New Hampshire 2016-17 Land Use Law in Review

Statutes and Cases

Spring Planning & Zoning ConferenceConcord, NHApril 29, 2017

Benjamin D. Frost, Esq., AICPDirector, Legal and Public Affairs

New Hampshire Housing(603) 310-9361

bfrost@nhhfa.orgwww.nhhfa.org

Today’s Roadmap

I. Finding the Law

II. NH Statutory Changes

III. Accessory Dwellings & Agritourism

IV. NH Supreme Court Decisions

V. US Supreme Court Preview

PART IFinding the Law

Finding the Law

NH Statutes and Bills Revised Statutes Annotated (RSA)

www.gencourt.state.nh.us/rsa/html/indexes/default.html Search for Bills

http://www.gencourt.state.nh.us/bill_status/NH Supreme Court Decisions

www.courts.state.nh.us/supreme/opinions/index.htmFor Other Jurisdictions Cornell Law School

www.law.cornell.edu/ Google Scholar

http://scholar.google.comJoin Plan-link Nation! Confer with over 700 of your

best friends http://www.nh.gov/oep/planning/services/mrpa/plan-link.htm

Legislative Tracking

Legislature’s website http://www.gencourt.state.nh.us/bill_Status/

NH Municipal Association Bulletins www.nhmunicipal.org

New Hampshire Planners Association (NHPA) www.nhplanners.org

Other Sources

Land Use, Planning and Zoning. Peter Loughlin, Esq. New Hampshire Practice Series, vol. 15. LexisNexis. Updated annually

NHMA’s “Town and City,” online searchable index and full-text articles

Don’t forget to talk with your municipal attorney. That’s the person who will be defending you in court! …and who can help keep you out of court in the first place.

“An ounce of prevention…”

PART IINH Statutory Changes

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Voting on Variances

How does your ZBA vote on the 5 variance criteria? Some take a single vote on all 5, others vote on each criterion

individually (pros and cons); 3 votes in the affirmative required Neil Faiman’s Plan-link post from 2004: Imagine a case where A,

B, and C vote for "no diminution of property values", and D and E vote against. Then B, C, and D vote for "in the public interest", and A and E vote against. Then C, D, and E vote for "unnecessary hardship", and A and B vote against. By the time you're done, the Board as a whole has found each of the five criteria to be satisfied by a 3-2 vote, yet every member of the Board believes that two of the criteria are NOT satisfied—in a straight vote to approve or disapprove the variance, it would have to be defeated 5-0!

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Voting on Variances2017 HB 86 – pending

Senate version: “The zoning board of adjustment shall determine whether to grant

a variance by voting on each of the criteria in subparagraph I(a)(2) separately. The board shall grant a variance only if each of the 5 criteria receives at least 3 votes in the affirmative.”

This is the language that’s likely to be enacted Implication: Some ZBAs will have to change how the vote on

variances; this may require some to amend their Rules of Procedure (you say you haven’t read them?)

Practical Impacts: It will be easier to get a variance from those ZBAs that

currently take a single vote, as the number of vote combinations leading to yes will be greater

Establishment of a consistent statewide policy8

ZBA Hearings2017 HB 123 (Ch. 4)

676:7, V. If the board of adjustment finds that it cannot conclude the public hearing within the time available, it may vote to continue the hearing to a specified time and place with no additional notice required.

Similar language already exists for planning board in 676:4, I(i)

Effective 5/30/17

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Planning and Zoning Notices2017 HB 299 - pending

Changes method of application and hearing notices for both planning board and ZBA from certified mail (USPS only) to verified mail (USPS and other carriers).

Defined in RSA 451-C:1, VII: VII. "Verified mail'' means any method of mailing that is offered by the

United States Postal Service or any other carrier, and which provides evidence of mailing.

Passed House and Senate without amendment! Effective 60 days after passage

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Planning Board Alternates2017 HB 514 - pending

Alternate Members of Planning Boards. Amend RSA 673:6, III to read as follows: III. The alternate for a city or town council member, selectman, or

village district commission member shall be appointed by the respective council, board, or commission in the same manner and subject to the same qualifications as the city or town council member, selectman, or village district commission member under RSA 673:2. The terms of alternate members shall be the same as those of the respective members and may be in addition to the alternates provided for in paragraph I.

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Accessory Dwelling Units2017 HB 265 – pending

Expands municipal discretion regarding ADUs by Allowing municipalities to prohibit ADUs associated with

townhouse-style structures and with manufactured housing This is enabling – requires action

Prohibiting future condominium conveyance of ADUs separate from the principal dwelling unit with which it is associated, unless the municipality wants to allow “condominiumization” This is automatic, but municipal action may override it This is an exception to the Condominium Act, RSA 356-B:5 –

“No zoning or other land use ordinance shall prohibit condominiums as such by reason of the form of ownership inherent therein. Neither shall any condominium be treated differently by any zoning or other land use ordinance which would permit a physically identical project or development under a different form of ownership. …”

Passed by both House and Senate12

Note: In 2016, DES promulgated new administrative rules that will require larger septic tank sizes for units with ADUs to account for the increased peak flow

Add RSA 485-A:29, IV. “No plans, specifications, nor additional load requirements shall be required whenever an existing bedroom in a single-family residence is converted to an accessory dwelling unit as defined in RSA 674:71. This provision applies to either one or 2 bedroom conversions in a single-family residence.”

Impact: If enacted, this would invalidate DES’ new regulation; municipal standards relative to ADUs also would need to comply

Passed the Senate; pending in House Committee13

ADUs and Septic Systems2017 SB 73 - pending

Small Wind Energy Systems2017 HB 337 - pending

2008 Legislation: Municipalities can set standards for small wind energy systems (rated capacity of not more than 100 kW) made mostly for onsite consumption, but can’t unreasonably regulate them

Amend RSA 674:63, IV – unreasonable regulation includes: IV. Setting a noise level limit [lower than 55 decibels] lower than

specified by site evaluation committee rules, as measured at the site property line, or not allowing for limit overages during short-term events such as utility outages and severe wind storms.

Implications: Probably makes more sense, but is a harder-to-measure standard (and harder to find!)

Passed the House; pending in Senate committee14

Seacoast Area Drinking Water Comm’n2017 HB 342 - pending The commission shall:

a) Utilize and expand upon existing studies to plan for seasonal or drought supply issues.

b) Prepare and discuss mutual aid between seacoast towns for firefighting.

c) Prepare and discuss mutual aid agreements for emergency or replacement drinking water supply where contaminated.

d) Create a centralized planning group to encourage coordination and support between towns.

e) Evaluate threats to groundwater quality due to environmental issues. f) Monitor possible new emerging contaminant threats to groundwater

and drinking water quality.

Interim report 11/1/17; final report 11/1/18 Passed House; pending in Senate committee

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Coastal Resilience and RSA 79-E2017 SB 185 – pending

Expands RSA 79-E A city or town may adopt the provisions of this section by vote of

its legislative body according to the procedures described in RSA 79-E:3, to establish a coastal resilience incentive zone (CRIZ). Municipalities may use storm surge, sea-level rise, and extreme precipitation projections in the 2016 report of the New Hampshire Coastal Risk and Hazards Commission, "Preparing New Hampshire for Projected Storm Surge, Sea-Level Rise, and Extreme Precipitation," and its successor projections, to identify potentially impacted structures.

Also enables municipalities to create capital reserve or trust funds to account for municipal CRIZ costs for resiliency measures

Passed Senate; pending in House committee16

Municipal Notice of SEC Proceedings2017 SB 116 – pending

Expands notice provisions for major energy projects “Affected municipality" means any municipality or unincorporated

place in which any part of an energy facility is proposed to be located and any municipality or unincorporated place from which any part of the proposed energy facility will be visible or audible.

Notice at least 14 days prior to public information sessions and public hearing

Pending Senate action on House amendment Implications:

Broader public participation likely, but how do you send notice to an unincorporated place?

Potentially vastly increases the number of municipalities to be notified (lots can be seen from Sargent’s Purchase)

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Restoration of Involuntarily Merged Lots2016 SB 411 (Ch. 237)

RSA 674:39-aa (SB 411) Involuntary mergers outlawed in 2010 (see RSA 674:39-a)(owner

consent required) In 2011, this law allowed owners to petition the local governing

body for restoration of lots that were involuntarily merged by the municipality

Law set to sunset on December 31, 2016

This extends the sunset to December 31, 2021; but no more notices required in municipal annual reports!

For some fun historical background, read Sutton v. Town of Gilford, 160 N.H. 43 (2010)

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Mergers and Mortgages2016 SB 411 (Ch. 237)

RSA 674:39-a Most of the existing statute becomes I. New: II. If there is any mortgage on any of the lots, the applicant

shall give written notice to each mortgage holder at the time of the submission of the application. The written consent of each mortgage holder shall be required as a condition of approval of the merger, and shall be recorded with the notice of the merger pursuant to paragraph I. Upon recordation of the notice and each consent, the mortgage or mortgages shall be deemed by operation of law to apply to all lots involved in the merger. The municipality shall not be liable for any deficiency in the notice to mortgage holders. (emphasis added)

Effective 8/23/16

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A Few That Didn’t Make the Cut in 2017

HB 92 – Updates state building code to 2015 ICC Codes (retained)

HB 486 – Uniform statewide wetland buffers (retained) HB 566 – Repealing RSA 79-E HB 617 – Elimination of multiple daily fines for zoning

violations SB169 – Definition of agritourism (retained) SB 173 – Prohibiting ADU use for short-term rentals SB 243 – Complete streets policy and fund

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PART IIIAccessory Dwellings

and Agritourism

ADU Law – 2016 SB 146 (Ch. 6)The Basics Defining Characteristics

Independent living unit (sleeping, cooking, eating, sanitation) Adequate water supply and sewage disposal required Interior door between primary unit and ADU required

Municipal Role Municipalities must allow an attached ADU in any single-family

zone by right, special exception, or conditional use permit If the zoning ordinance is silent on ADUs, then they are allowed

in any single-family home (regardless of zone) Standards for a single-family home also apply to combined SF

and ADU (e.g., setbacks and frontage)

ADU Law – Options

Municipality may Require adequate parking to accommodate an ADU Require owner occupancy of one of the units (but it can’t say

which one) Require demonstration that a unit is the owner’s primary dwelling

unit Control for architectural appearance (“look and feel”) Limit the number of ADUs per single family dwelling Limit the number of unrelated individuals that occupy a single unit

(concern of college towns)

ADU Law – Prohibitions

Municipality must not Limit ADU to 1 bedroom or to be less than 750 s.f. Require familial relationship between occupants of principal

dwelling and ADU Require additional lot area or other dimensional standards for

ADU (but it may increase lot size for a detached ADU) Require door between primary unit and ADU to remain unlocked

Other elements Detached ADUs

Municipalities may allow at their discretion A municipality may require increased lot size, but other

statutory standards for attached ADUs will apply Amends NH RSA 674:21 Innovative Land Use Controls

ADUs are removed from list along with its definition – no longer a voluntary land use regulation

Effective date: June 1, 2017

ADU Law – Miscellany

Isn’t this just a duplex? Do we still need to care about workforce housing? Do impact fees apply to a new ADU? What does “attached” mean? What’s the purpose of an interior door? What about DES septic standards? Can HO associations or condo docs prohibit ADUs? Owner occupancy – what if the owner is a trust? What are the HUD occupancy standards? What about use as a short-term rental? What if we do nothing?

ADU Law – FAQs

Agritourism2016 SB 345 (Ch. 267)

Repeals definition of agritourism and inserts new definition into “marketing or selling” in RSA 21:34-a, II (agriculture definition) Text: (b)(5) The marketing or selling at wholesale or retail, [on-

site and off-site, where permitted by local regulations,] of any products from the farm, on-site and off-site, where not prohibited by local regulations. Marketing includes agritourism, which means attracting visitors to a farm to attend events and activities that are accessory uses to the primary farm operation, including, but not limited to, eating a meal, making overnight stays, enjoyment of the farm environment, education about farm operations, or active involvement in the activity of the farm.

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Agritourism (cont’d)2016 SB 345 (Ch. 267) Adds agritourism to RSA 672:1, III-b and III-d

Thou shalt not unreasonably limit…

Amends RSA 674:32-b, II Text: Any new establishment, re-establishment after

[abandonment], or significant expansion of a farm stand, retail operation, or other use involving on-site transactions with the public, including agritourism as defined in RSA 21:34-a, may be made subject to applicable special exception, building permit, or other local land use board approval and may be regulated to prevent traffic and parking from adversely impacting adjacent property, streets and sidewalks, or public safety.

Adds RSA 674:32-d Agritourism is allowed on any property where agriculture is the

primary use, subject to RSA 674:32-b, II

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PART IVNH Supreme Court Decisions

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All NH Supreme Court opinions are available on its website – go to www.nh.gov, find the Judicial Branch link on the right side, then click on the Supreme Court tab and select “Slip Opinions.”

You can also get onto the Supreme Court’s email list for notices of decisions.

Mergers and Mortgages(or, “Why the Legislature needed to do that”) Mahmoud v. Town of Thornton (2016)

2004: 17-acre parcel acquired 2005: subdivision approval created 1.06-acre Lot 1

Recorded in Registry as plan 11808 2006: Lot 1 mortgaged, deed refers to Plan 11808

TOGETHER WITH all the improvements now or hereafter erected on the property, and all easements, appurtenances, and fixtures now or hereafter a part of the property. All replacements and additions shall also be covered by this Security instrument. All of the foregoing is referred to in this Security instrument as the “Property.”

2006: new subdivision creates a total of 8 lots and moves boundary of Lot 1, increasing it to 2.4 acres Recorded in Registry as Plan 12600

2008: default and foreclosure sale of Lot 1 Conveyance refers to Plans 11808 and 12600 Several further conveyances of Lot 1 ensue…

Mergers and Mortgages(or, “Why the Legislature needed to do that”) Mahmoud v. Thornton (cont’d)

2015: Original owner (Mahmoud) sues current and intervening owners regarding size of Lot 1 and claims the foreclosure was invalid

Trial: summary judgment for defendants; appeal Supremes: unambiguous language, affirms trial court

Implication: cases like this should no longer happen, given the new requirement of mortgagee consent to mergers. But this wasn’t a merger, so…

Camping Cabins and Zoning

Lake Forest R.V. Resort v. Town of Wakefield (2016) 105-acre tract with RV campsites on 68 acres 1994: planning board approves 16 cabins on remaining 37 acres;

2 acres per cabin 2001: cabin size? Planning board decides up to 600 s.f. 2007: 4 cabins built; owner asks planning board for approval to

increase size of remaining 12 cabins to 850 s.f. Town planner denies request and requires that remaining

cabins can be only 400 s.f. Court: prior approval of 600 s.f. holds

Camping Cabins and Zoning

Lake Forest R.V. Resort v. Wakefield (cont’d) 2011: owner goes to planning board for 850 s.f. cabins

Denied – board considers RSA 216-I (camping cabins are up to 400 s.f.), but recognizes that they must allow 600 s.f. by previous court order; appealed

2013 – trial court: RSA 216-I controls and planning board can enforce it; 400 s.f. maximum cabin size

Supremes: “…the narrow issue before us is whether RSA chapter 216-I precludes the plaintiff from constructing cabins larger than 400 square feet.” RSA 216-I:1, VII(a) – recreational camping cabin: “…a structure

on a campsite, 400 square feet or less” Nothing says that’s a maximum size! “Rather, a cabin that is

larger than 400 square feet is simply not a ‘recreational camping cabin’ under the chapter.”

Remanded – but the Court emphasizes the narrowness of the decision; what does zoning say?

Nonconforming Uses

Dartmouth Corp. of Alpha Delta v. Hanover (2017) Summary

While on “double secret” probation, members of AD branded the organization’s letters on the bodies of new initiates

Dartmouth College “derecognized” AD’s connection to the college; the relationship dated to the 1840s (originally

As a result of its loss of connection to the college, AD became a non-conforming use

Fraternity history: 1846: Alpha Delta Phi formed – later changed its name “to

symbolize the return to the literary traditions, which were purely Dartmouth in nature.”

1911: First structure occupied 1920: Currently-occupied house built, housing 18-22

Dartmouth undergraduate students35

Nonconforming Uses

Alpha Delta v. Hanover (cont’d) Hanover Zoning history:

1931: Zoning adopted, including “Educational District” allowing dormitories “incidental to and controlled by an educational institution”

1976: Hanover enacts its current zoning ordinance, including “Institution” district Student residence allowed only by special exception;

defined as a building “occupied by [any number of] students and operated in conjunction with another institutional use…”

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Nonconforming Uses

Alpha Delta v. Hanover (cont’d) Current Controversy:

April 13, 2015: College revokes recognition of AD as a student organization. Specifically revokes: recruitment; “college approved”

residential facility; use of College facilities or resources; participation in activities; insurance.

College also begins systematic disconnection of AD from systems, including safety walk-throughs and campus security, direct alarm connection to Police/Fire, use of residential payment system, Internet, etc.

April 23, 2015: Zoning enforcement – because AD “is no longer operated in conjunction with an institutional use” it is in violation of zoning; continued occupancy by [at least 18 individuals] must cease and desist!

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Nonconforming Uses

Alpha Delta v. Hanover (cont’d) ZBA Administrative Appeal

College letter to ZBA: “…the Alpha Delta organization no longer has any official

status relative to Dartmouth College and the College’s relationship to [Alpha Delta]…is no different from its relationship to any other Hanover property owner.”

ZBA denies the appeal, affirming the zoning administrator’s decision AD “failed to present any evidence that the fraternity ever

operated in a manner which was not ‘in conjunction with’ [the] College, prior to the adoption of that zoning requirement…”

AD failed to show that its use was lawfully non-conforming

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Nonconforming Uses

Alpha Delta v. Hanover (cont’d) ZBA Administrative Appeal

ZBA’s analysis of the meaning of “in conjunction with” Residential uses in other districts limited to no more than 3

unrelated individuals living together Here, College systems deemed to meet health and safety

concerns, so the restriction against >3 unrelated individuals per unit is unnecessary

“in conjunction with” is for health and safety – oversight by some other institution

Superior court affirms ZBA ruling: AD “…needed to show that it operated [the property] in a manner that was not ‘in conjunction with another institutional use’ at the time the ‘in conjunction with’ requirement was adopted.”

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Nonconforming Uses

Alpha Delta v. Hanover (cont’d) Supreme Court: “A nonconforming use is a lawful use existing

since prior to the adoption of a zoning ordinance prohibiting such use, and that does not conform to the requirements of the ordinance.”

Nonconforming uses protected by RSA 674:19 and by Part I, Articles 2 and 12 of the NH Constitution “To qualify for such protection, a nonconforming use must

lawfully exist at the time the restriction is adopted and have continually existed since that time.”

Surprisingly, the Court doesn’t refer to Part I, Article 23 (retrospective laws), but does say “The right to maintain nonconforming uses is meant to protect property owners from a retrospective application of zoning ordinances…”

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Nonconforming Uses

Alpha Delta v. Hanover (cont’d) Zoning ordinance has three pertinent requirements

1. Student residence must operate “in conjunction with” another institutional use

2. Special exception required3. Student residence must relate to the uses of the institution

having ownership interest in land in the district Why doesn’t it just say “Dartmouth College”? Zoning

should not be written to benefit a single entity or individual – analogous to “spot zoning”

Undisputed that the use was lawful as a student residence without a special exception; it was lawfully operated in 1976 as a student residence - #2

Not addressed by Court: use of property must be by Dartmouth undergrads - #3

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Nonconforming Uses

Alpha Delta v. Hanover (cont’d) AD seems to argue that the three requirements for a student

residence operate in sequence, and that only if a special exception is required then are the other two criteria required Therefore, AD argues, if a special exception isn’t required

(because the use is grandfathered relative to that requirement), then the other issues can be ignored

Supreme Court properly views the requirements concurrently –all three must be met simultaneously Here, the use predates the requirement for a special exception

– grandfathered “…the issue was whether Alpha Delta’s use as a student

residence, following the College’s derecognition of the fraternity in 2015, continued to comply with the zoning requirement that a student residence in the Institution district operate in conjunction with another use.”42

Nonconforming Uses

Alpha Delta v. Hanover (cont’d) AD tries to rely on ZBA’s previous decisions, arguing that the

ZBA is bound by stare decisis Stare decisis – legal principal that decisions in previous cases

binds a tribunal to reach the same conclusion in future matters But does a ZBA’s decisions have precedential value? Court: “Assuming, without deciding, that the ZBA is bound by

the principal of stare decisis, we disagree that the [previous] decision is relevant in this case.”

AD argues that Hanover was selectively enforcing its zoning “…the mere fact that a Town may have been lax in its

enforcement in the past does not prohibit enforcement in the present.”

But see administrative gloss

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Nonconforming Uses

Alpha Delta v. Hanover (cont’d) Another statement on nonconformities: “A lawful nonconforming

use is a use in fact existing on the land at the time of adoption of the ordinance.”

Court reviews “in conjunction with” phrase “…the words and phrases of an ordinance should be

construed according to the common and approve usage of the language.

Not defined in ordinance; Webster’s – conjunction: the act of conjoining or state of being conjoined: union, association, combination

ZBA was presented no evidence of association between AD and College after derecognition

Affirmed

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Nonconforming Uses

To wrap it up, here’s my legal test:

A nonconforming use may continue regardless of regulatory changes, provided it legally existed at the time of such changes and has continued since then without having been abandoned

This is the essence of grandfathering

Abandonment is a topic we’ll save for a later discussion…

PART VUS Supreme Court Preview

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Takings

Murr v. Wisconsin (cont’d) Takings clause: “…nor shall private property be taken for public

use without just compensation.” 1976 zoning: merger of nonconforming lots in common ownership 1990s: Murr siblings took ownership of two legal nonconforming

parcels from their late parents; one had been owned by the parents outright, and the other by the parents’ plumbing company

As merged, the Murrs still have use of the property – has anything been taken?

Precedent: look at the “parcel as a whole” Takings law “denominator problem” – what is the property?

Focus on what things? lot lines, linked uses of property, who owned what and when, fairness? Multiple factors?

Stay tuned, but remember this should no longer be an issue here

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