act of nature to be eligible for the community revitalization tax relief incentive. Additional provisions are included specifying that the structure must have been destroyed within 15 years prior to the municipality's adoption of the 79-E provisions and other requirements for application of the tax relief provisions to such structures.

SB0104 - relative to certain agricultural operations and certain bonds for excavation and driveways
Chapter Law 85
Effective July 15, 2011

This three-part bill:

  • Requires bonds for restoration of municipal highways after excavations be equitably and reasonably applied to all bonded vehicles using the municipal highway and prohibits the type of commodity carried by a vehicle from being the determining factor in either the requirement of such bond or fixing the dollar amount of such bond.
  • Allows zoning ordinances to be designed to protect agricultural operations.
  • Prohibits planning boards from regulating timber-harvesting operations that are not part of a subdivision application or a development project subject to a site plan review.

SB0107 - relative to establishing a committee to study the effectiveness of criteria for establishing ATV and trail bike trails on state lands
Chapter Law 124
Effective June 2, 2011

This bill establishes a committee to study the effectiveness of criteria for establishing ATV and trail bike trails on state lands.

SB0144 - relative to approvals for site plans and subdivision of land
Chapter Law 215
Effective Date June 27, 2011

This bill follows up on 2009's SB093 - relative to the exemption from subsequent local land use regulation where substantial development has begun on an approved plan which was intended to provide a temporary extension for applicants to achieve "active and substantial development" or "substantial completion." As the time period for this extension provided for in RSA 674:39,V has expired, SB144 repeals this paragraph.

However, recognizing that there may still be a need to allow greater time than the law originally provided for in RSA 674:39, and that state environmental permits are valid for 5 years, the bill changes the standard 4-year exemption to 5-years. Additionally, the time limit to achieve active and substantial development has been permanently extended from 12 months to 24 months.

SB0154 - relative to reforming and renaming the comprehensive shoreland protection act and repealing New Hampshire's regional greenhouse gas initiative cap and trade program for controlling carbon dioxide emissions

This bill was vetoed by the Governor. However, the portion of the bill pertaining to the comprehensive shoreland protection act was inserted into HB2 and became law. See summary above under HB2 regarding changes to the CSPA.


NH Office of Energy and Planning
Governor Hugh J. Gallen State Office Park
Johnson Hall, 3rd Floor  |  107 Pleasant Street  |  Concord, NH 03301
(603) 271-2155  |  fax: (603) 271-2615