Sat 9/8/2012 2:55 PM
New Hampshire Housing
Thanks to Chris for this review of RSA 676:4, II and RSA 676:12, VI. I agree with most of what he says, but I’d take a more nuanced approach to the final point.
I think it’s important to remember what the purpose of vesting is in the final sentence of RSA 676:12,VI (below) – it is intended to protect the applicant against regulatory changes made in response to a pre-application proposal. Distinguish this from the vesting found in RSA 674:39, which protects the results of an approval for a limited period of time. So under these circumstances, shouldn’t the applicant be able to decide if a provision should apply or not? It’s true that the first sentence of the paragraph says "No proposed subdivision or site plan review or zoning ordinance or amendment thereto shall affect a plat or application…" You could construe this to mean that anything within the same zoning warrant article must be taken as a whole; so if it’s a comprehensive rezoning, then it’s all or nothing. But if you have separately enumerated articles, then I think the applicant should be able to choose.
I think this provides a logical outcome. If you have different standards being amended in a zoning ordinance, to the extent there is an integrated impact among them, they should be part of the same warrant article and the applicant should not be able to parse them out. But if there is no clear relationship between the changes, then they should be separate warrant articles and the applicant should be able to differentiate between them. I think the same reasoning applies to subdivision and site plan regulations, though these tend to be amended by planning boards in one fell swoop.
I’m not sure that it makes sense that the law should both protect the applicant and allow the planning board to "stick it to him" at the same time. But I wholeheartedly agree with Chris’ point about consulting with legal counsel. As far as I know, this issue has not been decided by the Supreme Court.
RSA 676:12, VI.
The provisions of paragraph I shall not apply to any plat or application which has been the subject of notice by the planning board pursuant to RSA 676:4, I(d) prior to the first legal notice of a proposed change in a building code or zoning ordinance or any amendment thereto. No proposed subdivision or site plan review or zoning ordinance or amendment thereto shall affect a plat or application which has been the subject of notice by the planning board pursuant to RSA 676:4, I(d) so long as said plat or application was the subject of notice prior to the first legal notice of said change or amendment. The provisions of this paragraph shall also apply to proposals submitted to a planning board for design review pursuant to RSA 676:4, II(b), provided that a formal application is filed with the planning board within 12 months of the end of the design review process.