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Laws, Rules, Cases

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

back to topAnnual Legal Updates

back to topBuilding 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 pdf fileoutlining 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 pdf file - a summary by the National Center for Healthy Housing
  • NH Building and Fire Codes Factsheet pdf file
  • 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.

back to topCombining Subdivision and Site Plan Review Regulations

back to topEnforcement/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 pdf file, 2001 , NH Bar Association
  • Your Guide to the New Hampshire Courts pdf file
    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 pdf file
      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.

back to topFences

Home-rule/Dillon's Ruleback to top

[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 pdf filea century after this constitutional provision was adopted; the last serious attempt to amend the NH constitution with a home rule provision was in 2000.

back to topLegal Questions and Answers

back to topMerger (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? pdf file
  • F. The Steps For Analyzing A 'Merger' Case pdf file- 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) pdf file, 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 (Provided with expressed permission.)
  • Charles A. Roberts v. Town of Windham pdf file
    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. pdf file
    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 pdf file

Legislationback to top

back to topNonconforming Uses

back to topPreemption and Governmental Immunity

  • Is the town ordinance prempted? pdf file
    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? pdf file- NHMA Law Lecture #2, Fall 1997
  • §2.13 Applicability of Zoning to Governmental Entities pdf file, NHP vol. 15, Land Use, Planning and Zoning, Atty. Peter J. Loughlin, Third Ed., 2000
  • Town of Carroll v. William Rines pdf file
    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 pdf file
    Argued: June 13, 2012 Resubmitted: December 7, 2012 Opinion Issued: January 30, 2013
    Municipal zoning still applies to State-permit exempt excavations (NHMA summary)

back to topOfficial Ballot Law (RSA 40:13) (SB2)

  • SB2 at 5: Bonds, Ballots, and the "Deliberative Session" pdf file
    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.

back to topReckoning

back to topRecording of Plats

back to topReligious Land Use and Institutionalized Persons Act (RLUIPA)

back to topResidential Sprinklers

back to topRight 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 pdf file
    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 pdf file- Cordell Johnston, NHMA, presented at the NH Planners Association Annual Meeting November 2008
  • New Hampshire's Right To Know Law - RSA Chapter 91-A pdf file- 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.
  • 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 pdf file
    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 pdf file, 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)
  • 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 pdf file
      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 pdf file, 157 NH 375 (2007) - Regarding filling a vacancy in an elected office
    • WMUR Channel Nine v. NH Department of Fish and Game pdf file, 154 NH 46 (2006) - Regarding public right to access
    • Hounsell v. North Conway Water Precinct pdf file, 154 NH 1 (2006) - Regarding invasion of privacy
    • Lamy v. NH Public Utilities Commission pdf file, 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 pdf file, 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 pdf file
        [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."
    • 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.

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back to topSelected Supreme Court Decisions [also see the NH Supreme Court slip opinions]

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back to topTakings (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 pdf file
    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 pdf file
    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.

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