Site Walks and Other ‘Meetings Outside Meetings’
from Ethics for Land Use Board Members, NHMA Municipal Law Lecture#2, Fall 2005
IV. Site Walks and Other ‘Meetings Outside Meetings’
There are frequent occasions when some or all members of a land use board do have a legitimate reason to meet outside a traditional, formal meeting. The most common of these is a "site walk" in which board members visit the site of a proposed project. Site walks can be very important because they enable board members to get a better understanding of existing property conditions and any issues that are not apparent from looking at a plan on paper. Unfortunately, they also raise some tricky questions.
The best policy for site walks is to treat them as you would any other meeting—for example, give the appropriate written notice, take proper minutes and allow unfettered public attendance. If a quorum of the board attends the site walk, it is by definition a public meeting, and it must comply fully with the Right to Know Law. There is no room for argument on this point. It is "the convening of a quorum of the membership of a public body to discuss or act upon a matter or matters over which the public body has supervision."
What if the applicant refines to allow the board access to the property?
The board has a right to obtain all the information it needs to make an intelligent and informed decision on the application. If it has decided in good faith that a site walk is necessary, the applicant’s refusal to allow access to the site ought to be a sufficient basis for denying the application. The applicant has refused to provide access to information necessary to make a decision. It is no different from refusing to provide, say, soil information or a traffic impact study.
If further ammunition is needed, RSA 674:1, IV states that "[t]he planning board, and its members, officers, and employees, in the performance of their official functions may, by ordinance, be authorized to enter upon any land and make such examinations and surveys as are reasonably necessary and maintain necessary monuments and marks and, in the event consent for such entry is denied or not reasonably obtainable, to obtain an administrative inspection warrant under RSA 595-B." Note, however, that this authority is created only "by ordinance," so if the town hasn’t enacted such an ordinance, it is of no use. Further, it applies only to planning boards, not other land use boards. In the absence of that weapon, the board should be justified in relying on the rationale stated above—it can’t make an informed decision without visiting the site.
What if the applicant allows board members on the property, but refuses to allow the public to anend?
The applicant needs to understand that the full board has a right to participate in the site walk, and if the full board is meeting, it has to be done in public. The board does not have a right to exclude the public. Moreover, the applicant typically shows up for a site visit; and, while it is bad enough for the board itself to meet in private, it is that much worse for the board to meet with the applicant in private. If the applicant excludes the public, he is effectively excluding the board, and we are back to the same answer—the board can’t get access to needed information, so the application may be denied.
But can’t we avoid that problem by sending less than a quorum of the board to the site walk? That way it wouldn’t be a "meeting," and the Right to Know Law wouldn’t apply.
I was hoping you wouldn’t ask that. This is one of those murky areas without a clear answer. It is true that if a quorum is not present, it is not technically a "meeting." But this gets back to the point that all discussions about an application should occur in public as part of the formal hearing procedure, and all board members should have the opportunity to participate and receive the same information. Further, note that the Right to Know Law applies not only to all municipal boards, but also to "any committee, subcommittee or subordinate body thereof."5 If your board sends two or three members on a site visit without inviting the public, it would not be farfetched for a disgruntled citizen to claim that those members constituted a "subcommittee" and the site visit was an illegal private meeting.
That said, it is a fairly common practice for boards to send two or three members to visit a site, without treating it as a public meeting. To our knowledge, no New Hampshire court has ever considered whether this is permissible. We cannot say it’s illegal, but we can’t recommend it, either.
Another frequently used approach is for the board to agree that each member will visit the site individually when he or she has a chance. This is safer from a Right to Know Law perspective, but less satisfying from the perspective of the board’s ability to obtain consistent and coherent information. If seven members visit the site on seven different occasions, what are the chances that they will all see the same things? When they reconvene at their regular meeting, they may be like the blind men and the elephant, unable to agree on even the most fundamental points. Still, if this process works for you, it may at least avoid the Right to Know Law problem.
All of which brings us back to the original point: by far the safest and best way to approach site visits is to treat them as public meetings and follow all of the requirements of the Right to Know Law.
I suppose you’re going to say we can’t even carpool to the site.
Well—at the risk of seeming fanatical, there is an issue there. Still, there has to be some room for common sense. It is difficult to imagine that any judge would interpret the law to prohibit three members of a ZBA from riding together in a car for a few minutes, or to require them to rent a van so the public can join them for the ride.6 In any event, you can solve the problem pretty easily—just agree that you’re not going to talk about official business, including the site visit or anything about the application, while you’re in the car. That way, although you may have "convened" a quorum in the car, you will not have done so "to discuss or act upon a matter or matters over which the public body has supervision, control, jurisdiction or advisory power." Thus, no "meeting."
How can we prove that we didn’t talk about it in the car?
You don’t have to prove that you didn’t. Someone who challenges the action would have to prove that you did—and that will be impossible, if you really didn’t discuss it. Still, if you want to avoid even the appearance of impropriety, go in separate cars.