Annual Legal Updates | Building Codes | Combining Subdivision and Site Plan Review Regulations | Enforcement/Estoppel | Fences | Home-rule/Dillon's Rule | Legal Questions and Answers | Merger (Voluntary and Involuntary) | Legislation | Nonconforming Uses | Preemption and Governmental Immunity | Official Ballot Law (RSA 40:13) ("SB2") | Reckoning | Recording of Plats | Religious Land Use and Institutionalized Persons Act (RLUIPA) | Residential Sprinklers | Right To Know Law (RSA 91-A) | Scattered and Premature | Separation Requirements | Simplex v. Newington | Solar Skyspace Easements | Standing | Supreme Court Decisions | Takings (Inverse Condemnation) | Tax Maps | Vesting
Annual Legal Updates
- 2017-2018 Land Use Law in Review
from the Spring Planning & Zoning Conference, April 28, 2018, by Ben Frost, Esq.
- NH Land Use Law Update
- New Hampshire Municipal Association Annual Conference, November 19, 2015, Timothy Corwin, Esq., AICP and Benjamin Frost, Esq., AICP
- 2014-2015 Land Use Law in Review
from the Spring Planning & Zoning Conference, May 2, 2015, by Ben Frost, Esq.
- 2013-2014 Land Use Law in Review
from the Spring Planning & Zoning Conference, May 3, 2014, by Ben Frost, Esq.
- 2012-2013 Land Use Law in Review
from the Spring Planning & Zoning Conference, May 11, 2013, by Ben Frost, Esq.
- Land Use Law Update, NHMA law lecture #3, Fall 2011
- New Hampshire 2010-2011 Land Use Law in Review - Statutes and Cases
from the Spring Planning & Zoning Conference, June 11, 2011, by Ben Frost, Esq.
- New Hampshire 2010 Land Use Law in Review - Statutes and Cases
from the Fall Planning & Zoning Conference, November 13, 2010, by Ben Frost, Esq.
- New Hampshire 2009-10 Land Use Law in Review - Cases and Statutes
from the Spring Planning & Zoning Conference, May 8, 2010, by Ben Frost, Esq.
- A New Hampshire Planner's Review of Recent Legislation and Court Decisions
from the Fall Planning & Zoning Conference, October 17, 2009, by Ben Frost, Esq.
- A New Hampshire Planner's Review of Recent Court Decisions and Legislation
from the Spring Planning & Zoning Conference, May 2, 2009, by Ben Frost, Esq.
- 2007 Land Use Law Update
from the Spring Planning & Zoning Conference, April 28, 2007, by Tim Bates
- 2005 Legal Update
from the Spring Planning & Zoning Conference, April 9, 2005, by Tim Bates
- 2004 Legal Update
from the Spring Planning & Zoning Conference, May 8, 2004, by Tim Bates
- 2003 Legal Update
from the Spring Planning & Zoning Conference, April 12, 2003, by Tim Bates
- 2002 Legal Update
from the Spring Planning & Zoning Conference, April 20, 2002, by Ben Frost
Building Codes
- State Building Code [RSA 155-A:1,IV]
- SENATE BILL 234
AN ACT including the International Residential Code 2000 in the definition of the state building code. Chapter Law 112 of 2006. (Note: Chapter 112 (SB 234) adds the International Residential Code 2000 to the definition of "New Hampshire building code" in RSA Ch. 155-A. It makes no other changes to the statute. Thus, if a municipality enacts a process for enforcement of the state building code under RSA 674:51, that enforcement authority will include the residential code. It is unclear whether a municipality that previously adopted an enforcement process, without inclusion of the residential code, will now be automatically deemed to have adopted an enforcement process for the residential code. E.D. 7/8/06.) - RSA 674:51 Power to Amend State Building Code and Establish Enforcement Procedures
- RSA 674:51-a Local Adoption of Building Codes by Reference
- Department of Safety, Bureau of Building Safety & Construction
- State Building Code Review Board
- Please refer all questions regarding the application of the state-wide building code to your local building code officials, or in the case where there is no local building code official, to the State Fire Marshal's office, (603) 223-4289.
- The Basics of New Hampshire Building and Fire Codes, New Hampshire Town and City, July-August 2014
Whether your municipality has building and fire inspectors on staff or not, there are state-wide standards for both building and fire codes that every municipality and property owner must adhere to. The array of RSA's and enabling rules which set the state codes, when they apply, what to do when they overlap, and how they can be appealed, can be confusing even for seasoned practitioners of the codes.
To counter the potential for misunderstanding, a subcommittee was established with representatives from the Fire Marshal’s Office, the NH Building Officials Association, the Building Code Review Board, the Association of Fire Chiefs, the Office of Energy and Planning, the NH Fire Prevention Society, and the NH Planners Association, to educate local building, fire, and planning officials, zoning boards, and municipal volunteers, on the building and life safety codes required by state law. The subcommittee created a factsheet
outlining the current status of local and State fire and building codes in New Hampshire. This article explores some of the most common questions around the codes and enabling legislation supporting the current standards.
- Local Administration of the State Building code, New Hampshire Town and City, January 2012
Prior to 2002, adoption and administration of a building code was purely a local option. In 2002 the New Hampshire legislature adopted the state building code, comprising various model codes. See RSA 155-A:1, IV. The state building code applies to all construction in New Hampshire (RSA 155-A:2; 674:51) and municipalities have the option to administer it. But after nearly a decade, there is a good deal of uncertainty in some communities about whether enforcement authority has actually been adopted; whether the code is being properly administered; and whether, in an era of tight budgets, it is prudent to accept the responsibility and invest the resources necessary for proper enforcement. - State Building Code Update, New Hampshire Town and City, January 2004
September 14, 2003, came and went almost unnoticed in the building community. That was the date when contractors were required to begin complying with the state building code. There was not much fanfare surrounding the date, however, since the state fire marshal's office had taken the position that the state building code has been enforceable since September 14, 2002. But this past summer, even before compliance was mandatory, the legislature passed amendments to the state building code. The amendments became effective on July 14, 2003. - Fire Code
There is also a state fire code which is adopted under administrative rules through the State Fire Marshal's office (see the enabling statute RSA 153:5). Contact the SFM's office directly (603-223-4289) to learn more about both and to see how the new state building code and the state fire code work together. - Energy Code
There is a residential energy code that is administered by the Public Utilities Commission. The code is adopted as an administrative rule and RSA 155-D is the enabling statute. - Architectural Barrier-Free Design Code
Information about ABFDC is available from the Governor's Commission on Disability, Architectural Barrier Free-Design Committee - NH Building Officials Association
- See the results of the Municipal Land Use Regulation Annual Survey for the municipalities that have adopted a process for the local enforcement of the state building code pursuant to RSA 674:51.
- International Code Council's International Property Maintenance Standards
- a summary by the National Center for Healthy Housing
- NH Building and Fire Codes Factsheet
- For more information about the relationship between the State Building Code and the State Fire Code, see the 2015 NHMA Law Lecture#3 - Implementing & Enforcing the State Building Code & the State Fire Code by Audrey Cline, Building Inspector/Code Enforcement Officer, Town of Stratham; Carrie Rouleau-Cote, Building Inspector, Town of Auburn; and Stephen C. Buckley, Esquire, Legal Services Counsel, NH Municipal Association.
Combining Subdivision and Site Plan Review Regulations
-
[Plan-link] Combined Site Review and Subdivision Regulations
- Plan-link discussion thread, February 2015
-
Examples of local regulations
Enforcement/Estoppel
- See NHMA Law Lecture #3 - Code Enforcement, Fall 2016
Code enforcement can be complicated, with various nuanced procedures that are dependent on the code being enforced. This presentation will inform attendees of the various land use, building, and safety codes enforceable by municipalities in the State of New Hampshire, as well as the procedures established to enforce those codes. Attendees will be further provided with practical advice with regard to enforcement actions from three practitioners in code enforcement.
Presenters: Eric Maher, Esq. Christopher T. Hilson, Esq. Justin L. Pasay, Esq. Donahue, Tucker & Ciandella, PLLC
- See the Penalties and Remedies subdivision of Chapter 676, specifically RSA 676:15, 676:16, 676:17, 676:17-a, and 676:17-b, for the enforcement statutes.
- Preparing a Certified Land Use Record, New Hampshire Town and City, July/August 2014
When a local land use proceeding ends in a written notice of decision, a party who disagrees with the result may appeal the matter to the Superior Court in accordance with RSA 677. The best way to avoid negative impacts is for the land use board to carefully create its record of how the case was handled and decided. That is, the land use record begins on the day the first contact is made with staff, and continues until the final written notice of decision is rendered and any required motions for rehearing are decided.
- Records Compiled for Enforcement of Statutes, Ordinances and Regulations: To What Extent Are They Exempt from Disclosure?, New Hampshire Town and City, July/August 2012
Although law enforcement records are not included as such in the list of government records exempt from disclosure under the Right to Know Law, RSA 91-A:5, the New Hampshire Supreme Court has long recognized that certain law enforcement records may be withheld from public disclosure in accordance with the exemption for such records in the federal Freedom of Information Act (FOIA). - Understanding the Concept of Municipal Estoppel, New Hampshire Town and City, July/August 2008
Municipal Estoppel is a legal doctrine employed by courts to assure that citizens are treated fairly in their dealings with municipalities. - Land Use Violation Enforcement Costs Can Be Recovered, New Hampshire Town and City, February 2007
The legislature has developed an enforcement procedure for land use violations, which describes the fines and penalties that may be imposed for violations of a zoning ordinance, building code or land use regulation. - Chapter 595-B Administrative Inspection Warrants
- Guide to District Court Enforcement of Local Ordinances & Codes
, 2001 , NH Bar Association
- Your Guide to the New Hampshire Courts
An informative, user-friendly handbook for learning about your court system and the administration of justice. - NH Judicial Branch Self Help Center
- Town of Atkinson v. Malborn Realty Trust & a.
Argued: June 13, 2012 Opinion Issued: August 17, 2012- Calculation of fines:
"'[W]hen interpreting statutes, we do not merely look at isolated words or phrases, but instead we consider the statute as a whole.' Appeal of Alexander, 163 NH 397, 409 (2012) (quotation omitted). Under the plain meaning of RSA 676:17, I, the civil penalty imposed is $275 per day "for the first offense" and $550 per day "for subsequent offenses." Reading RSA 676:17, I, as a whole, we conclude that word "offense" refers to the violation(s) for which "the violator receives written notice from the municipality that the violator is in violation." Here, because the Town issued only one notice of violation, only a "first offense" is at issue. Pursuant to RSA 676:17, I, therefore, the respondents are subject to a penalty of $275 for each of the 200 days of this offense ($275 x 200 = $55,000). Accordingly, we modify the trial court's order to reduce the civil penalty imposed to $55,000." - Fire Chief's Requirement of Residential Sprinklers Upheld; Civil Penalties for Land Use Violations Explained
This opinion provides interesting guidance regarding the new statutes prohibiting towns from requiring residential sprinklers and clarifying the imposition of civil penalties for land use violations.
- Calculation of fines:
Fences
Home-rule/Dillon's Rule
- The Early Years of the New Hampshire Municipal Association (1975-1984)
An article outlining attempts to amend the state constitution to change New Hampshire into a "home-rule" state. New Hampshire Town and City, May/June 2016 - Home Rule: Do New Hampshire Towns and Cities Have It?, C. Christine Fillmore, Staff Attorney, New Hampshire Municipal Association, February 2010
- From Wikipedia, the free encyclopedia
- The NH Constitution, Part II, Article 5, reserves to the Legislature (General Court) "full power and authority" to make laws:
[Art.] 5. [Power to Make Laws, Elect Officers, Define Their Powers and Duties, Impose Fines and Assess Taxes; Prohibited from Authorizing Towns to Aid Certain Corporations.] And farther, full power and authority are hereby given and granted to the said general court, from time to time, to make, ordain, and establish, all manner of wholesome and reasonable orders, laws, statutes, ordinances, directions, and instructions, either with penalties, or without, so as the same be not repugnant or contrary to this constitution, as they may judge for the benefit and welfare of this state, and for the governing and ordering thereof, and of the subjects of the same, for the necessary support and defense of the government thereof, and to name and settle biennially, or provide by fixed laws for the naming and settling, all civil officers within this state, such officers excepted, the election and appointment of whom are hereafter in this form of government otherwise provided for; and to set forth the several duties, powers, and limits, of the several civil and military officers of this state, and the forms of such oaths or affirmations as shall be respectively administered unto them, for the execution of their several offices and places, so as the same be not repugnant or contrary to this constitution; and also to impose fines, mulcts, imprisonments, and other punishments, and to impose and levy proportional and reasonable assessments, rates, and taxes, upon all the inhabitants of, and residents within, the said state; and upon all estates within the same; to be issued and disposed of by warrant, under the hand of the governor of this state for the time being, with the advice and consent of the council, for the public service, in the necessary defense and support of the government of this state, and the protection and preservation of the subjects thereof, according to such acts as are, or shall be, in force within the same; provided that the general court shall not authorize any town to loan or give its money or credit directly or indirectly for the benefit of any corporation having for its object a dividend of profits or in any way aid the same by taking its stocks or bonds. For the purpose of encouraging conservation of the forest resources of the state, the general court may provide for special assessments, rates and taxes on growing wood and timber.
Dillon (a judge in Iowa) wrote his treatise a century after this constitutional provision was adopted; the last serious attempt to amend the NH constitution with a home rule provision was in 2000.
Legal Questions and Answers
- The New Hampshire Municipal Association's New Hampshire Town and City magazine frequently contains an article written by a staff attorney on a topic of interest or of timely importance.
- Search New Hampshire Town and City articles
- Search NHMA Court Updates articles
- Legalese and Finding the Law
- New Hampshire Town and City, September 2003
Merger (voluntary and involuntary)
- RSA 674:39-a Voluntary Merger
- RSA 674:39-aa Restoration of Involuntarily Merged Lots
- The "Merger" Problem - When Do 2 Lots in Common Ownership Become One?
- F. The Steps For Analyzing A 'Merger' Case
- NHMA Law Lecture #1 - Grandfathering: The law of Non-Conforming Uses & Vested Rights, Bernie Waugh, Esquire, Gardner Fulton & Waugh PLLC and Adele Fulton, Esquire, Gardner Fulton & Waugh PLLC
- Lot Mergers and Unmergers, New Hampshire Town and City, May/June, 2014
All but a handful of New Hampshire municipalities have a zoning ordinance in place. Many of those ordinances address minimum lot sizes, and in the past have gone further than that in regulating lots by providing for the merger of substandard lots. Mergers are a frequent area of confusion for property owners as well as Planning Boards and Zoning Boards of Adjustment. In this issue's Legal Q&A, we will look at how this issue arises and how it has changed over the years. - Involuntary Merger of Lots Prohibited
Chapter 345 (SB 406) prohibits any municipality, county, or village district from merging preexisting subdivided lots or parcels except upon the consent of the owner. The purpose is to invalidate provisions, common in local zoning ordinances, that require the automatic merger of contiguous substandard lots that are owned by the same person. The new law does not appear to invalidate involuntary mergers that are deemed to have occurred by operation of law prior to the effective date. It also does not appear to prevent a municipality from requiring the property owner to merge contiguous substandard lots as a condition precedent to developing the lots—it merely states that the municipality itself may not merge them. E.D. September 18, 2010. - Division of Involuntarily Merged Lots
Chapter 206 (HB 316) requires a municipality, upon request of the property owner, to divide lots that were involuntarily merged prior to September, 18, 2010, subject to certain conditions. First, the request must be submitted to the governing body prior to December 31, 2016. Second, if any owner in the chain of title from the date of the involuntary merger abandoned a lot line or took any other action indicating that the owner regarded the lots as merged, the municipality is not required to divide the lots. Third, the legislation makes clear that separation of previously merged lots does not cure any non-conformity with current land use ordinances. Fourth, the amendment authorizes a municipality to adopt ordinances that provide more generous relief than the statute. Finally, municipalities must inform the public of this new law by posting a notice in a public place continuously from January 2012 until December 2016, and publish notices in the town's annual reports for years 2011 through 2015. E.D. July 24, 2011. See also section VIII. - Limited Opportunity to Restore Involuntarily Merged Lots of Record, November 26, 2013, by Atty. Michael J. Donahue
- Involuntary Mergers Prohibited - 2010 Chapter 345 (SB 406) and Involuntary Merger Optional Retroactive Restoration - 2011 Chapter 206 (HB 316)
, from "Land Use Law Update", NHMA Law Lecture 2011, Christopher L. Boldt, Donahue, Tucker & Ciandella, PLLC and Benjamin D. Frost, New Hampshire Housing Finance Authority
- Charles A. Roberts v. Town of Windham
Argued: May 9, 2013, Opinion Issued: July 16, 2013
(Involuntary Merger - this case points out that the placement and use of buildings and the driveway matter in the determination of whether or not lots have been voluntarily merged and thus not available to be unmerged under 674:39-aa.) - Town of Newbury v. Steven P. Landrigan & a.
Argued: April 11, 2013 Opinion Issued: August 21, 2013
(The common law doctrine of merger by conduct is alive and well. "(o)wners can effectuate a merger of contiguous, non-conforming lots, independent of any town ordinance, 'by behavior which results in an abandonment or abolition of the individual lot lines.'" Robillard, 120 N.H. at 479 (quotation omitted). The treatment of adjacent nonconforming lots by predecessors in title matters in determining if lots have been merged into one.) - City of Dover Application For Lot Restoration
Legislation
Nonconforming Uses
- (see the Nonconforming Uses subject heading on the Land Use Boards and Municipal Officials page)
Preemption and Governmental Immunity
- Is the town ordinance prempted?
This is an excerpt from NHMA Law Lecture #1 - Developments in the Law: Accessory Dwelling Units, Agritourism, and Signs - Fall 2016. This lecture explores a trio of recent legal developments including the New Hampshire's Supreme Court's decision in Forster v. Town of Henniker which is instructive on several legal issues including implied preemption - whether state laws on a particular topic are so comprehensive that they preempt conflicting local ordinances. - The Doctrine of Preemption in the Context of Municipal Ordinances and Regulations - Atty. Justin L. Pasay, DTC Lawyers, March 4, 2015
- State Preemption of Local Regulation, New Hampshire Town and City, January/February 2014
Anyone who has been to a few NHMA workshops or read our articles in Town & City is probably familiar with the idea that New Hampshire is not a "home rule" state. Cities and towns have only the powers the legislature has expressly given them. All municipal authority must find its basis in some state law. - Preemption of Municipal Regulation: 'Who's in Charge Here, Anyway?', New Hampshire Town and City, June 2011
Municipal regulations and ordinances in New Hampshire must pass two familiar tests to be enforceable. First, they must be authorized by a state law. Second, they have to be constitutional, meaning they don't violate either the United States Constitution or our New Hampshire Constitution. These two requirements get a lot of attention, but there is a third test. Even when it appears that one state statute has generally authorized municipal regulation of a subject, another state statute or federal law may "preempt" municipal regulation. The idea that the state or federal government prohibits towns and cities from regulating certain areas in this fashion comes as a surprise to many local officials. - When Does Zoning Apply to Governmental Use of Land?, New Hampshire Town and City, May 2007
A zoning ordinance is a comprehensive system to regulate the timing and manner of development in a municipality. Ordinarily, all land use within a town or city is subject to the local zoning ordinance and land use regulations. However, it may be surprising to learn that the law provides an exception for "governmental uses" of land. - RSA 674:54 Governmental Use of Property
- See Preemption of Local Regulation: Ejected from Your Own Game!
Presenters: Attorney Matthew R. Serge, Upton & Hatfield, LLP and Attorney C. Christine Fillmore, New Hampshire Local Government Center
NHMA law lecture #2, Fall 2011
Even when it appears that one state statute has authorized municipal regulation of a subject, another state statute or federal law may preempt municipal regulation. This lecture explores the developing reach of state and federal preemption in a variety of land use areas such as hazardous waste, landfills, wind power, transmission lines and environmental regulation. - Do local governments have to follow their own rules?
- NHMA Law Lecture #2, Fall 1997
- §2.13 Applicability of Zoning to Governmental Entities
, NHP vol. 15, Land Use, Planning and Zoning, Atty. Peter J. Loughlin, Third Ed., 2000
- Town of Carroll v. William Rines
Argued: June 13, 2012 Opinion Issued: November 9, 2012
The local excavation regulation was so broadly worded that it did not provide for exceptions for permit-exempt excavations under the statute and thus was found to be preempted by RSA 155-E. - Town of Carroll v. William Rines
Argued: June 13, 2012 Resubmitted: December 7, 2012 Opinion Issued: January 30, 2013
Municipal zoning still applies to State-permit exempt excavations (NHMA summary)
Official Ballot Law (RSA 40:13) (SB2)
- SB2 at 5: Bonds, Ballots, and the "Deliberative Session"
This paper reviews the first five years of experience with RSA 40:13, the official-ballot-meeting form of town government known popularly as "SB2," which is short for Senate Bill 2, the legislation that authorized it. The paper compares SB2 and traditional-meeting jurisdictions' approval of bond articles and voter participation rates, updating information contained in the papers the Center published on this topic in 2000 and 2001. The paper identifies problems with the "deliberative session" as defined by SB2 and recommends that communities considering moving to an official-ballot form of government use the state's charter provisions to avoid those problems. The report recommends that the legislature amend SB2 to provide more options to communities. - RSA 40:13
- See the results of the Municipal Land Use Regulation Annual Survey for municipalities that are Municipal Ballot Law ("SB2") towns.
Reckoning
- RSA 21:35 Time, How Reckoned; Days Included and Excluded
- Steve Trefethen & a. v. Town of Derry
Submitted: February 7, 2013 Opinion Issued: April 12, 2013
(timeliness of an appeal when the last day to file falls on a weekend or holiday)- summary of the case
(April 15, 2013 Plan-link posting)
- summary of the case
Recording of Plats
- The New Hampshire Planners Association (NHPA) has been working with the NH Register of Deeds Association (NHRDA) and the NH Land Surveyors Association (NHLSA) to help educate and clarify what should and should not be included on recorded plans, per RSA 478:1-a Plat Law. This information will hopefully help all members of our respective organizations to better understand the role of the Registry of Deeds regarding the recording of plats or plans.
Religious Land Use and Institutionalized Persons Act (RLUIPA)
- US Department of Justice, Civil Rights Division, Housing and Civil Enforcement Section, RLUIPA
- A Guide to Federal Religious Land Use Protections
- Chapter 21C-Protection of Religious Exercise in Land Use and by Institutionalized Persons, 42 U.S.C. §§2000cc, et seq.
- Statement of the Department of Justice on the Land-Use Provisions of the Religious Land Use and Institutionalized Persons Act (RLUIPA) and Questions and Answers on the Land-Use Provisions of RLUIPA
Residential Sprinklers
- Moratorium on Residential Sprinkler Requirements - 2010 Chapter 282 (HB 1486); Prohibition on Residential Sprinkler Requirements - (SB 91); Planning Boards Prohibited from Requiring Residential Sprinklers - 2011 Chapter 203 (HB 109)
, From "Land Use Law Update", NHMA Law Lecture 2011, Christopher L. Boldt, Donahue, Tucker & Ciandella, PLLC and Benjamin D. Frost, New Hampshire Housing Finance Authority
NHMA law lecture #3, Fall 2011
Every three or four years it's time to put recent developments in land use law in perspective. This lecture provides the latest information on legislation affecting the roles, powers and procedures of land use boards and officials and the important decisions of the courts, including the 2011 legislation on residential sprinklers, lot mergers, shoreland protection and more. - Legislature Douses Local Fire Sprinkler Requirements, New Hampshire Town and City, September 2011
The New Hampshire legislature this year passed two bills intended to prohibit municipalities from requiring fire suppression sprinklers in residential dwellings. One of those bills was vetoed by the Governor and is currently awaiting override votes in the House and Senate. Whether that bill ultimately becomes law or not, the ability of municipalities to require sprinklers for new homes has been severely restricted. - Town of Atkinson v. Malborn Realty Trust& a.
Argued: June 13, 2012 Opinion Issued: August 17, 2012
Right to Know Law (RSA 91-A)
- (Also see the subject heading Municipal Records, Retention, Disposition on the Municipal Information page.)
- RSA 91-A Access to Public Records and Meetings
- Attorney General's Office Right-to-Know Memorandum
The New Hampshire Attorney General's Office has updated its comprehensive memorandum on RSA Chapter 91-A, New Hampshire's Right-to-Know Law, 3/20/15 - The New Right to Know Law
- Cordell Johnston, NHMA, presented at the NH Planners Association Annual Meeting November 2008
- New Hampshire's Right To Know Law - RSA Chapter 91-A
- Cordell Johnston, Esq., NHMA, April 2015 (presented at the spring 2015 Planning and Zoning Conference)
- The Right to Know Law - Information from the New Hampshire Municipal Association
- Legal Q & A articles from New Hampshire Town and City published by the New Hampshire Municipal Association
- Non-Public Sessions Under the Right-to-Know Law: Practical Issues
March/April 2016
Non-public sessions under the Right-to-Know Law are addressed in RSA 91-A:3. Although the law identifies the subjects that may be discussed and establishes a procedure for entering non-public session, it leaves many practical questions unanswered. This article addresses some of the practical issues related to non-public sessions. It is not intended to be a thorough discussion of the legal requirements for non-public sessions. - Just Below the Surface:Current Issues under RSA Chapter 91-A
March/April, 2016
With few amendments to RSA Chapter 91-A and no major New Hampshire Supreme Court opinions in 2015, one might think nothing new has been happening with the Right-to-Know Law. Do not be fooled. Over the past year, several of issues of municipal concern regarding public meetings and governmental records have swirled just below the surface in the legislature and the superior courts. These issues are likely to be among those in the forefront in coming months. (Some issues were addressed in the 2016 legislative session - see the Right to Know Law section of the 2016 Legislation page.) - Records Compiled for Enforcement of Statutes, Ordinances and Regulations: To What Extent Are They Exempt from Disclosure?
July/August 2012
Although law enforcement records are not included as such in the list of government records exempt from disclosure under the Right to Know Law, RSA 91-A:5, the New Hampshire Supreme Court has long recognized that certain law enforcement records may be withheld from public disclosure in accordance with the exemption for such records in the federal Freedom of Information Act (FOIA). This exemption has been important for police departments, but until now, of little interest to other municipal officials and employees. Recently, however, in the case of 38 Endicott Street North, LLC v. State Fire Marshal, the Court expressly held that the law enforcement records exemption applies more broadly. The case raises many questions as to what municipal records, other than police department investigatory files, may be withheld from public disclosure as "records compiled for law enforcement purposes." (See this month's Court Update column for a summary of 38 Endicott Street North, LLC v. State Fire Marshal.) - The Inside Scoop on Nonpublic Sessions
June 2012
New Hampshire's Right to Know Law, RSA Chapter 91-A, is a critical statute for local officials and employees to understand. One of the more difficult areas to navigate is nonpublic sessions. Recently, we have received an incredible number of legal inquiries about this subject. Here are some of the most frequently-asked questions about nonpublic sessions. - Right to Know Law: Disclosure of "Draft" Documents
April 2012
A core principle of the Right to Know Law involves the right of citizens to inspect and copy governmental records. Questions often arise about documents and electronic communications that are created as staff and officials study an issue, deliberate about how best to approach the matter, and review and refine language of policies, ordinances, or adjudicative decisions. These documents will likely contain information that is incomplete and language that will ultimately be rejected prior to approval by public bodies. Thus, staff and officials are reluctant to allow this work-in-process information to be circulated, since it could easily be misinterpreted or cause confusion in the community. This short article is about where the legislature and the courts have drawn the line on disclosure, and what information should be shared upon request. - Media Relations and the Right to Know Law
May 2011
On March 18, 2011, members of the New Hampshire Municipal Management Association gathered at the Local Government Center for a panel discussion on media relations and the Right to Know Law. Coordinated by the New Hampshire Local Government Center (LGC) with participation by the New Hampshire Press Association, panelists included Foster's Daily Democrat Executive Editor Rod Doherty, New Hampshire Municipal Association (NHMA) Government Affairs Counsel Cordell Johnston, Orr and Reno Attorney Bill Chapman and Town of Durham Administrator Todd Selig. - Beyond RSA 91-A: How Public Is That Information?, New Hampshire Town and City, April 2009
A lot of information flows through town and city offices in New Hampshire, and a lot of local officials and employees are expected to manage it. Town clerks, tax collectors, selectmen, town managers and administrators, office staff, public safety professionals, land use boards—virtually everyone in local government collects, creates, submits, organizes, uses and/or safeguards information about a variety of topics. Some of this information is public; some of it is not. While most officials and employees have a working knowledge of New Hampshire’s Right to Know Law, RSA Chapter 91-A, it is not the only law affecting the way information must be handled. Many other laws prohibit or limit the release of certain information. How many can you identify? - Local Property Tax Information: Public or Not?
June 2009
In recent months, New Hampshire Town and City articles have examined aspects of New Hampshire's Right to Know Law and other state laws and regulations that require certain information to be made public or kept confidential. Many of the questions we receive involve the confidentiality of local property tax information. While much of that information is public, there are a few important exceptions of which local officials should be aware. - The Not So 'New' Right to Know Law
January 2009
In 2008, the New Hampshire Legislature adopted the most extensive set of amendments to New Hampshire's Right to Know Law (RSA Chapter 91-A) in the statute's 41-year history. At first glance, these amendments can seem a bit unwieldy because of their sheer volume. This has caused some municipal officials to worry that the law has changed in some fundamental way and that local procedures need to be overhauled completely.
- Non-Public Sessions Under the Right-to-Know Law: Practical Issues
- Final Report of the Right to Know Study Commission (Chapter 287, Laws of 2003), October 2004
- Free Speech at Public Meetings - The New Hampshire Right to Know Law
Adapted from a presentation by H. Bernard Waugh, Jr., Esq., SNHPC Planning Board Training Workshop, May 1994. This document continues to remain available given its valuable information found in Section II Does the Public Have a 'Right to Speak' at Public Meetings? and it contains the famous Riggins Rules, a suggestion of the proper decorum and attitude for public officials. RSA 91-A has been amended several times since this presentation so please check the current statute for accuracy.
- Legislation Affecting RSA 91-A, the Right-to-Know Law: (Also see the Right to Know Law section of the 2016 Legislation page)
- HB1223 - relative to remedies under the right-to-know law (Chapter Law 206, 2012)
Effective January 1,2013, the remedy section of the Right to Know law changed in very significant and important ways.
The law that now makes it possible for a court, if it is found that an officer, employee, or other official has violated any provision of the Right to Know law in bad faith, to impose a civil penalty of not less than $250 and not more than $2,000. Such person or persons may also be required to reimburse the public body or public agency for any attorney's fees or costs paid by the public body or public agency in defending a Right to Know law suit.
In addition to the changes in the Right to Know law made in 2012, it is also important to remember that RSA 91-A:8 also allows the award of reasonable attorney's fees and costs incurred as a result of litigation to implement the law. It also allows a court to invalidate an action of a public body or agency taken in violation of the law "if the circumstances justify such invalidation." And lastly, the law empowers the court to enjoin future violations and can require any public officer or employee found to have violated the Right to Know law to undergo appropriate remedial training at their expense. - HB206 - relative to retention of governmental records under the right-to-know law (Chapter Law 299, 2009)
- HB210 – relative to public access to minutes of local land use boards (Chapter Law 49, 2009)
- SB189 – relative to decisions of local land use boards (Chapter Law 266, 2009)
- HB1408 - relative to the right-to-know law (Chapter Law 303, 2008)
- HB1223 - relative to remedies under the right-to-know law (Chapter Law 206, 2012)
- Court Cases Relative to RSA 91-A, the Right to Know Law (See the AG's Office Memorandum above for a more exhaustive review of case law and its impacts on the state's right to know law.)
- Cady v. Deerfield Selectmen
No. 218-2001-EQ-00498, Rockingham County Superior Court, 4/23/2012 - Cameron v. Marlborough Board of Selectmen
No. 213-2011-CV-00337, Cheshire County Superior Court, 2/27/2012 - Thomas Ettinger & a. v. Town of Madison Planning Board
Argued: October 13, 2011 Opinion Issued: December 8, 2011
"Consultations with legal counsel" are not considered "meetings" under RSA Chapter 91-A, New Hampshire's Right to Know Law. RSA 91-A:2, I(b). This is significant because gatherings which are not "public meetings" do not have to follow the ordinary requirements for notice, minutes and public access. This case explores for the first time the boundaries of what a "consultation with legal counsel" is. - Lambert v. Belknap County Convention
, 157 NH 375 (2007) - Regarding filling a vacancy in an elected office
- WMUR Channel Nine v. NH Department of Fish and Game
, 154 NH 46 (2006) - Regarding public right to access
- Hounsell v. North Conway Water Precinct
, 154 NH 1 (2006) - Regarding invasion of privacy
- Lamy v. NH Public Utilities Commission
, 152 NH 106 (2005) - Regarding invasion of privacy
- Hughes v. Speaker of the New Hampshire House of Representatives, 152 NH 276, 290 (2005) - Regarding public right to access
- NHCLU v. City of Manchester, 149 NH 437 (2003) - Regarding governmental records
- Goode v. New Hampshire Office of the Legislative Budget Assistant, 148 NH 551 (2002) - Regarding balancing the competing interests between disclosure and non-disclosure
- Hawkins v. NH Department of Health and Human Services, 147 NH 376 (2001) - Regarding electronic records
- Union Leader Corp. v. New Hampshire Housing Finance Authority, 142 NH 540 (1997) - Regarding access to governmental records
- Webster v. Town of Candia, 146 NH 430 (2001) - Regarding meetings
- Brent v. Paquette, 132 NH 415 (1989) - Regarding note taking and non-disclosure
- Orford Teachers Association v. Watson
, 121 NH 118 (1981) - Regarding non-public sessions
- Gallagher v. Town of Windham, 121 NH 156 (1981) - Regarding proposed construction plans
- Town of Nottingham v. Harvey, 120 NH 889, 894-95 (1980) - Regarding the recess of a meeting until a later date
- Rochester School Board v. NH PELRB, 119 NH 45 (1979) - Regarding salary and contract information
- Lodge v. Knowlton, 118 NH 574, 576 (1978) - Regarding state agencies
- DiPietro v. City of Nashua, 109 NH 174 (1968) - Regarding the level of detail required in meeting minutes
- Duty to Assist Applicants
- Preston T. Kelsey, II & a. v. Town of Hanover
[Argued: May 21, 2008 Opinion Issued: August 20, 2008] 157 NH 632
No constitutional duty to take initiative to educate abutters about project and permit/appeal process. - The Richmond Company, Inc., Individually and as Agent for ATCNH Realty, LLC, v. City of Concord,
Argued: February 12, 2003, Opinion Issued: April 11, 2003
Richmond argued that the planning board did not provide meaningful assistance because it did not comment on or question the substance of the application during the public hearings. The supreme court found that Carbonneau and Savage were aimed at preventing municipalities from ignoring an application or otherwise engaging in dilatory tactics in order to delay a project and that those cases did not involve a board's actions during the public hearing process, in which the board must maintain a certain level of impartiality. Here, the applicant acknowledged that its site plan project received "rigorous review," there was public comment and rebuttal testimony with the applicant filed a detailed letter on the final day the board accepted evidence, addressing issues raised throughout the hearing.
"That the board did not comment on the suitability of the project in response to Richmond's inquiries prior to its deliberative session and vote is neither inappropriate nor unusual since the purpose of the board's deliberative session is to decide the issues."
"In light of the record, we cannot conclude that the board acted unreasonably in this case or that it failed to fulfill its constitutional obligation to provide assistance to its citizens." - Paul Carbonneau v. Town of Rye et al. No. 79-150. Supreme Court of New Hampshire. February 14, 1980 120 NH 96 (NH 1980)
"We strongly suggest that the town of Rye quickly get 'in the business' of attempting to negotiate a workable plan acceptable to both parties. The town's apparent unwillingness to engage in such discussions to date leads us to question seriously whether it is dealing in good faith." - Savage v. Town of Rye, 120 NH 409, (June 12, 1980)
The town planning board failed to approve or disapprove a site plan application within ninety days as prescribed by statute. In rejecting the trial court's reasoning that the board did not have to respond to the application because it was improper in form, the court stated that '[n]ot only is such a reading in direct contravention of the statute, but it is also in violation of NH Const. pt. 1, art. 1.' Id. The court reminded towns that it is their function to provide assistance to their citizens, and that the "measure of assistance certainly includes informing applicants not only whether their applications are substantively acceptable but also whether they are technically in order."
- Preston T. Kelsey, II & a. v. Town of Hanover
- E-mail Communication Between Board Members
- Dealing with E-mail Communication Under New Hampshire's Right to Know Law, New Hampshire Town and City, July/August 2006
- Chapter Law 287, 2003 AN ACT establishing a right-to-know study commission and relative to meetings open to the public.
- Electronic Communications, New Hampshire Town and City, August 2008
Under amendments that became effective in 2008, public bodies may not conduct official business via e-mail. Municipal websites may be used as one of the two places for publicly posting notice of meetings. Electronic records must be made available to the public upon request and must be kept for the same length of time as a paper counterpart. Electronic records are considered "deleted" (and no longer available to the public) when they have been "initially and legally deleted" so that they are no longer readily accessible to the public body itself. This means (a) the record wasn't required to be retained any longer, and (b) it has been deleted and the "trash" or "recycle bin" folder has also been emptied.
- Cady v. Deerfield Selectmen
Scattered and Premature
- § 29.09 Premature and Scattered Subdivision of Land
Adapted from 15 New Hampshire Practice: Land Use Planning and Zoning, Ch. 29, Subdivision, § 29.09 (LexisNexis Matthew Bender) - Scattered or Premature Developments Relative to Site Plan Review
Plan-link posting and reply, October 14, 2011 - Is 'scattered and premature' a valid reason for a planning board to disapprove a development proposal?
Plan-link posting and reply - RSA 674:36,II(a)
Separation Requirements
- Richard Taylor & a. v. Town of Plaistow
Argued: February 9, 2005 Opinion Issued: April 22, 2005
Simplex v. Newington
- Court Establishes New Definition for Variance Hardship
- New Hampshire Town and City, February 2001
- Variance Standard Changes in Simplex
by Ben Frost, Esq. - 2001
- Simplex Technologies, Inc. v. Town of Newington & a.
, NH Supreme Court slip opinion
Solar Skyspace Easements
- RSA 477:49 Definitions
- RSA 477:50 Creation of a Solar Skyspace Easement
- RSA 477:51 Statutory Form of Solar Skyspace Easement
Standing
- Hooksett Conservation Commission v. Hooksett Zoning Board of Adjustment
Argued: June 12, 2002, Reargued: January 14, 2003, Opinion Issued: January 23, 2003
(standing)- Summary of the case
by Ben Frost, January 2003
- Summary of the case
- Arnold Goldstein v. Town of Bedford & a.
Argued: May 10, 2006 Opinion Issued: November 22, 2006
(Standing, person aggrieved)- Summary of the case
from the 2007 Spring Conference, legal update materials by Atty. Tim Bates
- Summary of the case
- Golf Course Investors of NH, LLC v. Jaffrey
Argued: November 10, 2010 Opinion Issued: April 12, 2011
(standing, aggrieved parties)
Selected Supreme Court Decisions [also see the NH Supreme Court slip opinions]
- New Hampshire Court Decisions Affecting Zoning and Land Use Regulations,
OSP, June, 1994
- New Hampshire Supreme Court Land Use Cases
compiled by Atty. Peter J. Loughlin for the 2006 Spring Conference, Track II - Basics for the Zoning Board of Adjustment, Session A - Getting Organized
2017 | 2016 | 2015 | 2014 | 2013 | 2012 | 2011 | 2010 | 2009 | 2008 | 2007 | 2006 | 2005 | 2004 | 2003 | 2002 | 2001 | 2000 | 1995 | 1991 | 1988 | 1980 |
- 2017
- Harriet E. Cady v. Town of Deerfield
Argued: November 16, 2016
Opinion Issued: January 18, 2017In a unanimous decision, the supreme court ruled that that RSA 40:13, IV(c) prohibits only amendments that eliminate a warrant article’s textual subject matter, not amendments that may change the intent or purpose sought to be achieved by the article’s drafters.
- Harriet E. Cady v. Town of Deerfield
- 2016
- CBDA DEVELOPMENT, LLC v. TOWN OF THORNTON
Argued: September 16, 2015 Opinion Issued: April 7, 2016
(the "subsequent application doctrine" applies to the planning board as well as the zoning board of adjustment)- Also see Fisher v. Dover (1980) and Brandt v. Somersworth (2011) below
- One Bite At the Apple Applies to Planning Board Decisions - NHMA Court Update, April 2016
In 2012, the Thornton Planning Board denied CBDA’s site plan application for a recreational campground. In 2013, CBDA submitted another application, and, although the second application addressed some of the board’s concerns from the first site plan, not all issues had been resolved. Therefore, the board determined, under the Fisher doctrine, that it could not consider the subsequent application because it did not materially differ in nature and degree from the first application.
- CBDA DEVELOPMENT, LLC v. TOWN OF THORNTON
- 2015
- MERRIAM FARM, INC. v. TOWN OF SURRY
Argued: June 24, 2015 Opinion Issued: September 22, 2015
("claim preclusion" a.k.a. "res judicata", building permit denial did not preclude a subsequent variance request) - STEPHEN E. FORSTER D/B/A FORSTER'S CHRISTMAS TREE FARM & GIFT SHOPPE v. TOWN OF HENNIKER
Argued: February 19, 2015 Opinion Issued: June 12, 2015- [Plan-link] NH Supreme Court Weighs In on Agritourism
- Plan-link discussion thread, June 2015
- Forster v. Town of Henniker: Agritourism and New Hampshire’s Changing Farms - Atty. Eric Maher, DTC Lawyers, July 24, 2015
- Forster’s Christmas Tree Farm v. Town of Henniker - "Agritourism" is not "Agriculture" - NHMA Court Update, June 2015
- Forster v. Town of Henniker
- by Susan Slack, from The Granite State Planner, Summer 2015 - newsletter of the New Hampshire Planners Association
- [Plan-link] NH Supreme Court Weighs In on Agritourism
- ACCURATE TRANSPORT, INC. & a. v. TOWN OF DERRY
Argued: April 22, 2015 Opinion Issued: August 11, 2015
(timeliness of appeal of administrative decision to the ZBA, difference between an "opinion" and a "decision")- ZBA Did Not Exceed Authority by "Converting" Appeal (NHMA summary)
- MERRIAM FARM, INC. v. TOWN OF SURRY
- 2014
- DARYL DEMBIEC & a. v. TOWN OF HOLDERNESS
Argued: May 15, 2014 Opinion Issued: November 13, 2014 - K.L.N. CONSTRUCTION COMPANY, INC. & a. v. TOWN OF PELHAM
Argued: March 5, 2014 Opinion Issued: December 10, 2014
(Whether developers had standing to challenge the Town’s retention of the impact fees, and whether the Town had authority to adopt its impact fee ordinance.)- DTC Successful in NH Supreme Court’s Interpretation of Impact Fee Ordinance - Atty. Katherine B. Miller, DTC Lawyers, March 4, 2015
- Town Impact Fee Ordinance May Dictate Fee Refunds be Paid to Current Property Owner (NHMA summary)
- DARYL DEMBIEC & a. v. TOWN OF HOLDERNESS
- 2013
- Stephen Bartlett & a. v. City of Manchester
Argued: January 10, 2013 Opinion Issued: February 25, 2013
(Determining if a project needs a variance or if it is a lawful accessory use, develop a full and clear record.)- Applicant for a Variance Need Not Affirmatively Plead the Threshold Question of Whether Variance Is Necessary; Trial Court Must Consider It when Ruling on Variance Issues (NHMA summary)
- BARTLETT v. CITY OF MANCHESTER, 164 NH 634 (2013) (No good deed goes unpunished)
From 2014 Municipal Law Lecture Series Lecture #1 - The Zoning Board of Adjustment in New Hampshire, Part Two - The ZBA - Defender of the Constitution by Anna Barbara Hantz, Esq., Sheehan Phinney Bass & Green
- Steve Trefethen & a. v. Town of Derry
Submitted: February 7, 2013 Opinion Issued: April 12, 2013
(Timeliness of an appeal when the last day to file falls on a weekend or holiday.)- Summary of the case
(April 15, 2013 Plan-link posting)
- RSA 21:35, II Provision Regarding Filing Dates Applies to Appeals from ZBA Decisions (NHMA summary)
- Summary of the case
- Town of Bartlett Board of Selectmen v. Town of Bartlett Zoning Board of Adjustment
Argued: February 13, 2013 Opinion Issued: April 12, 2013
(Define words carefully; what issues can be properly raised on appeal to the court.)- Summary of the case
(April 16, 2013 Plan-link posting)
- Sign Case Highlights Process Used in Court Review of ZBA Decision (NHMA summary)
- Summary of the case
- Hannaford Brothers Company v. Town of Bedford
& a.
Argued: January 10, 2013 Opinion Issued: April 25, 2013
(Evaluating the four factors to determine standing:
(1) the proximity of the challenging party's property to the subject site;
(2) the type of change proposed;
(3) the immediacy of the injury claimed; and
(4) the challenging party's participation in the administrative hearings and whether the appealing party has a direct, definite interest in the outcome of the proceeding.) - Charles A. Roberts v. Town of Windham
Argued: May 9, 2013, Opinion Issued: July 16, 2013
(Involuntary Merger - this case points out that the placement and use of buildings and the driveway matter in the determination of whether or not lots have been voluntarily merged and thus not available to be unmerged under 674:39-aa.) - Town of Newbury v. Steven P. Landrigan & a.
Argued: April 11, 2013 Opinion Issued: August 21, 2013
(The common law docterine of merger by conduct is alive and well. "(o)wners can effectuate a merger of contiguous, non-conforming lots, independent of any town ordinance, 'by behavior which results in an abandonment or abolition of the individual lot lines.'" Robillard, 120 N.H. at 479 (quotation omitted). The treatment of adjacent nonconforming lots by predecessors in title matters in determining if lots have been merged into one.)- Adjacent Lots May Be Deemed Merged by Conduct (NHMA summary)
- Stephen Bartlett & a. v. City of Manchester
- 2012
- Harborside Associates, L.P. v. Portsmouth
Argued: February 15, 2012 Opinion Issued: March 23, 2012, No. 2011-236
(site plan review, vested rights)- Amendment to site plan negates vested rights (NHMA summary)
- Property Portfolio Group, LLC v. Derry
Submitted: June 13, 2012 Opinion Issued: June 29, 2012
- Court upholds planning board's site plan regulation waiver (NHMA summary)
- Bosonetto v. Richmond
Argued: February 16, 2012 Opinion Issued: June 29, 2012
(statutory deadlines in land use appeals)
- Harborside Associates, L.P. v. Portsmouth
- 2011
- Golf Course Investors of NH, LLC v. Jaffrey
Argued: November 10, 2010 Opinion Issued: April 12, 2011
(standing, aggrieved parties) - 1808 Corporation v. Town of New Ipswich
Argued: February 16, 2011 Opinion Issued: April 26, 2011 - Limited Editions Properties, Inc. v. Town of Hebron
Argued: June 16, 2011 Opinion Issued: September 22, 2011 No. 2010-586
(PB procedures, preliminary approval)- Developer not entitled to preliminary subdivision approval before pursuing state and federal permits (NHMA summary)
The petitioner applied to the Hebron Planning Board (Board) for approval to develop a 20-lot subdivision on a lot which was large, but contained steep slopes. The proposed access road would be 2,600 feet in length, with a 10 percent grade for about 1,600 to 1,700 feet, and would have a "switch back" with a 150-foot curve radius. Construction of the road would include creating three substantial retaining walls, topped with a six-foot metal fence. The petitioner requested that the Board grant preliminary conditional approval of the plan's "overall concept" before the petitioner sought required state and federal permits.
- Developer not entitled to preliminary subdivision approval before pursuing state and federal permits (NHMA summary)
- Harborside Associates, L.P. v Parade Residence Hotel
Argued: June 9, 2011 Opinion Issued: September 22, 2011- Case Review – Harborside Associates v. Parade Residence Hotel
- Granite State Planner, Fall 2011
- First Supreme Court variance decision since recodification of RSA 674:33 (NHMA summary)
- Case Review – Harborside Associates v. Parade Residence Hotel
- Brandt Development Company of NH, LLC v. City of Somersworth
Argued: June 9, 2011 Opinion Issued: October 12, 2011 No. 2010-641- A change in the legal criteria to obtain a variance is a 'material change of circumstances' (NHMA summary)
It is well settled that a zoning board, having rejected one variance application, may not review subsequent applications for the same project absent a material change of circumstances affecting the merits of the application. This rule was set forth in the 1980 case of Fisher v. Dover, 120 N.H. 187. The rule exists because zoning boards should not be required to reconsider an application based on the occurrence of an inconsequential change, when the board inevitably will reject the application for the same reasons as the initial denial. In New Hampshire, successive variance proposals must demonstrate either (1) material changes in the proposed use of the land or (2) material changes in the circumstances affecting the merits of the application. This case involves the second factor - material changes in circumstances.
- A change in the legal criteria to obtain a variance is a 'material change of circumstances' (NHMA summary)
- Golf Course Investors of NH, LLC v. Jaffrey
- 2010
- Pike Industries, Inc. & A. v. Brian Woodward &a.
Argued: January 13, 2010 Opinion Issued: May 7, 2010 - William Batchelder & a. v. Town of Plymouth Zoning Board of Adjustment
Argued: January 20, 2010 Opinion Issued: May 7, 2010 - Hill-Grant Living Trust v. Kearsarge Lighting Precinct
Argued: September 24, 2009 Opinion Issued: December 16, 2009 - Judy Atwater & a. v. Town of Plainfield
Argued: January 20, 2010 Opinion Issued: July 20, 2010 - City of Portsmouth v. James Boyle, Trustee, 150 Greenleaf Avenue Realty Trust
Argued: April 8, 2010 Opinion Issued: July 20, 2010, No. 2009-544 - Janet and Peter Saunders v. Town of Kingston
Argued: January 13, 2010 Opinion Issued: July 23, 2010
- Pike Industries, Inc. & A. v. Brian Woodward &a.
- 2009
- Dovaro 12 Atlantic, LLC v. Town of Hampton
Argued: November 19, 2008 Opinion Issued: January 9, 2009
(This opinion provides further refinement to the law of nonconforming uses and illustrates the importance of presenting relevant facts in a land use case at the earliest possible time.) - Continental Paving, Inc. & a. v. Town of Litchfield
Argued: February 18, 2009 Opinion Issued: April 9, 2009
(Special exception, validity of expert testimony, ZBA members personal knowledge.)- For Scientific or Technical Issues, Zoning and Planning Boards May Now Require
Case Specific Expert Evidence to Substantiate Decisions(BCM Environmental & Land Law, PLLC)
- Applicant's Expert Opinions Outweigh Audubon Fact Sheet (NHMA summary)
- For Scientific or Technical Issues, Zoning and Planning Boards May Now Require
- Dovaro 12 Atlantic, LLC v. Town of Hampton
- 2008
- Churchill Realty Trust v. City of Dover Zoning Board of Adjustment
- No. 2007-043, 1/15/2008
- Naser Jewelers, Inc. v. City of Concord - U.S. Court of Appeals, 1st Circuit, No. 07-2098, 1/18/2008
- Omnipoint Communications, Inc. v. City of Nashua - U.S. District, D.N.H., CV-07-46-PB, 2/6/2008
- Tonneson v. Town of Gilmanton
- No. 2007-202, 3/13/2008
- Johnson et al. v. Town of Wolfeboro et al.
- No 2007-653, 4/4/2008
- McNamara et al. v. Hersh et al.
- No. 2007-225, 4/4/2008
- Barry O. Upton v. Town of Hopkinton
- No. 2007-574, 4/8/2008
- Community Resources for Justice, Inc. v. City of Manchester
- No. 2007-646, 4/18/2008
- Town of Amherst v. Rosemary A. Gilroy
- No. 2006-694, 5/20/2008
- Robert E. Naser d/b/a Ren Realty v. Town of Deering Zoning Board of Adjustment
- No. 2007-620, 5/22/2008
- Nine A, LLC v. Town of Chesterfield
- No. 2007-475, 6/3/2008
- Derry Senior Development, LLC v. Town of Derry
- No. 2007-569, 7/2/2008
- Christopher Bennett et al v. Town of Hampstead
- No. 2007-662, 7/11/2008
- Ryder Daniels et al. v. Town of Londonderry et al.
- No. 2008-047, 7/15/2008
- Preston T. Kelsey, II & a. v. Town of Hanover
Argued: May 21, 2008 Opinion Issued: August 20, 2008 157 NH 63
(no constitutional duty to take initiative to educate abutters about project and permit/appeal process.) - Guy v. Town of Temple
- No. 2007-784, 8/21/2008
- Ouellette et al. v. Town of Kingston
- No. 2007-589, 8/15/2008
- Churchill Realty Trust v. City of Dover Zoning Board of Adjustment
- 2007
- Community Resources For Justice, Inc. v. City of Manchester
Argued: November 14, 2006 Opinion Issued: January 24, 2007 - Property Portfolio Group, LLC v. Town of Derry
- No. 2005-867, 1/24/2007
- McKenzie v. Town of Eaton Zoning Board of Adjustment
- No. 2005-778, 1/31/2007
- Blagbrough Family Realty Trust v. A&T Forest Products, Inc. & a.
- No. 2005-669, 2/28/2007
- Building Permit for Class VI Road Lot Upheld (NHMA summary)
- Building Permit for Class VI Road Lot Upheld (NHMA summary)
- Malachy Glen Associates, Inc. v. Town of Chichester
Argued: January 5, 2007 Opinion Issued: March 20, 2007
(Area variance, variance request cannot be used as a reason to deny the variance, substantial justice.) - Kalil v. Town of Dummer ZBA
- No. 2006-381, 4/19/2007
- Severance v. Town of Epsom
- No. 2005-868, 5/1/2007
- Town of Rye Board of Selectmen v. Town of Rye Zoning Board of Adjustment
- No. 2006-598, 6/26/2007
- Doyle v. Town of Gilmanton
- No. 2006-797, 7/19/2007
- Philip Auger & a. V. Town of Strafford &a.
Argued: May 10, 2007 Opinion Issued: August 23, 2007
(Waivers must meet the standards on the subdivision regulations, meeting attendance consistency.)- Summary of the case
Ben Frost Plan-link posting December 31, 2007
- Board's Preference Not a Substitute for ‘Undue Hardship or Injustice' (NHMA summary)
- Summary of the case
- 74 Cox Street, Llc & a. v. City of Nashua & a.
Argued: June 7, 2007 Opinion Issued: September 21, 2007
(Land use boards can reconsider their own decisions, failed motion for rehearing [lack of a second] constitutes denial.)- Summary of the case
Ben Frost Plan-link posting September 22, 2007
- Supplement to the NHMA Law Lecture #3, Fall 2007, Legal Issues for Land Use Board Members
- ZBA Has Inherent Authority to Reconsider a Denial of a Request for Rehearing within the 30-day Appeal Period (NHMA summary)
- Summary of the case
- Judy Atwater & a. v. Town of Plainfield
- No. 2006-915, 9/28/2007
- Carlson's Chrysler v. City of Concord
Argued: April 3, 2007 Opinion Issued: November 8, 2007
(Electronic signs, commercial speech.)- Summary of the case
Ben Frost Plan-link posting November 9, 2007
- Companion article
about the First Circuit Federal Court of Appeals case Naser Jewelers, Inc. v. City of Concord, by Ben Frost for the NHPA and NNECAPA newsletters
- Banning Electronic Changeable Copy Signs Under Zoning Is Valid Restriction on Commercial Free Speech (NHMA summary)
- Summary of the case
- Community Resources For Justice, Inc. v. City of Manchester
- 2006
- Stanley Colla & a. v. Town of Hanover
Submitted: November 16, 2005 Opinion Issued: January 27, 2006
(Adequacy of motion for rehearing.)- Rehearing Motion Satisfies Statute's Requirement (NHMA summary)
- Simpson Development Corporation v. City of Lebanon - No. 2005-207, 5/17/2006
- Conditional Approval of Site Plan Not Final Approval (NHMA summary)
- Conditional Approval of Site Plan Not Final Approval (NHMA summary)
- Weare Land Use Association v. Town of Weare - No. 2004-849, 5/18/2006
- Interim Growth Management Ordinance Held Valid (NHMA summary)
- Interim Growth Management Ordinance Held Valid (NHMA summary)
- K & B Rock Crushers, LLC & a. v. Town of Auburn - No. 2005-211, 5/19/2006
- Boulders at Strafford, LLC v. Town of Strafford
Strafford No. 2005-140, June 13, 2006
- Plan-link posting and reply
, June 2006
- Court Clarifies Rational Basis Test Applied to Validity of Municipal Ordinances (NHMA summary)
- Plan-link posting and reply
- Joseph Thomas & a. v. Town of Hooksett
Argued: March 8, 2006, Opinion Issued: July 20, 2006
(Vesting, "active and substantial building and development", 674:39.)- Plan-link discussion, July 2006
- Property Owner's Reliance on Municipal Officials' Mistake Not Reasonable (NHMA summary)
- Robert L. Garrison & a. v. Town of Henniker
Argued: March 9, 2006 Opinion Issued: August 2, 2006
(Unnecessary hardship, expert testimony, sufficiency of evidence of the uniqueness of the property.)- Just What is 'Unique': The NH Supreme Court's Most Recent Variance Decision
, by Christopher L. Boldt, Esq., Donahue, Tucker, & Ciandella, PLLC
- Further Clarification of the Test for a Use Variance (NHMA summary)
- Just What is 'Unique': The NH Supreme Court's Most Recent Variance Decision
- Arnold Goldstein v. Town of Bedford & a.
Argued: May 10, 2006 Opinion Issued: November 22, 2006
(Standing, person aggrieved)- Summary of the case
from the 2007 Spring Conference, legal update materials by Atty. Tim Bates
- Resident Taxpayer Status Is Not Enough for Standing to Sue Town (NHMA summary)
- Summary of the case
- Michelle J. Robinson v. Town of Hudson
Argued: September 13, 2006 Opinion Issued: December 20, 2006
(ZBA can impose variance conditions.)- Court Upholds Variance Conditions (NHMA summary)
- Property Portfolio Group, LLC v. Town of Derry - No. 2005-867, 12/21/2006
- Planning Board's Expedited Site Review Process Upheld (NHMA summary)
- Planning Board's Expedited Site Review Process Upheld (NHMA summary)
- Stanley Colla & a. v. Town of Hanover
- 2005
- Leonard Vigeant v. Town of Hudson
Argued: September 23, 2004 Opinion Issued: February 23, 2005
(Use and area variances.)- Plan-link posting
, by Ben Frost, March 9, 2005
- Court Interprets Area Variance Standard (NHMA summary)
- Plan-link posting
- 47 Residents of Deering, N.H. v. Town of Deering; Carroll Greene v. Town of Deering - No. 2004-256, 3/3/2005
- Court Overturns ZBA's Interpretation of Junkyard Ordinance (NHMA summary)
- Court Overturns ZBA's Interpretation of Junkyard Ordinance (NHMA summary)
- John R. Harrington & a v. Town of Warner
Argued: December 9, 2004 Opinion Issued: April 4, 2005
(Use and area variances.) - Richard Taylor & a. v. Town of Plaistow
Argued: February 9, 2005 Opinion Issued: April 22, 2005 - DHB, Inc. v. Town of Pembroke, No. 2004-397, June 14, 2005
- McDonald v. Town of Effingham Zoning Board of Adjustment - No. 2004-453, 5/6/2005
- Court Issues Procedural Advice to ZBAs (NHMA summary)
- Court Issues Procedural Advice to ZBAs (NHMA summary)
- Chester Rod and Gun Club, INC. v. Town of Chester
Argued: May 10, 2005 Opinion Issued: September 2, 2005 - Frank Caparco & a. v. Town of Danville, Norma Drowne & a. v. Town of Sandown
Argued: June 22, 2005 Opinion Issued: November 15, 2005
(Impact fees can be adjusted.) - Town of Hinsdale v. Town of Chesterfield - No. 2004-802, 12/29/2005
- Leonard Vigeant v. Town of Hudson
- 2004
- Maureen Bacon v. Town of Enfield
Argued: June 12, 2003, Opinion issued: January 30, 2004
(This is a deliciously complex opinion that addresses (though does not necessarily clarify) some of the aspects of hardship delineated three years ago in Simplex v. Newington.)- Confusion Over the Application of the Simplex Unnecessary Hardship Standard (NHMA summary)
- Plan-link posting
, by Ben Frost summarizing the case, February 3, 2004 and a reply by by Neil Faiman, Chairperson, Wilton ZBA, February 3, 2004 and a final reply by Ben Frost, February 10, 2004
- Lower Bartlett Water Precinct v. Rick Murnik & a. - No. 2004-161, 3/31/2004
- Ernest M. Cherry, Jr. & A. v. Town of Hampton Falls & a.
Argued: October 9, 2003, Reargued: March 10, 2004, Opinion Issued: April 16, 2004
(Planning boards and applicants must work together - it is a two-way street. Municipalities may adopt more restrictive wetlands rules because the statute specifically states that DES rules shall serve as a minimum.)- Plan-link posting
, by Ben Frost summarizing the case, April 19, 2004
- Plan-link posting
- Town of Lyndeborough v. Boisvert Properties, LLC & a.
Argued: February 11, 2004, Opinion Issued: April 21, 2004
(Municipalities are not preempted by state law from regulating OHRV/ATV [Off-Highway Recreational Vehicle/All Terrain Vehicle] use on private property.)- Plan-link posting
, by Ben Frost summarizing the case, April 21, 2004
- Town Site Plan Authority Not Preempted by OHRV Statute (NHMA summary)
- Plan-link posting
- Town of Merrimack v. David W. McCray (Norman Carr, Intervenor) - No. 2003-484, 4/21/2004
- Thomas Ireland v. Town of Candia
Argued: March 11, 2004, Opinion Issued: May 17, 2004
(Timeliness of filing a Motion for Rehearing.)- Plan-link posting
, by Ben Frost summarizing the case, May 17, 2004
- 30-day Deadline Includes Day of Day of ZBA Decision (NHMA summary)
- Plan-link posting
- Summa Humma Enterprises, LLC d/b/a MB Tractor v. Town of Tilton & a.
Argued: March 11, 2004, Opinion Issued: May 24, 2004
(Authority of the planning board in conducting site plan review.)- Plan-link posting
, by Ben Frost summarizing the case, May 24, 2004
- Condition of Approval ‘Reasonably Related' to Purpose of Site Review Regulation (NHMA summary)
- Plan-link posting
- Michael Boccia & a. v. City of Portsmouth & a.
Argued: March 11, 2004 Opinion Issued: May 25, 2004
(Use and area variances)- Plan-link posting
, by Ben Frost summarizing the case, May 25, 2004
- Court Establishes New Test for ‘Area' Variances (NHMA summary)
- Plan-link posting
- Russell Shopland & a. v. Town of Enfield
Argued: October 8, 2003 Opinion Issued: July 15, 2004 - Laura Fox v. Town of Greenland; Town of Newington v. Town of Greenland - No. 2004-103, 12/29/2004
- Maureen Bacon v. Town of Enfield
- 2003
- Bonnita Rancourt & A. v. City of Manchester
Submitted: November 21, 2002 Opinion Issued: January 10, 2003
(relative to the 5 part variance test)- Summary of the case
, by Ben Frost, January 2003
- ‘Special Conditions' for Variance Are Property's ‘Unique Setting' (NHMA summary)
- Summary of the case
- A.D. McKibbin v. City of Lebanon - No. 2001-742, 1/21/2003
- Evidence Supported ZBA Decision (NHMA summary)
- Evidence Supported ZBA Decision (NHMA summary)
- Hooksett Conservation Commission v. Hooksett Zoning Board of Adjustment
Argued: June 12, 2002, Reargued: January 14, 2003, Opinion Issued: January 23, 2003
(standing)- Summary of the case, by Ben Frost, January 2003
- Conservation Commission Has No Standing to Appeal ZBA Decision (NHMA summary)
- Michelle J. Robinson v. Town of Hudson - No. 2001-671, 3/14/2003
- Procedure Clarified for ZBA Appeals (NHMA summary)
- Procedure Clarified for ZBA Appeals (NHMA summary)
- The Richmond Company, Inc. v. City of Concord - No. 2002-314, 4/11/2003
- Court Reaffirms Municipalities' Duty to Assist Applicants (NHMA summary)
- Court Reaffirms Municipalities' Duty to Assist Applicants (NHMA summary)
- Route 12 Books and Video v. Town of Troy - No. 2002-483, 6/9/2003
- Smagula v. Town of Hooksett
Argued: July 9, 2003, Opinion Issued: August 25, 2003
(In this interesting case, the Supreme Court has clarified some ambiguities surrounding the problems of zoning amendment protest petitions under RSA 675:5.)- Plan-link posting
, by Ben Frost summarizing the case, August 2003
- Protest Petition Signers Not Limited to Town Property Owners (NHMA summary)
- Plan-link posting
- Bayson Properties, Inc. v. City of Lebanon - No. 2002-538, 10/24/2003
- Bonnita Rancourt & A. v. City of Manchester
- 2002
- New Hampshire Department of Resources and Economic Development v. E. Milton Dow and E. Milton Dow d/ba/ Dow Sand and Gravel
Argued: March 7, 2002, Opinion Issued: July 17, 2002- Summary of the case, by Ben Frost, July 17, 2002
- Heartz v. Concord
Argued: June 5, 2002 Opinion Issued: September 17, 2002- Summary of the case
, by Ben Frost, September 2002
- Summary of the case
- Gregory Rallis v. Town of Hampton Planning Board
Opinion Issued: February 7, 2001- Plan-link question about amendments to regulations and submission of applications
with a response and summary of the case, by Ben Frost, October 2002
- Plan-link question about amendments to regulations and submission of applications
- William Tidd v. Town of Alton
Argued: January 3, 2002 Opinion Issued: October 11, 2002- Summary of the case
, by Ben Frost, October 2002
- Summary of the case
- AWL Power, Inc. v. City of Rochester
Argued: October 17, 2002 Opinion Issued: December 9, 2002
(relative to "substantial completion" of projects and RSA 674:39)- Summary of the case
, by Ben Frost, December 2002
- Calculating Substantial Construction Not As Easy As You Think (NHMA summary)
- Summary of the case
- Henry Torromeo & MDR Corporation v. Fremont
Argued: July 11, 2002 Opinion Issued: December 13, 2002
(relative to growth management and the adoption of a CIP)- Summary of the case
, by Ben Frost, December 2002
- No Damages for Procedurally Defective Ordinance (NHMA summary)
- Summary of the case
- Monahan-Fortin Properties v. Hudson
Argued: October 17, 2002 Opinion Issued: December 24, 2002
(relative to properties being subjected to both a growth management ordinance and an impact fee ordinance)- Summary of the case
, by Ben Frost, December 2002
- Growth Management Ordinance Effective Where No Impact Fee Assessed (NHMA summary)
- Summary of the case
- R.J. Moreau Companies, Inc. v. Litchfield
Argued: November 13, 2002 Opinion Issued: December 24, 2002
(relative to changes to an impact fee assessment schedule)- Summary of the case
, by Ben Frost, December 2002
- Impact Fee Protected by Vesting Statute (NHMA summary)
- Summary of the case
- New Hampshire Department of Resources and Economic Development v. E. Milton Dow and E. Milton Dow d/ba/ Dow Sand and Gravel
- 2001
- Simplex Technologies, Inc. v. Town of Newington & a. January 29, 2001
- Variance Standard Changes in Simplex
, by Ben Frost, Esq. - 2001
- Variance Standard Changes in Simplex
- Thomas Morgenstern v. Town of Rye
Argued: September 19, 2001, Opinion Issued: April 15, 2002 (vesting of nonconforming lots)- Summary of the case
, by Ben Frost, April 2001
- Summary of the case
- Simplex Technologies, Inc. v. Town of Newington & a. January 29, 2001
- 2000
- Edwin and Stephanie Simonsen v. Town of Derry, November 15, 2000
- Excerpt
from LGC Law Lecture #1, Fall 2005: Off-site Exactions and Impact Fees: Balancing Municipal Interests and Private Property Rights outlining the history leading up to Simonsen and the resulting legislation SB 414 (Ch. 199 of 2004) amending RSA 674:21.
- Excerpt
- Edwin and Stephanie Simonsen v. Town of Derry, November 15, 2000
- 1995
- Thomas P. Quirk d/b/a Friendly Beaver Campground v. Town of New Boston 140 NH 124; 663 a.2d 1328; 1995 NH Lexis 116 no. 94-100, August 14, 1995
- 1991
- Wayne Britton & a. v. Town of Chester
, July 24, 1991
- The Chester Court Case
, by Jim Rollins, State Planning News, August/September 1991
- Affordable Housing: NH Supreme Court Issues Its First 'Exclusionary Zoning' Decision, H. Bernard Waugh, Jr., Staff Attorney, NH Municipal Association, August 1991
- The Chester Court Case
- Wayne Britton & a. v. Town of Chester
- 1988
- New London Land Use Assoc. v. New London Zoning Board, 130 NH 510, 1988
- Part 4. Changes and Expansions of Grandfathered Uses [or: 'Old Man, New Tricks']
from the 2015 NHMA Law Lecture #1 - Grandfathering: The law of Non-Conforming Uses & Vested Rights by Bernie Waugh, Esquire, Gardner Fulton & Waugh PLLC and Adele Fulton, Esquire, Gardner Fulton & Waugh PLLC
- Part 4. Changes and Expansions of Grandfathered Uses [or: 'Old Man, New Tricks']
- New London Land Use Assoc. v. New London Zoning Board, 130 NH 510, 1988
- 1980
- Fisher v. City of Dover, 120 N.H. 187 (1980)
- "When a material change of circumstances affecting the merits of the application has not occurred or the application is not for a use that materially differs in nature and degree from its predecessor, the board of adjustment may not lawfully reach the merits of the petition. If it were otherwise, there would be no finality to proceedings before the board of adjustment, the integrity of the zoning plan would be threatened, and an undue burden would be placed on property owners seeking to uphold the zoning plan."
- Carbonneau v. Rye, 120 N.H. 96, 411 A.2d 1110 (1980)
- § 32.17 Obligation of Planning Board to Work With Applicant - (From Loughlin, 15 New Hampshire Practice: Land Use Planning and Zoning, Ch. 32, Planning Board Procedures on Plats, §32.17 (LexisNexis Matthew Bender) (Fourth Edition)
- Fisher v. City of Dover, 120 N.H. 187 (1980)
Takings (Inverse Condemnation)
- Law Lecture #1, Fall 2009 - Constitutional Issues in Land Use Regulation
Presenters: Attorney Judith E. Whitelaw, Mitchell Municipal Group, PA
Attorney Laura A. Spector, Mitchell Municipal Group, PA
All land use control ordinances and regulations and decisions of land use boards are subject to challenge under various Constitutional guarantees, including equal protection of the laws, due process of law, free speech and prevention of taking without just compensation. In recent years the New Hampshire Supreme Court and federal courts have issued several important decisions that modify these doctrines as they apply to land use control. This lecture will review the law, examine recent developments and explain the measures municipal officials can take to assure that their regulations and decisions meet current Constitutional standards. - J.K.S. Realty, LLC & a. v. City of Nashua
Argued: April 5, 2012 Opinion Issued: October 10, 2012
(City did not take property by inverse condemnation as a result of a prolonged government planning process and delayed condemnation proceedings.) - Koontz v. St. Johns River Water Management District
Certiorari to the Supreme Court of Florida
No. 11–1447. Argued January 15, 2013 - Decided June 25, 2013
By a 5-4 margin, the court held that monetary "in lieu" payment requirements as conditions of approval (or as in Koontz, as basis for denial if the applicant refuses to pay) are subject to the Nollan and Dolan rational nexus and rough proportionality tests under the takings clause of the 5th Amendment. The opinion is substantially more complex than just that, and there is brewing debate over the breadth of its impact.- A Legal Blow to Sustainable Development, Vermont Law School's John Echeverria's NY Times Op-Ed
- How the Supreme Court Made It Harder to Prepare for Climate Change, Lincoln Institute's Anthony Flint in Atlantic Cities
- US upreme Court Hands Down Koontz Case, posted by Patricia Salkin, July 1, 2013, on LAW OF THE LAND - A blog on land use law and zoning
- Details: Koontz v. St. Johns River Water Management District, SCOTUSBlog
- Supreme Court Expands Takings Test, APA
- PowerPoint slides of the July 17, 2013, APA webinar "The State of Takings After Koontz" are available on request from planningwebcast@yahoo.com. The recording will be on YouTube - search Planning Webcast Series.
Tax Maps
- RSA 31:95-a Tax Maps
Vesting
- (Also see the Nonconforming Uses subject heading on the Land Use Boards and Municipal Officials page)
- RSA 674:39 Five-Year Exemption
- Temporary Extended Vesting
- 2009 Chapter 93 (SB 93) and Five-Year Exemption - 2011 Chapter 215 (SB 144) from Land Use Law Update, NHMA law lecture #3, Fall 2011
- SB 414
(2004)
SB 414 reorganizes and amends RSA 674:39 (four-year exemption and vesting of development rights), changes how impact fees are administered, reverses the impact of the Supreme Court's decision in Simonsen v. Derry, and explicitly authorizes waiver of subdivision regulations. - Approved subdivision plan, yet to be recorded - Deadline?
- Plan-link posting and replies, August 2012
- A question regarding 'grandfathered' applications
- Plan-link posting and replies, September 2012
- Vesting
- Plan-link posting and replies, April 2015