Law Improves New Hampshire Application Process
A new law in New Hampshire will protect builders from unfair application processes that allowed local governments to kill or substantially alter projects by delaying them until zoning changes could be enacted.
The measure (HB 1508), which was recently signed into law by Gov. John Lynch, protects planning board applicants from changes in subdivision- or site plan-review, zoning ordinances or amendments at the time the applications are made, provided that there has been no legal notice of the proposed change or amendment.
For the protections to apply, a formal application must be filed with the planning board within 12 months of the end of the design review process.
“This law will do two important things,” said Paul Morin, president of Tarkka Homes in Weare, N.H. “First, it will eliminate the vulnerability to regulatory and zoning changes that currently exists throughout most of the subdivision and site plan review process. Until HB1508 became law, applications could be easily delayed in order to allow a zoning or regulatory change to occur, thus dramatically changing or even killing a project. That strategy is no longer available to boards or petitioners seeking to block a development.
“Second, it will foster better-faith dialogue during the application review because the critical point of vesting is now prior to the review process,” Morin said. “It no longer rides on that moment that the application is deemed complete by the planning board, which used to be reason enough to require all sorts of information whether it was relevant or not.”
Morin testified during hearings about the legislation, providing a unique perspective as a builder and developer, as well as chairman of his city’s planning board.
Land use attorney Ari Pollack said he believes the law will yield better planning and more effective communication between builders, citizens and regulators.
“Zoning proposals can be fielded and considered at any time, regardless of whether or when the town uses an election model,” said Pollack, a land use attorney with Gallagher, Callahan & Gartrell, PA in Concord, N.H. “The new law rewards active citizens who participate in community zoning and planning before a new project impacts their backyard.”
This law was necessary, Pollack added, because in far too many instances neighborhoods that did not participate in the process pushed the local government to stop or alter a project after a developer had relied on the existing rules, designed a project and incurred substantial costs, or worse yet, purchased the land. By having the board tinker with completeness of the application while zoning changes were posted, the neighbors could pull the rug out from under a developer who had acted in good faith, Pollack said.
There are numerous legal doctrines critical of such behavior, including justifiable reliance, laches, unclean hands and municipal estoppel, Pollack said. In some ways, New Hampshire zoning is catching up with these accepted principles.
“In my nearly 10 years as a land use lawyer in New Hampshire, this is the single most meaningful change to land use law and procedure,” Pollack said. “The law becomes effective Aug. 14. I am anxious to see how it might improve the application process and the quality of good faith consideration offered by boards.”
For more information, e-mail Blake Smith at NAHB, or call him at 800-368-5242 x8583.