THE PLANNING BOARD LOCAL LAND USE REGULATIONS David G. Scott, Director of Policy Planning and Administration New Hampshire Office of State Planning November, 1994 A. ZONING ORDINANCE 1. Definition Zoning is the process of regulating use of land, and the buildings and structures that may be permitted in a municipality. The zoning ordinance is a legal document that establishes regulations based on the recommendations contained in the master plan. 2. Purpose When zoning ordinances were first put into place, the primary purpose was to prevent one property owner from creating a nuisance or causing harm to neighboring property owners. Zoning is now recognized, in addition, as a positive tool for encouraging certain development and creating an attractive community. Zoning can help to preserve the existing characteristics of a community by creating separate districts for incompatible uses. Rural and low density neighborhoods can be maintained by providing areas for higher density residential development or commercial and industrial uses where the physical conditions of the land and the availability of municipal services permit more intensive development. Similarly, the downtown business center can be protected from encroachments that would destroy its traditional design. Every zoning ordinance shall be made with reasonable consideration to, among other things, the character of the area involved and its peculiar suitability for particular used, as well as with a view to conserving the value of buildings and encouraging the most appropriate use of land throughout the municipality. RSA 674:17,II 3. Relationship to the Master Plan It is important to distinguish between "planning" and "zoning" since these terms are often used interchangeably. Planning involves taking an inventory of the community's resources, analyzing the data gathered, projecting future growth and development alternatives, and preparing a blueprint for the future. Zoning is one method of implementing that plan. It is based on the plan and helps put the plan into effect. By state statute, RSA 674:18, a zoning ordinance can be adopted by the local legislative body (town meeting or city/town)only after the planning board has adopted at least the first two sections of the master plan under RSA 674:2. I. General Statement of Objectives which articulated the the municipality's goal and policies and should contain the guidelines and directions to be followed as the master plan is carried to completion. II. Land Use Section which delineates areas with the capability to be utilized for present and future intensive land uses, such as residential, commercial, industrial, institutional, and non- intensive uses, such as parks, recreation, conservation, agricultural, forests, and open spaces. 4. How Does Zoning Work? A zoning ordinance can be as simple or as complex as the needs and wishes of the community require and should reflect the opinions of the local residents that have been gathered by a community attitude survey conducted as an initial part of the master planning process. A zoning ordinance can regulate: * the use of land, buildings, and structures: * the height and size of buildings and structures; * the size and coverage of building lots; * the density of population; and * address such other health and safety, and general welfare issues as transportation, solid waste facilities, water, sewerage, schools, and parks. a) Districts It does this, in most instances, by dividing the municipality into districts, with different land use requirements within each district. The regulations can vary from one district to another, but must be uniform for each type of use within a district. The number of districts established by a zoning ordinance depends on the complexity of the municipality. Some very small towns begin by zoning the entire area as a residential/agricultural district. Any nonresidential uses are permitted as a special exception if certain clearly defined conditions are met. More frequently, three separate zones are laid out to provide for residential, commercial, and industrial development. Some ordinances provide for cumulative zoning, allowing any use the permitted in the most restrictive district to be placed in less restrictive districts, i.e., residential development in the commercial district and both of those uses permitted in the industrial zone. Others restrict a use to the specific zone and do not permit any residential buildings within a commercial or industrial district. 5. Elements of the Ordinance A clearly written zoning ordinance can go a long way to make the process and the requirements easier for everyone to understand and to follow. Some of the components that should be included are: * Table of Contents and Index to simplify finding sections of the ordinance. * Definitions to avoid confusion and misinterpretation. Abutter, subdivision, minor subdivision, manufactured housing, and multi-family dwelling units are defined in statutes. Other terms such as lot, frontage, dwelling unit, and accessory use should be defined and used consistently in each local land use regulation. Clarity of definitions can be a significant ally to the Zoning Administrator and the Zoning Board of Adjustment should appeals be forthcoming. * Districts clearly described in the text and accurately mapped for visual identification, with boundary lines located at easily identifiable landmarks. * Permitted uses and accessory uses listed for each district. * Lot sizes, frontage requirements, setbacks, and other standards designated by district. * Special exceptions, if any are to be permitted, identified by district. Specific conditions set for approval of the exception. * Tables to display uses, special exceptions, lot sizes, and other requirements by district. One element that is frequently overlooked in writing the zoning ordinance is a statement of purpose for each district to make clear the intent of the voters in creating that particular district. By stating that the purpose of the downtown business district is to retain a central shopping are for the convenience of local residents, the ordinance can restrict other uses that might replace retail businesses and disperse these establishments to outlying parts of the community. Although the zoning ordinance should be as simple as possible, one with too little detail can quickly become ineffective and controv- ersial by leaving too many issues open to interpretation. For example, if conditions under which a special exception could be granted are not clearly spelled out in the ordinance, the board of adjustment will have difficulty understanding and carrying out the intent of the voters. 6. Adoption and Amendment The planning board can prepare a zoning ordinance only after it has adopted the goals and objectives and the land use sections of a master plan as described in Session II. Enactment of a zoning ordinance is governed by state law: a) RSA 675:2 allows city and town councils to decide on the process. A public hearing must be held as part of the process. b) RSA 675:3 sets the procedures for towns with town meetings. * After the first public hearing, an additional hearing must be held, at least 14 days later, if any substantive changes have been made. * The planning board must vote on the final form of the ordinance, which is presented to the voters by ballot at an annual or special town meeting. * The ordinance must be approved by a majority of the voters. If the municipality is considering a first zoning ordinance, a series of open discussion meetings is strongly recommended so residents have ample opportunity to help shape the ordinance. Even the most carefully designed and written ordinance will need changes over time. As the community grows and develops, it may be necessary to expand the area allocated for commercial uses or provide areas for a wider variety of housing types. Regular review of the master plan will indicate the need for some amendments. Other kinds of problems may develop as the zoning ordinance is implemented. Regular meetings between the planning board and the board of adjustment is recommended as an excellent way to identify areas that should be considered for amendment. The Board of Selectmen, who have the enforcement function, should also be part of such meetings. * An excessive number of applications for special excep- tions may indicate uncertainty whether the ordinance allows a particular exception. * An ordinance that permits an "accessory building" without a clear definition of the term may leave building inspec- tor uncertain as to whether a permit may be issued. Amendments to the zoning ordinance are most commonly proposed by the planning board, but the board of selectman may suggest amendments as well. Under RSA 675:4 a petition signed by 25 or more voters may also present an amendment for consideration. The planning board must hold a public hearing on any of the amendments, placing a petition amendment or one from the selectmen on the ballot as presented, with a notation of plan- ning board approval or disapproval. The planning board may change its own amendments to reflect concerns raised at the public hearings, but must hold additional hearings until the final hearing presents the wording that will appear on the ballot. RSA 675:5 provides a mechanism whereby the owners of 20 percent of the land that would be affected by a zoning amendment may file a pretest petition, which then requires the amendment to be app- roved by 2/3 of the voters rather than a majority. An ordinance that has been amended many times should be given a complete review and rewriting eventually to keep the format logical and easy to follow. 7. Administration Administration of a zoning ordinance is not the responsibility of the planning board, although the provisions and requirements of the ordinance must be referenced in any planning board review of a subdivision or site plan application. Administration is usually carried out on a day-to-day basis by the building inspector through the building permit process or by a code enforcement officer. Every zoning ordinance must include the establishment of a zoning board of adjustment that serves as a local appeal board to provide for interpretation of the ordinance and a certain amount of flexibility. The board of adjustment hears appeals from admin- istrative decisions and requests for variances and special excep- tions as provided in state law and in the local ordinance. Regular discussions between the planning board and the board of adjustment can help to identify any administrative or technical problems with the ordinance that need to be resolved. RSA 676:2 provides for joint meetings and hearings that can help to coordinate actions involving both boards. The local governing body - selectmen, town/city council - has the overall responsibility for enforcement of the ordinance. B. SUBDIVISION REGULATIONS While a zoning ordinance is an important tool for effective local land use regulation, it cannot stand alone as the only means of assuring good design and effective planning. Subdivision regulations deal with such issues as layout of lots and streets, adequate drainage, provisions of water and sewer services and how one development relates to the overall scheme of of municipal design. 1. Definition The process of dividing a parcel or tract of land into smaller lots is known as "subdivision". The legal definition of subdiv- sion in RSA 672:14, includes dividing a parcel of land for "sale, rent, lease, condominium conveyance, or building development" whether the actual division or sale of the lots takes place at the time of application or will occur in the future. Three steps must be taken before a planning board can approve or disapprove a plan for subdivision within the municipality: 1. Authority must be granted to the board by the municipality. 2. City or town clerk must file notice of the authorization with the county register of deeds. 3. Planning board must adopt subdivision regulations. Once these steps have been taken, no land within a subdivision can be sold or transferred before a plat of the subdivision has been approved by the planning board and a copy filed in the registry of deeds. 2. Purpose Review of applications for the subdivision of land helps to ensure that the interests of the community and its residents - present and future - are given full consideration as parcels of land are divided and developed. The planning board must balance the rights of the developer to use his land with the need to protect the community against undue expenses both initially and from unanticipated future expend- itures. Improvements such as streets, water lines, sewer systems, and drainage facilities are permanent and often become the property and responsibility of the local government. To ensure careful review of any application, the procedures in RSA 676:4 includes three separate steps: Preliminary Conceptual Consultation - informal discussion between the board and an applicant concerning the type of development recommended by the master plan and allowed by local regulations. Design Review - Discussions involving more specific design engineering details. Abutters must be notified, but no approvals may be given and neither side is bound by any statements made. Completed Application - Contains all the information required by local regulations. Acceptance of the applica- tion begins the 90 day review period. Although the preapplication steps can save time and money by identifying potential problems before plans and studies have been prepared, state law does not allow the planning board to require them. An applicant can forego the preliminary phases and begin the review process by filing a completed application and starting the 90 day clock. 3. Relationship to the Master Plan The master plan should be consulted during the subdivision review process. The recommendations and the future land use sections will help to determine if the proposal is appropriate for the area involved. The technical data should indicate the adequacy of municipal services - roads, water or sewer facilities, schools, fire and police protection - to handle increased population and help the planning board determine if any special studies should be required as part of the completed application. The master plan is especially important for the preliminary con- ceptual review, which must be limited to a general discussion of development in relationship to the goals and objectives of the master plan. At this early stage, the planning board could clearly state that an industrial development proposed for an area of historic importance would not be appropriate. An application that proposed a multi-unit residential development for an undevel- oped part of town could be discouraged if the master plan stress- ed utilization of existing municipal services and the capital improvements plan set a schedule for future expansion of those services. The design review phase can make use of specific sections of the master plan during discussion of design and en- gineering details. Premature Subdivision The master plan can form the basis for rejection of a sub- division that is considered "premature or scattered" as provided in RSA 674:36,II(a). A subdivision proposed for an outlying area can create problems with providing municipal fire, police, and highway service, and lead to loss of open space or agricultural land targeted for preservation by the master plan. The developer could be advised, at the preliminary discussion phase, that the plan could not be approved until the needed services are expanded to accommodate the development. This provision was upheld by the New Hampshire Supreme Court in 1976, but should be used judic- iously to avoid a claim that a "taking" has occurred. 4. How Do Subdivision Regulations Work? Subdivision regulations should "Provide for the harmonious dev- elopment of the municipality... "RSA 674:36 II.(b) by considering and addressing the following factors: * The health, safety and prosperity of the municipality protected by guarding against premature or scattered subdivision of land that would lack water supply, sewer service, transportation, schools, fire protection, or other public services or that would require spending excessive public funds to supply these services. * Streets within the subdivision laid out in relationship to existing or planned streets in the municipality and designed to handled projected traffic and accommodate safety equipment. * Attention paid to providing parks or playground of reasonable size for neighborhood use. * Lot sizes conform to the zoning ordinance, and the land to be subdivided suitable for development without danger to health or safety and to provide sufficient areas, as needed, for on-site sanitary facilities. 5. Elements of the Regulation No single "model" subdivision regulation is suitable for use by all New Hampshire municipalities, but there are specific items that must be addressed in every case, including: * Contents of a completed application, which should cover all the plans, material, and other documents the board will need to conduct its review of the proposal. A checklist is recommended to identify the items required and let both board and applicant see what items are missing. * Deadline and location for filing the application to give the board time to be sure the application is complete. RSA 676:4,I(b) requires the filing to take place at least 15 days before the regular meeting of the board at which the application is to be submitted. * Notification of all abutters and the general public of submission and the public hearing. The regulations should state whether the public hearing. The regulations should state whether the public notice will be posted in one or more public places in the municipality or pub- lished in a newspaper of general circulation. Both methods can be used if the regulations so state. The public posting locations should be identified so notices can be easily be found by interested residents. Notice to the applicant and all abutters must be sent by certified mail at least 10 days before the date of sub- mission. Options that the planning board may address in the subdivision regulations include: * Guidelines and limitations for the preliminary applica- tion phases. Identify what material can be presented and discussed and the point at which a completed app- lication should be requested. It is generally recom- mended that the preliminary conceptual discussion should not include anything beyond the master plan, local reg- ulations, a base map, and a sketch of the location. Any applicant can decline to participate in the preliminary phases. * Procedures for expedited review of minor subdivisions that involve lots that will not be used for development, such as wood lots, or do not create more than 3 lots for building development. Review and not create more than 3 lots for building development. Review and approval of such minor applications may occur at one or more meetings of the board. Abutters and the public must be notified as for major subdivision, but a public hearing is required only is requested by an abutter, the applicant or the planning board.(RSA 676:4 III) In addition to the administrative procedures, the subdivision regulations should: * Cite the authority under which they are adopted - RSA 674:35. * Provide definitions, based on state statue and consis- tent with other local codes, ordinances, and regulations. * Establish requirements and design standards for roads and other features required by the proposal. * Require adequate provisions of utilities to serve the development, including water supply and distribution, sanitary sewers and storm water drainage. Any new facilities should be compatible with existing municipal system in the future. * Provide standards, as needed, for open space, recrea- tion, and protection of natural resources as recommended in the master plan. * Establish design standards to further the requirements of the zoning ordinance relating to cluster subdiv- isions, Manufactured housing parks, or special use permits delegated to the planning board. * Establish procedures to ensure completion of any improv- ments required, or conditions imposed, as part of the approval. The regulations may provide for a performance bond, an irrevocable letter of credit or some other type of surety sufficient to cover the costs of any work that is not completed to the satisfaction of the board. The termination date of the bond should be set late enough to ensure there is time to complete the work. 6. Adoption and Amendment Subdivision regulations are adopted by the planning board following the procedures in RSA 675:6. The planning board advertises and conducts a public hearing to allow review and comment by all interested parties. Following the hearing, the board makes any changes it feels should be made in re- sponse to public comment. Adoption of the regulation is by majority vote of the board. Amendments to the subdivision regulations are handled by the same procedures outlined above for the original adoption. The Subdivision regulations and any amendments are not valid until a copy has been certified by a majority of the board and filed with the city or town clerk. A copy should also be sent to the Office of State Planning for the state's central file. 7. Administration The planning board has full responsibility for administration of the subdivision regulations. RSA 676;4, i (g) provides that the planning board may impose reasonable fees, as part of the sub- division review process, to cover costs of administrative expenses. The subdivision application fee should be sufficient to pay for at least part-time administrative assistance. Most New Hampshire cities generally have full time planning depart- ments and, at last tally, over fifty towns had hired full time planners. Other towns contract with the regional planning commission to provide a professional planner on a part-time basis. Review of the completed application, as filed with the board can be done by an assistant to determine if all the required documents have been included before it is submitted to the board for accept- ance. This will expedite the review process both for the board and for the applicant. In some cases, it is feasible to hold the public hearing at the same meeting at which the application is formally submitted to the board, reducing notification costs and the number of times abutters are asked to attend a meeting on a particular application. The developer may also be assessed fees to cover review and analysis by outside consultants of any impact studies or tech- nical documents submitted as part of the application. If a developer engages experts to assist in preparation of a proposal, the planning board has a right and a responsibility to require an independent review of information if it is beyond the members areas of technical knowledge. C. SITE PLAN REVIEW 1. Definition Site plan review deals with evaluation of commercial, industrial, or multi-family development proposals prior to construction to ensure the safe and attractive development of the site and to protect the public health, safety and prosperity. RSA 674:43 defines "multi-family" dwelling units" as structures that contain more than 2 dwelling units. Site plan review can be required whether or not the development includes a subdivision or a resubdivision of the parcel of land. Site plan review is also required when a non-conforming use is to be altered either by enlarging the structure or changing to another use, if allowed by the zoning ordinance. 2. Purpose Historically, the New Hampshire village developed with buildings sited in clusters, allowing protection of the social community while providing the open space that formed a rural way of life. New patterns of development, based in large measure on the automobile, can cause conflicts with the basic community structure. Large parking areas with little or no vegetation, illuminated signs, and expansive structures requiring substantial alteration of the natural terrain are just a few of the potentials for adverse impact on the existing community. Site plan review looks at the details of a specific proposal in relation to the site and to the surrounding properties. Review of the site plan is an opportunity to shape the layout of a particular proposal by careful analysis of the site and the surrounding area. Review of site plans should be concerned with minimizing the impact of new, changed or expanded developments. The objective should be to reduce potential conflict that might arise as a result of uncontrolled development. Site plan standards are especially important where a residential district abuts a commercial or industrial district. Safeguards can be built into the site plan regulations to protect the residential population from traffic, noise, excessive lights, or other disturbances. 3. Relationship to the Master Plan Many of the issues presented in the master plan should have been addressed by the zoning ordinance before a proposed development reaches the point of a site plan review application. New Hampshire law allows a municipality to authorize site plan review only after adoption of a zoning ordinance, which would establish districts for commercial, industrial, and multi-family uses. The data gathered for the master plan will help the planning board determine if the roads, utilities, and other community facilities are adequate to handle the proposed development. One major difference needs to be noted between subdivision and sit plan review authority. The master plan may recommend that development of a particular section of the community be delayed until roads or water lines can be extended. In some cases, the master plan can then be used as a basis to deny a subdivision application. In a site plan review, the planning board must address the issues presented by the site layout and the relationship of the proposal to the surrounding area. If the application is for a permitted use on an existing lot, the site details can be addressed through the site review process, but the use itself cannot be denied. 4. What Is Site Plan Review? Site plan review is concerned with the specific relationship of man-made structures such as streets, utilities, and buildings in respect to the physical features of the site and the surrounding area. Communities may use the site plan review process to ensure the most desirable use of land within the confines of a specific development site - whether for multi-family, commercial, or industrial use. Zoning restrictions deal with lot sizes and set-backs; subdivision regulations govern the division of land and necessary improvements. Neither are designed to address such considerations as prevailing winds, noise levels generated by industrial activities, visual impact on surrounding property, or performance factors involved in a specific, permitted, development. Site plan review should cover such issues as: * The relationship of the building's volume and height to open spaces and to the surrounding area. * Access driveways in relation to parking and loading areas and to traffic on the public streets and pedestrian walks providing access to the property or crosswalks. * Landscape treatment, including retention of existing features and provision of needed landscaping, to provide a buffer for adjoining properties. * Grading and drainage to prevent erosion from water run- off. * Possible smoke or noise problems related to prevailing wind direction and the particulars of the proposal. * Provision of adequate water supply and sewerage systems if these have not been addressed through subdivision review. * Visual impact not only of the principal improvements, but of accessories such as signs, lighting, and utility poles. The site plan review process provides a mechanism for discussion, persuasion, and, perhaps, agreement on a site plan more suitable to the overall environment than the one originally submitted. It should be understood that a proposal that meets the zoning requirements cannot be denied purely on aesthetic grounds. Planning boards should recognize that professional assistance and sound, reasonable arguments are valuable assets in reaching acceptable compromises. 5. Elements of the Regulations The following requirements must be met before a municipality can carry out site plan review: * A planning board must be established and have adopted subdivision regulations. * The municipality must have adopted a zoning ordinance. * The municipality must authorize the planning board to review and approve or disapprove site plans and the clerk must file the authorization with the register of deeds. * The planning board must adopt regulations to ensure that the site plan submitted shows the natural features of the site including water courses, water bodies, trees and other vegetation and topographic features. The site plan should show all existing and proposed buildings, streets, parking and pedestrian areas, signs, lighting, fencing, screening and landscaping, and details of drainage, water and sewer facilities that are required for the proposed use and necessary to accommodate the site. * Administrative procedures should be adopted that address the details of application, filing, notification, time limits, and bonding. Unless otherwise specified in the regulations, these would be based on the procedures in RSA 676:4. 6. Adoption and Amendment Site plan review regulations are handled in the same manner as subdivision regulations and are adopted by the planning board following the procedures in RSA 675:6. The planning board advertises and conducts a public hearing to allow for review and comment by all interested parties. Following the hearing, the board makes any changes it feels should be made in response to public comment. Adoption of the site plan review regulations is by majority vote of the planning board. The regulations are not valid until a copy has been certified by a majority of the board and filed with the municipal clerk. A copy should be sent to the Office of State Planning. The planning board should be aware of any problems that arise with the procedures or the requirements for site plan review and address them through amendments to the regulations. The process for amending the site plan review regulations are the same as for the original adoption. 7. Administration As with the subdivision regulations, the planning board has the full responsibility for administration of the site plan review regulations. The procedures in RSA 676:4 cover any application that comes before the planning board, unless the local regulations provide other procedures. The planning board under authorization in RSA 676:4, I (g) can charge reasonable fees to cover the costs of administrative review of site plan applications. In many municipalities, the planning board coordinates review through a local committee made up of representatives of the public works, police, fire, water and sewer departments, and any other local agencies that have an interest in the particular development. In complex situations, the planning board could engage outside consultants to assist with review of specific elements of a plan such as a problematic drainage condition or technical aspects of a sewer connection. The site plan review regulations should establish the procedures for a site plan review committee, describe how the application is to be reviewed, and how recommendations will be reviewed by the board before it takes final action.