"Administrative Official" (also see "Public Officials")
- Traditionally one member of the Board of Selectmen is appointed to the planning board as the ex-officio member but RSA 673:2, II does provide for the appointment of an "administrative official" in place of a selectman:
"In other towns, the planning board shall consist of 5 or 7 members as determined by the local legislative body. The membership shall be filled by one of the following procedures:
(a) 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..."
Given that statute, it appears that the selectmen designee must be an ex-officio member which is defined in RSA 672:5 as:
"...any member 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."
The logical conclusion would be that the appointee must hold office in an official position.
"Administrative official" is also used in RSA 674:33 relative to the powers of the Zoning Board of Adjustment:
"I. The zoning board of adjustment shall have the power to:
(a) Hear and decide appeals if it is alleged there is error in any order, requirement, decision, or determination made by an administrative official in the enforcement of any zoning ordinance adopted pursuant to RSA 674:16; and
(b) Authorize upon appeal in specific cases such variance from the terms of the zoning ordinance as will not be contrary to the public interest, if, owing to special conditions, a literal enforcement of the provisions of the ordinance will result in unnecessary hardship, and so that the spirit of the ordinance shall be observed and substantial justice done."
A similar term, "administrative officer", is defined in RSA676:5, II:
"For the purposes of this section:
(a) The "administrative officer" means any official or board who, in that municipality, has responsibility for issuing permits or certificates under the ordinance, or for enforcing the ordinance, and may include a building inspector, board of selectmen, or other official or board with such responsibility.
(b) A "decision of the administrative officer" includes any decision involving construction, interpretation or application of the terms of the ordinance. It does not include a discretionary decision to commence formal or informal enforcement proceedings, but does include any construction, interpretation or application of the terms of the ordinance which is implicated in such enforcement proceedings."
It is arguable that the terms "administrative official" and "administrative officer" are synonymous at least relative to appeals of decisions involving the interpretation of the zoning ordinance.
For some additional direction, see the excerpt  from New Hampshire Practice, Vol 13 titled "Local Government Law" by Atty. Peter Loughlin. This is a well respected series which is as good a source as anything when it comes to understanding municipal law. In summary of the excerpt, he describes a "public official" as someone who holds an office, who must take an oath and has (1) authority conferred by law; (2) power to exercise some portion of the sovereign functions of government and (3) permanency and continuity.
In conclusion, it is my opinion that the "administrative official" contemplated by the legislature as the selectmen's designee to the planning board must be someone who has been elected or appointed to statutorily created official office of the town, has taken an oath, and whose office has permanency and continuity.
Chris Northrop,
Principal Planner, NHOEP, March 2006 |
