PLANNING FOR DEVELOPMENT A PLANNING PERSPECTIVE David G. Scott, Director of Policy Planning and Administration New Hampshire Office of State Planning January 26, 1995 A. Introduction: Each level of government in New Hampshire is charged with preparing a plan which addresses the needs of that level of government. A State Development Plan is required under RSA 9A which " ... establishes state policy on development related issues and proposes new or expanded programs to implement such policies." A "comprehensive master plan for the development of the region ..." is required of each regional planning commission under RSA 36:47. Finally, a municipal planning board under RSA 674:1 has the duty " ... to prepare and amend from time to time a master plan to guide the development of the municipality. It is important that coordination occur at each level of government so that the concerns addressed in each of these plans are recognized so that the implications of each plan on the others are identified early in the process. It is equally important to understand the specific role that each plan should play in the overall development of the state. The State Development Plan will provide the policy framework within which effective regional and local planning can be undertaken. The state plan must also provide the comprehensive link which ties together the functional plans prepared by individual state agencies including Transportation, Water Supply, Waste Management, Fish and Game management, Health and Education. Municipal plans tend to be site specific and relate to the spatially more limited goals of the individual municipality. It is at this level of government that plans are translated directly into site specific decisions. B. Levels of Public Planning in New Hampshire: 1. State Land Use Planning There are two types of planning being carried out at the state level of government; functional planning which involves an in- depth analysis of a relatively narrow activity i.e. highways; and comprehensive planning which is directed at a broad array of subjects but which focuses primarily on issues of policy and the coordination of functions. Planning activities which impact upon land use are carried on by a variety of New Hampshire agencies, state and regional. State agencies have been charged with developing functional plans, for example the Department of Transportation is responsible for preparing the State Highway Plan which significantly affects the location of those business or industrial activities which require improved highway facilities. By the same token the Department of Environmental Services (DES) through its efforts in the planning and engineering of public water and sewer facilities will affect the location and the relative intensity of development that may occur with a reasonable distance of such facilities. More recently, DES has been charged by the Legislature with Groundwater, Rivers, and Lakes planning. Each of these new additions will impact upon a broad array of the local planning concerns. A similar case can be made for the functional planning which takes place in agencies from Fish and Game, and the Department of Resources and Economic Development, Division of Forest and Lands, to Aeronautics and Education, particularly where capital investments are required. The implementation of decisions of these agencies will invariably have a significant affect upon municipal land use decisions. State comprehensive planning is the function of the Office of State Planning in the Governor's Office. Such planning is designed: to pull together and coordinate the functional planning of the previously noted state agencies; to gather and develop the information needed to undertake such functional planning; to review and provide assistance to local government to meet their needs and assure reasonable coordination; to provide advice and assistance to the Governor and the Legislature; and to work with and advise regional and national agencies of the programs and planning efforts currently underway in the state. 2. Municipal Planning The State of New Hampshire, in 1925, adopted zoning enabling legislation based on a Standard State Zoning Enabling Act issued by the United States Department of Commerce. That original enactment remained in essentially the same form until 1983 when the entire planning and zoning enabling legislation was recodified by the General Court. The present statute, governing the zoning process in New Hampshire, is heavily influenced by the original state model prepared under the auspices of the Department of Commerce. The legislature in 1935 authorized towns and cities to undertake planning for their jurisdictions. The state's planning enabling act was based on the recommendations of the 1928 Standard City Planning Enabling Act also prepared by the Advisory Committee on City Planning and Zoning of the US Department of Commerce. The Act was adopted for New Hampshire with minor deviations principally resulting from local definitions and customs. It is interesting to note that the zoning enabling legislation was adopted by the State of New Hampshire approximately ten years before the state enabled municipalities to plan. As a result, the planning process presently subscribed to by planners, i.e. undertake planning, adopt plans, and propose implementing (zoning) ordinances, was possible given the reverse order of adoption of the statutes. That procedure did lead to a number of conflicts in language and definitional inconsistencies which created internal conflicts over the years both in the interpretation of the statute and in local administration. Between 1978-1983, a major recodification of New Hampshire's planning and zoning statutes was undertaken and the resulting recommendations were adopted during the 1983 session of the General Court. This recodification re-emphasized that site specific planning and zoning should continue to be the responsibility of local government. The recodification also attempted to clarify planning and zoning procedure, eliminated outdated sections of the statute, strengthened the role of the master plan and provided opportunities for the use of innovative techniques to implement the master plan. Implementation of land use decisions is clearly within the domain of municipal government under New Hampshire Revised Statutes Annotated (NHRSA) Title LXIV Planning and Zoning Chapters 672-677. The declaration of purpose (RSA 672:1,I) states that "Planning, zoning and related regulations have been and should continue to be the responsibility of municipal government;". The efforts of municipalities to undertake and implement local planning significantly increased over the period 1975-1985. There at least two major reasons for this movement. The first was that growth, reflected most directly by population change, increased dramatically during this time period. Towns and cities were struggling to define and provide for this growth. Secondly, regional planning came of age and began to provide the professional and technical expertise needed by municipal governments to address the resulting growth related problems. During the period of the early 90's the pace of Municipal Planning initiatives has slowed a bit, principally due to the decreased rate of growth. A number of new approaches came out of the report of the Governor's Commission in the 21st Century. The concepts of Civic Profiles, Community Stewardship, and Community Cornerstones have stimulated a renewed interest in the New Hampshire municipality. Gradually the processes are becoming better defined and instructional materials are being prepared. Generally, these and related approaches will encourage a greater level of citizen involvement in the municipal planning process. 3. Regional Planning A third level of government planning presently exists within the state. In 1955 the legislature amended the municipal planning enabling legislation to authorize the formation of regional planning commissions. RSA 36:45 authorizes the Office of State Planning to " ... delineate planning regions for the state so that each municipality of the state will fall within a delineated region ..." The statute then goes on to authorize the establishment of regional planning commissions (RPC's) by municipalities within the delineated region. These commissions are empowered under RSA 36:47,"... to prepare a comprehensive master plan for the development of the region within its jurisdiction...", and to provide assistance to member municipalities. Essentially they can function as the technical planning arm of each member municipality to the extent that municipality feels it is appropriate. A regional planning commission does not have legislative nor regulatory powers but is authorized to act in an advisory capacity. Operationally, the regional agencies also work closely with the Office of State Planning. At times, such as when contractual agreements are in place between the agencies, the RPC's function as an extended staff for the OSP. Regional planning commissions undertake a variety of tasks for municipal governments ranging from general technical assistance relating to master planning and land/water codes and ordinances to specific functional projects such as transportation, water quality, purchasing, solid waste and resource related planning. Finally, regional planning derives its financial resources from diverse sources. Local government provides a substantial contribution both as members and through special projects. The State of New Hampshire has budgeted approximately $250,000 per year for about ten years. In 1988 an additional appropriation of $270,000 was provided for the purpose of assisting the regional planning agencies in their efforts to become part of the State's computerized land use data base. Federal funds from a variety of sources provide substantial assistance for transportation, community development, water resources planning and economic development. Table 1 Regional Planning Agencies in New Hampshire Name Planning Region Date Founded Office NCC I 1973 Littleton LRPC II 1968 Meredith UV-LSC III 1963 Lebanon SWRPC IV 1971 Keene CNHRPC Va 1970 Boscawen SNHPC Vb 1968 Manchester NRPC Vc 1959 Nashua RPC VI 1982 Exeter SRPC VII 1968 Dover C. Basis For Land Use Controls: New Hampshire Statute and the statutes of most states enable local governments to prepare and adopt a variety of local codes and ordinances for the purpose of providing for the health, safety and general welfare of the residents of the community and encourage the appropriate and wise use of land. These statutes usually provide the procedural requirements and limits within which the towns and cities are authorized to operate. There have been a number of court challenges on zoning to the point that the basic issue of constitutionality is no longer under debate. In 1926 the U.S. Supreme Court in the case of the Village of Euclid v. Ambler Realty Co. which was the courts first review of zoning legislation, said: "The ordinance now under review, and all similar laws and regulations, must find their justification in some aspect of the police power,asserted for the public welfare. The line which in this field separates the legitimate from the illegitimate assumption of power is not capable of precise delimitation. It varies with circumstances and conditions. A regulatory zoning ordinance, which would be clearly invalid as applied to great cities, might be clearly invalid as applied to rural communities.... Thus the question whether the power exists to forbid the erection of a b building of a particular kind or for a particular use, like the question whether a particular thing is a nuisance, is to be determined, not by an abstract consideration of the building or the thing considered apart. but by considering it in connection with the circumstances and the locality.... A nuisance may be merely the right thing in the wrong place-- like a pig in the parlor instead of the barnyard. If the validity of the legislative classification for zoning purposes be fairly debatable, the legislative judgement must be allowed to control." The initial zoning ordinances were designed to address problems which were all ready in place. The major cities attempted to reduce nuisances resulting from the mixing of factories and people. The emphasis was on health and safety. Following the second world war and the advent of the new highly mobile society the purposes of land use controls changed. The courts recognized this change and a modified stance seemed to result. It was made clear that a municipality had a sovereign right to order its affairs so as to accomplish certain common essential needs. In other words the municipality had the right to plan ahead. Zoning became a means of implementing the Master Plan. In this situation, undeveloped land was being zoned based on the municipality's estimates of future population growth and future land use needs. This transition has resulted in both types of zoning being present at the same time in different jurisdictions. It is important to recognize this and to be aware of the characteristics of any community within which you may work. As noted previously New Hampshire's statutes were recodified in 1983. The declaration of purpose states that; "I. Planning. zoning and related regulations have been and should continue to be the responsibility of municipal government "II. Zoning, subdivision regulations and related regulations are a legislative tool that enables municipal government to meet more effectively the demands of evolving and growing communities; "III. Proper regulations enhance the public health, safety and general welfare and encourage the appropriate and wise use of land; "IV. The citizens of a municipality should be actively involved in directing the growth of their community; "V The state should provide a workable framework for the fair and reasonable treatment of individuals; and "VI. It is the policy of this state that competition and enterprise may be so displaced or limited by municipalities in the exercise of the powers and authority provided in this title as may be necessary to carry out the purposes of this title." In summary, in New Hampshire, municipalities are responsible for their own planning and the state is responsible for giving the communities some guidance. First comes the plan and then comes the codes and ordinances. D. The Planning Prerequisite - The Master Plan: The Master Plan is the Municipal roadmap. From it one should be able to determine the future changes that municipality may be anticipating. New Hampshire statute (RSA 674:1) says that when first established each planning board has a duty, "... to prepare and amend from time to time a master plan to guide the development of the municipality." This statute then goes on to include the general content of such a plan, the need for public involvement, and the process by which such a plan is to be adopted. Possibly the most important part of the Master Plan is the first section which requires that the Planning Board determine municipal goals and objectives. This section should define the future aspirations of the municipality. This section must be completed before any zoning ordinance can be adopted. By becoming familiar with this section and the remainder of the local plan one should be able to better understand the rationale for the various codes and ordinances which are adopted to carry out the Plan. E. Land Use Controls - Implementing the Plan: The preparation of a zoning ordinance is the responsibility of the planning board. Adoption of such an ordinance is the responsibility of the Legislative body. In a town this is the Town Meeting. It is important to remember that this ordinance cannot be changed without the vote of the town. This may mean a delay of as much as a year. It is also useful to understand that the amendment process is established in Statute and is essentially impossible to change or expedite. A zoning variance can be requested. However one should recognize that the building official when he suggests you consider asking for a variance is not saying that you have a possibility of getting it approved! Quite the contrary, he may be merely getting rid of a problem and giving it to someone else. Both Subdivision Regulations and Site Plan Review Regulations are the bailiwick of the planning board. The community authorizes the planning board to adopt and administer such regulations after a master plan and a zoning ordinance have been prepared and approved. Once adopted such regulations can be modified by the planning board either on the basis of an unusual set of circumstances related to a specific project or the board can have a public hearing and amend the regulations themselves. The objectives of the two regulations should be understood. Subdivision Regulations deal with proposals to divide a parcel of land into several parcels. Usually, necessary road and related improvements are part of the approval process. On the other hand, Site Review Regulations are intended to look at proposals to develop existing parcels of land for which a subdivision is not required. Normally, the type of development being anticipated is other than single family residential in nature. To summarize: Zoning which controls land use, is adopted by the legislative body and is changed with great difficulty. Subdivision Regulations and Site Plan Review Regulations are authorized by the legislative body but are developed and approved by the planning board after public hearing(s). The board has more latitude in the modification or amending of such regulations. F. Making Decisions - Some Advice: The State of New Hampshire has a statewide newspaper. There are some that disagree with portions of the paper. There are few that would disagree that the Manchester Union Leader does a great job of covering local affairs. Particularly is this true when town meeting comes around. At that time the paper refers to the municipalities as "The Little Republics". Perhaps this is the thing to remember when you want a municipality to change its regulations! Finally, when looking at local planning it is useful to recognize the process by which decisions are made. Decision theory contains several models for decision making. As a planner, I remember with fondness the Comprehensive Model of decision making. It is so logical! First you set your goals; then gather and analyze data; develop the plan; and then you implement the plan. SO logical ...and so irrelevant when applied to government! I believe that decisions in local government are made by following the Disjointed Incremental Model. At least that's as close as I can come to a description of the model. The process is disjointed because decisions are made by a variety of different persons who may or may not communicate, and the decisions may cover different time frames. The process is incremental because changes only occur as very modest shifts in direction from that which is traditionally acceptable. Obviously this model can be overridden in the event that a natural catastrophe occurs or, in New Hampshire, with the election of a Democratic governor. The point is that if you are aware of the decision making process that is in effect, you may be better able to anticipate the response of a local board to a specific proposal. Once you know the decision making process, you should get to know the decision makers. Usually they are volunteers who take a lot of grief and who are where they are because of the belief that they can contribute to the good of the municipality. Often they have a bias, usually against development and/or developers. They mean well and do a surprisingly good job. Well the individual who is non-threatening, calm, clear and concise in his/her presentations, who listens to the ideas of the board, and who responds in a quiet non-defensive manner can accomplish a great deal. The boards do not need another hassle any more than do you. So give them a break!