RSA 673:11 is very clear that an alternate land use board member can only be designated to sit when a regular member is either absent or disqualifies herself. Alternates cannot be designated to sit when a land use board position is vacant because of resignation.
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.
You may not like what the statute says, but appointing an alternate to sit for a regular land use board member who has resigned is fraught with peril. RSA 673:11 says:
"Whenever a regular member of a local land use board is absent or whenever a regular member disqualifies himself or herself, the chairperson shall designate an alternate, if one is present, to act in the absent member's place; except that only the alternate designated for the city or town council, board of selectmen, or village district commission member shall serve in place of that member."
Our current Supreme Court is notorious for taking the Legislature at its word, and applying the literal meaning of a statute. In my humble opinion RSA 673:11 says that the chairman of a land use board only has the authority to appoint an alternate when a regular member is absent or disqualifies herself. Indeed, RSA 673:12 says that a vacancy in the membership of a land use board shall only be filled by appointment by the remaining members if an elected board, or by the board of selectmen if an appointed board. There is nothing in either 673:11 or 673:12 that says the chairman of a land use board can temporarily fill a vacant land use board position with an alternate.
(Derived from a Plan-link posting by Steve Buckley, November 21, 2007) |
