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Bar News - September 8, 2006


Morning Mail: HB 1508: Not a Particularly Good Bill

I’ve just read the interesting article by Philip Hastings and Carmine Tomas on HB 1508 (enacted as Chapter 285, Laws of 2006). Thanks to the authors for bringing planning and zoning law to the Bar News! (See “A New Era of Zoning Protection in New Hampshire,” page 10, August 11 issue.)

           

I’m curious who the municipal planners are who supported the bill, as the article didn’t identify them and I don’t think any testified on it either in the House or in the Senate. As legislative liaison for the NH Planners Association, I know of no planners who thought this was a particularly good bill, either as introduced or as enacted. The NHPA actively worked with the bill’s sponsors outside of the legislative committee hearing process, and got some modifications that somewhat improved the bill (from the NHPA’s perspective). The ambiguity cited in the article regarding the end of the design review process is one of several concerns we raised; this and other issues remain unresolved in the enacted law.

           

I disagree with the article’s apparent conclusion that the statutory change will eliminate the acceptance battles between the applicant and the planning board, and I do not think it will reduce the likelihood of litigation. As it stood, the floor was already fairly level, especially in light of Rallis v. Hampton, 148 N.H. 18 (2001). Although the town prevailed on other essential issues in that case, the planning board got whacked for failing to accept a complete application in a timely manner.

           

Note that under RSA 676:4, there are two levels of pre-application review: preliminary conceptual consultation and design review. Planning boards are not required to allow either, and—in light of the limited applicability of HB 1508 regarding design review—they might stick to preliminary conceptual consultation instead, or not allow any pre-application review at all. But, even with limited vesting based upon design review, the planning board still has to find that an application is complete for this vesting to be meaningful. It is also important to observe that HB 1508 does not expand upon the existing grandfathering rule found in RSA 674:39. Rather, it provides a parallel grandfathering structure that I believe will only serve to confuse the development application process and those who administer it.

 

Benjamin D. Frost

Manchester

 

Author’s Note: One of our sources in writing the article (who was involved in the legislative process) indicated that a number of planners were supportive of the bill. As we point out in the article, we agree that the new legislation may lead to new battles, but the plan acceptance process undoubtedly will be simplified. The parties will have much less riding on the outcome of an acceptance. It will be interesting to see how this all plays out over the next few months. Carmine D. Tomas (authored the article, “A New Era of Zoning Protection in New Hampshire,” with Philip M. Hastings in the August 11 issue of Bar News. Go to www.nhbar.org, under Publications, to see the article).

 

 

Loves New Forms

           

Our office has received the new computerized forms for the CLE program [SC Rule 53 Certificate of Compliance] and we just wanted to give feedback on the new system.

           

We have found the new system to be very user friendly and the format very much improved on the former system. We love it. Many thanks. Keep up the good work!

 

Karen Gibbons

Ayer, MA

 

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