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Land Use Boards and Municipal Officials

Alternate Board Members | Application Acceptance/Incomplete Applications | Conditional Use Permits | Conflicts of Interest/"Ex-parte" Contacts | Conservation Commissions | Decisions | Elected Land Use BoardsEx-Officio Members | Fees | Filing Amended Plans, Regulations and Ordinances | Joint Meetings and Hearings | Meetings/Minutes | Multiple Board Memberships | Planning Board | Prudential Affairs | Residency Requirements for Elected or Appointed Positions | Rules of Procedure | Staff, Finances | Town Manager/Town Administrator/Town Council | Village Districts | Zoning Board of Adjustment

Alternate Board Members

  • Filling vacant seats and those of absent or recused members
    RSA 673:11 allows an alternate land use board member to be designated to sit when a regular member is either absent or disqualified (recused).
  • RSA 673:12 was amended in 2009 adding subsection III allowing the chairperson of a local land use board to temporarily designate an alternate member to fill a vacant seat until it can be filled in the manner set forth in paragraph I or II. If the vacancy is for an ex officio member, the chairperson may only designate the person who has been appointed to serve as the alternate for the ex officio member.
    Where multiple recusals deprive a land use board of a quorum, the Town can employ RSA 43:7 and the Selectmen can appoint persons to sit who had previously held the same position in the past. In the case of a land use board being depleted of all members and alternates because of recusal, the Town can apply to the Superior Court pursuant to RSA 43:8 to have a substitute board appointed for that particular matter. Persons so appointed must have held the same position in the past.
  • SB448 (Chapter Law 270:2, 2010) amending RSA 676:1 to specify when and how an alternate may participate in meetings of the land use board.
    Under the existing statutes, many municipalities questioned whether alternates are permitted to sit at the table or participate in meetings. Practices and legal opinions varied from community to community. Additionally, many felt for alternates to be best prepared to serve when called-up or to fill future vacancies they needed to participate in meetings on a regular basis. This bill allows alternate members of land use boards to participate in meetings of the board as a non-voting member. Boards are required to establish procedural rules to set the details of how and when the alternate may participate. For example, rules may specify that alternates participate during master plan or other work sessions; during hearings but not board deliberations that lead to a vote; etc. The level of participation is up to the board as contained in their rules. See the suggested Rules of Procedure in the Planning Board Handbook and the Zoning Board of Adjustment Handbook.
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Application Acceptance/Incomplete Applications

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Conditional Use Permits

  • Look Before You Leap: Understanding Conditional Use Permits - New Hampshire Town and City, January 2006, C. Christine Filmore
    All New Hampshire municipalities are familiar with land use regulation. Even the smallest towns face questions of growth, development, compatibility of uses, conservation of resources, and the need for infrastructure. Municipalities have a number of well-worn tools at their disposal to address these questions, including the master plan, subdivision and site plan review, special exceptions, and variances, to name a few. One option that local officials may know less about, however, is the "conditional use permit," sometimes called a special use permit. These permits are useful but can be a bit confusing, and that confusion may lead a municipality astray. What are conditional use permits, exactly, and how is a municipality supposed to use them?
  • Typically, planning board decisions on zoning matters are appealed to the ZBA. In contrast, innovative land use control decisions by the planning board, although they directly involve zoning matters, are appealable only to the superior court. RSA 676:5, III
  • Conditional Use Permits from Innovative Land Use Controls: Reexamining Your Zoning Ordinance - NHMA Law Lecture #3, Fall 2012
  • See the results of the Municipal Land Use Regulation Annual Survey for municipalities with Conditional Use Permits.
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Conflicts of Interest/"Ex-parte" Contacts

  • Statutes
  • Attorney General’s Memorandum on New Hampshire’s Right-To-Know Law, RSA Chapter 91-A - March 20, 2015
  • See NHMA Law Lecture #2 - Conflicts of Interest, Fall 2016
    "Do I need to recuse myself?" Land use board members are often faced with this question because a conflict of interest has been alleged. On the other hand, it may be a question that land use board members should be asking, but aren't. Whether to ask that question-and how to answer it-can be complicated, and made more complicated by the serious consequences that arise when a conflict is not properly addressed. Join Attorneys Matt Serge and Margaret Byrnes to get answers to these questions and more, by learning how to identify a conflict and how to properly handle it, and the repercussions of failing to do so. The presentation will discuss conflicts in general, and then place a specific focus on land use boards.
    Presenters: Margaret Byrnes, Esq. NH Municipal Association & Matthew Serge, Esq. Drummond Woodsum
  • 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)
  • Character Matters: Rochester Finds Lessons and Strength in Implementing an Ethics and Compliance Program, New Hampshire Town and City, July-August, 2014, By Daniel Fitzpatrick, Rochester City Manager
    On October 18, 2013, the City of Rochester mailed a letter to every one of its vendors announcing its new ethics and compliance program. Earlier in the week, a letter went out to all department heads and employees and notices were posted on bulletin boards throughout city offices. Those letters followed a one-year-long effort by the city to establish a compliance program that outlines a clear-cut code of conduct for all city departments and city employees.
  • I Recuse Myself, New Hampshire Town and City, July/August 2013, By C. Christine Fillmore
    It is generally understood that a municipal official who has a conflict of interest in a specific situation is not supposed to participate in that matter. What is less understood is how this process works and what is at stake in making that decision.
  • Local Officials Making Decisions: Understanding Conflicts of Interest and Disqualifying Bias, New Hampshire Town and City, January 2011, By Kimberly A. Hallquist
    "A man cannot serve two masters at the same time, and the public interest must not be jeopardized by the acts of a public official who has a personal financial interest which is, or may be, in conflict with the public interest."
  • Plan-link posting and replies on November 20, 2015, regarding a question about email between board members and includes a sample policy for e-mail and other between-meeting communications
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Conservation Commissions

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  • Making Defensible & Enforceable Land Use Board Decisions
    2014 Lakes Region Planning Commission Municipal Law Lecture, Attorney Daniel Crean, Crean Law Office, Pembroke, NH
    This seminar seeks provide general guidance in handling procedural, administrative, and record-keeping requirements that relate to the process of making land use board decisions, including:
    • Making the decision on an application;
    • Imposing conditions;
    • Creating the notice of decision; and
    • Enforcing the decision.
  • Attaching "Conditions" to Approvals in Land Use Boards, New Hampshire Town and City, November/December 2013
    The Planning Board and the Zoning Board of Adjustment are the most common land use boards in New Hampshire, and each has been assigned a set of legal responsibilities and the authority to adjudicate the rights and liabilities of property owners with respect to these legal matters. The boards do not go out to the community to develop their own cases; landowners come to the boards seeking relief in accordance with the requirements of the local Zoning Ordinance.
  • Conditions Imposed by Local Land Use Boards Now Subject to Heightened Security, New Hampshire Town and City, September/October 2013
    While our articles normally focus on changes made to New Hampshire law by legislative enactment or decisions of the New Hampshire Supreme Court, there are times when the United States Supreme Court renders decisions of such importance that they must be brought to your attention.
  • ZBA Decision Making Process, Paul Sanderson, Spring Planning and Zoning Conference, 2014
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Elected Land Use Boards

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Ex-Officio Members

  • 672:5 Ex Officio Member
  • An ex-officio member is a representative chosen by the board of selectmen. This person may either be a selectman or another administrative official of the town. The ex-officio member is a full, voting, member of the board with all powers of other board members, except that he or she may not serve as the board chairman. RSA 673:9, II. An ex-officio member differs in one other way from other regular members—he or she has a special alternate appointed by the same board that appointed the ex-officio member. When the ex-officio member is absent or disqualified, only the ex-officio alternate member may sit in that person's place. RSA 673:11. (From What is the Role of Alternate Land Use Board Members?, New Hampshire Town and City, July/August 2007)
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  • "The planning board may, as part of its site plan review regulations, require an applicant to pay all costs for notification of abutters and may provide for the assessment of reasonable fees to cover the board's administrative expenses and costs of special investigation and the review of documents and other matters which may be required by particular applications." [RSA 674:44,V]
  • "A schedule of fees, or a provision authorizing the governing body to establish fees, to be charged for building permits, inspections, and for any certificate of occupancy enacted pursuant to paragraph III." [RSA 674:51,III,(d)]
  • "Reasonable fees in addition to fees for notice under subparagraph (d) may be imposed by the board to cover its administrative expenses and costs of special investigative studies, review of documents and other matters which may be required by particular applications." [RSA 676:4(I)(g)]
  • "The board of adjustment may impose reasonable fees to cover its administrative expenses and costs of special investigative studies, review of documents, and other matters which may be required by particular appeals or applications." [RSA 676:5,IV]
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Filing Amended Plans, Regulations and Ordinances

  • "No master plan, regulation, amendment or exception adopted under this section shall be legal or have any force and effect until copies of it are certified by a majority of the board or commission and filed with the city clerk, town clerk, or clerk for the county commissioners." [RSA 675:6, III]
  • "All zoning ordinances, historic district ordinances, building codes, subdivision regulations, site plan review regulations, historic district regulations and their amendments shall be placed on file with the city, town, or village district clerk, or, in the case of unincorporated towns or unorganized places, with the clerk for the county commissioners for public inspection." [RSA 675:8]
  • “A copy of each master plan, zoning ordinance, historic district ordinance, capital improvement plan, building code, subdivision regulation, historic district regulation, site plan review regulation or amendment which is adopted by a municipality shall be placed in a central file with the office of planning and development; provided, however, that failure to file these documents or amendments with the office of planning and development shall not affect the validity of the document. The office of planning and development is hereby authorized to gather this information by way of an annual survey of the municipalities or other such means as may be deemed appropriate. The office of planning and development shall periodically create lists and reports of the information gathered for use by the municipalities and the general public.”[RSA 675:9]
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Joint Meetings and Hearings

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Multiple Board Memberships

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Planning Board

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Prudential Affairs

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Residency Requirements for Elected or Appointed Positions

  • Planning board members [RSA 673:2, II (a)]
  • Zoning board of adjustment members  [RSA 673:3, I]
  • Historic District Commissioners  [RSA 673:4, II]
  • Heritage Commissioners  [RSA 673:4-a, II]
  • Agricultural Commissioners [RSA 673:4-b, II]
  • Housing Commissioners  [RSA 673:4-c, II]
  • For all elected offices:
    • "Unless otherwise provided by law, no person shall hold an elective town office who does not have his domicile within the town." [RSA 669:6];
    • "No person is eligible to hold any municipal office, elective or appointive, who is not a citizen of the United States." [RSA 91:2];
    • "To hold any elective office in the state, a person must be a citizen of the United States, either by birth or by naturalization." [RSA 655:1]; and
    • “To hold any elective office in the state, a person must have a domicile in the state. Registration to vote or voting in another state during the relevant time period shall create a presumption that a person does not have a domicile in this state." [RSA 655:2]
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Rules of Procedure

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Staff; Finances

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Town Manager/Town Administrator/Town Council

  • Town Managers vs. Town Administrators: What's the Difference?, New Hampshire Town and City, June 2006
    It would be hard to imagine any board of selectmen that could operate efficiently and effectively without the assistance of capable administrators and office staff. Selectmen are called upon to make many important decisions as they "manage the prudential affairs" of the town, and to do so, they often turn to town managers and town administrators to assist them.
  • RSA Chapter 37 Town or Village District Managers
  • See the results of the Municipal Land Use Regulation Annual Survey for a list of municipalities by their respective form of government.
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Village Districts

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Zoning Board of Adjustment

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