Planning Board Frequently Asked Questions

Frequently asked questions relative to Planning boards in New Hampshire.

(also see The Planning Board in New Hampshire: A Handbook for Local Officials)

When is a subdivision or site plan application which has been "formally accepted" by the planning board grandfathered from any proposed amendments to a zoning ordinance or subdivision/site plan review regulations?

Can the public hearing be held at the same Planning Board meeting when a subdivision or site plan application is accepted as complete?

Does a Planning Board have the authority to approve a subdivision or site plan with frontage only on a Class VI road?

How does a Class VI road get changed to Class V?

What about construction of a single family home on a Class VI road?

When should a Planning Board grant a waiver of its regulations?

How should the Planning Board handle an application which is incomplete?

Does the State regulate fences?

How does a town handle a situation where a resident holds yard sales so often that it might be classified as a home occupation?

Is there a State building code?

When a Planning Board is voting, do you count the number of members present (the quorum) or the total number of members to determine if there is a majority?

When do subdivisions need "state subdivision approval"?

When do subdivisions need to be registered with the Attorney General's Office?

If an application is submitted with several waiver requests, can the Planning Board hold a site walk prior to its acceptance to help determine if the waivers should be granted?

If someone applies to the planning board for an approval but they owe back taxes, can the Planning Board refuse to grant the approval until the back taxes are paid?

If there is an application to the Planning Board, does the board then have an automatic right to enter onto the private property as part of the application process?

When is a subdivision or site plan application which has been "formally accepted" by the planning board grandfathered from any proposed amendments to a zoning ordinance or subdivision/site plan review regulations?

RSA 676:12 states that if a subdivision or site plan application has been formally accepted by the Planning Board prior to the posting of the first official notice of the public hearing on the proposed changes, then that application is exempt from any proposed amendments from those changes.

Can the public hearing be held at the same Planning Board meeting when a subdivision or site plan application is accepted as complete?

Yes. Both can take place on the same meeting provided that proper notice was given for both. This need not be two separate mailings to abutters so long as the notice of the meeting clearly states that the public hearing may take place upon the board finding that the application is complete and their vote of acceptance. Keep in mind that a hearing may be continued over more than one meeting as long as the date, time and place of the adjourned session is made known at the prior hearing.

Does a Planning Board have the authority to approve a subdivision or site plan with frontage only on a Class VI road?

Yes, but be careful! A Planning Board has the authority to grant a subdivision on a class VI road unless specifically addressed by local regulations. When dealing with any development on a class VI road, a very important statute to consider is RSA 674:41. That statute states in part that "no building shall be erected on any lot within any part of the municipality nor shall a building permit be issued for the erection of a building…" on a class VI road unless authorized by vote of the governing body only after review and comment by the planning board and the filing of a notice of the limits of municipal responsibility and liability in the registry of deeds. In other words, the land might be able to be subdivided but there is an additional process to go through before someone can build. The planning board should adopt a policy (or amend their subdivision regulations) to address developments on class VI roads along with the selectmen regarding reclassifications or individual building permits under 674:41. Improving a class VI road does not change its classification and governing body permission is required to work on any public highway, regardless of classification (see RSA 236:9-12).

How does a Class VI road get changed to Class V?

There have historically only been two ways for a class VI road to be changed to a class V road, a "layout" or a legislative body vote to reclassify (RSA 231:22-a,I). In 1999, RSA 229:5,VI was amended to add a third way a class VI road can change to a class V: "Any public highway which at one time lapsed to Class VI status due to 5-years' nonmaintenance, as set forth in RSA 229:5,VII, but which subsequently has been regularly maintained and repaired by the town on more than a seasonal basis and in suitable condition for year-round travel thereon for at least 5 successive years without being declared an emergency lane pursuant to RSA 231:59-a, shall be deemed a Class V highway."

What about construction of a single family home on a Class VI road?

As stated in RSA 674:41, it is the Board of Selectmen's (i.e. governing body) decision on whether to permit buildings on Class VI roads. Also, the municipality will not assume responsibility for maintenance nor liability for any damages resulting from the use of a Class VI highway and will require the applicant to produce documentation that notice of the limits of municipal responsibility and liability has been recorded in the county registry of deeds. If an individual is denied the permit by the governing body, he or she may appeal the denial to the ZBA (RSA 674:41,II).

When should a Planning Board grant a waiver of its regulations?

Waivers are normally authorized in Planning Board subdivision regulations and are specifically required for site plan review regulations (see RSA 674:44,III-e). Waivers should be granted in cases where, in the opinion of the Board, compliance with the regulations would place an unnecessary burden on the applicant. It is also recommended that waiver clauses identify the specific criteria under which a waiver will be granted. This should make the decision process more defined for planning boards.

How should the Planning Board handle an application which is incomplete?

The primary concern here should be the start of the 65-day "clock". If information is lacking, a board should not vote to conditionally accept an application at this point as the "clock" will be running while items are still not available. It is best for the Board to vote to reject the application as incomplete. In addition, an application shall not be considered incomplete solely because it is dependent upon the issuance of permits or approvals from other governmental bodies; however, the planning board may condition approval upon the receipt of such permits or approvals.

To take this discussion one step further, if the applicant takes exception to the board's decision and does not agree to submit any additional information, the applicant can treat this Planning Board decision as a final disapproval under RSA 676:4,I(e)(2) and thus appeal the decision to Superior Court. You are strongly urged to review RSA 676:4 since it has been revised many times.

Does the State regulate fences?

The only residential fences regulated by the State are spite fences (see RSA 476), stonewalls, and fences on state property. Towns are authorized to regulate fences, see town zoning ordinance.

How does a town handle a situation where a resident holds yard sales so often that it might be classified as a home occupation?

There are two ways to regulate yard sales that border on becoming home occupations; 1.) through your town zoning ordinance or 2.) a municipal ordinance. Here are a few examples of zoning ordinance regulation.

Town of Gilford: a permit is required from the Police Department. The length and frequency of the yard sale is restricted.
City of Lebanon: defined in the zoning ordinance as a use that is not regulated by the ordinance unless it exceeds two consecutive days or occurs two times in a calendar year. If so, it requires a zoning permit and is subject to regulations in the zoning ordinance.
Town of Wolfeboro: approval from the Code Enforcement Office is required if signs are used. Further regulations are specified in the zoning ordinance.

Is there a State building code?

Yes. RSA 155-A was revised by the legislature in 2002 to now provide for a uniform state building code. Links to the chapter law text and a summary of the bill can be found in the Resource Library.

When a Planning Board is voting, do you count the number of members present (the quorum) or the total number of members to determine if there is a majority?

That it depends on what the Planning Board is deciding. If they are acting on their own regulations (i.e., amending the master plan, adopting site plan regulations, etc.) the provisions of 675:6,II would apply where a majority of members would be needed to pass a motion, not just a majority of those present (a quorum).

But, if the board is acting on an application [676:4] (subdivision, site plan, etc.) then it would require a simple majority of the members present to pass an issue. This would correspond with the notion that the "board" in this case is the gathering of members, not the total membership, in other words, the quorum.

The reasoning is that passing regulations is a much more important function and the whole board should be involved, or at least there should be unanimous approval of a 7 member board who only has 4 members present. Plus, this action could be postponed until a full board is available which may not be the case when dealing with an application with the associated statutory time frames (the 65 day "clock".)

When do subdivisions need "state subdivision approval?"

Any lot that is 5 acres in size or smaller that will have on-site septic disposal and on-site water supply must first be approved by the Department of Environmental Services, Subsurface Systems Bureau (603-271-3501).

When do subdivisions need to be registered with the Attorney General's Office?

A subdivider of subdivided lands of no more than 50 lots, parcels, units, or interests may apply to the attorney general for an exemption from the registration and annual reporting requirements of RSA 356-A:4, I and RSA 356-A:5 through RSA 356-A:9. Condominium developments of 11 or more units must also register with the AG under the Condominium Act (356-B). For more information, contact the Department of Justice, Consumer Protection and Antitrust Bureau (603-271-3641).

If an application is submitted with several waiver requests, can the Planning Board hold a site walk prior to its acceptance to help determine if the waivers should be granted?

No, the planning board cannot conduct a site walk without first having accepted the application, waivers or no waivers. Acceptance of the application is assertion of jurisdiction over the subject and commences the public body's formal review of the matter put before it. A site walk is really an extension of the public hearing process, during which the board is gathering the information it needs to make its final decision on the application. The board cannot act on the waivers (i.e., approve or disapprove them) until it has first voted to accept the application. However, once the application has been accepted the board might reject a waiver request thus requiring the applicant to submit the missing information. If the applicant refuses, the board could ultimately deny the application.

If someone applies to the planning board for an approval but they owe back taxes, can the Planning Board refuse to grant the approval until the back taxes are paid?

No. The planning board can only act under the jurisdiction of the subdivision or site plan review regulations and are not a tax collection board.

If there is an application to the Planning Board, does the board then have an automatic right to enter onto the private property as part of the application process?

The simple answer is no, just because someone applies for an approval under the planning board's regulations, they do not give up their private property rights. However, the board can be granted this authority "by ordinance" as outlined in RSA 674:1,IV. Once the authority is granted, an "entry authorization" check box should be added to the appropriate application forms so that the applicant knows that the authority has been granted and the board may be entering the property. If the land owner refuses entry, the board may obtain an administrative inspection warrant under RSA 595-B to enter and, of course, the ultimate leverage is the approval the land owner is seeking. If there is an application and the board determines they need to inspect the property to obtain information necessary to make an informed decision and the land owner refuses, the board can simply deny the application citing lack of sufficient information.