Bar News - May 17, 2013
Real Property Law: Making the Case: Practical Tips for Presentations to Land Use Boards
By: Richard Uchida and John M. Sokul
The job of representing real estate developers in front of municipal planning and zoning boards presents lawyers with unique challenges that donít often exist in the courtroom or the boardroom. The public planning board review process can make lawyers and their clients susceptible to some common legal and interpersonal pitfalls.
Hereís a list of some legal traps and tools, as well as some tips for effectively making your case when representing a developer at a planning board public hearing.
1. Know the Rules
Although most planning board hearings are quite similar, many planning boards have different rules of procedure. Make sure you check these rules and are familiar with them at the outset. Key things to look for include submittal deadlines, how application acceptance is handled, types and specifications of plans that must be submitted, required pre-hearing meetings with other municipal boards and commissions, presentation order and formats, time limits on presentations, quorum requirements, and standards for member disqualification.
2. Tell Everyone
Most planning board applications are reviewed and considered at a public hearing, and state law requires that owners of abutting property be notified of such hearings by certified mail. According to the law, an abutter is "any person whose property is located in New Hampshire and adjoins or is directly across the street or stream from the land under consideration by the local land use board." Some municipalities may, by ordinance, expand the definition of "abutters."
Do not take abutter notification lightly. Sometimes, it is difficult to figure out who is entitled to notice. It is better to err on the side of giving notice. Failure to provide required notice constitutes a jurisdictional error and potentially renders a boardís decision a nullity.
3. Think Big
With large-scale projects, emphasize first how a project benefits the neighborhood and the community. A planning board must cooperate with a developer in the development of property, but it also wants to ensure that large scale projects achieve benefits for the community. Make certain those themes resonate through your entire teamís presentations.
4. Keep it Simple
Keep in mind that most board members are volunteers and non-lawyers. Your presentation should be logical and concise and tailored to your audience, not to a court of law.
5. Extend the Hearing
If your project will require multiple public hearings, it is preferable to extend the meeting to a specific date and time, which is announced during the hearing being continued. Otherwise, abutters will need to be re-noticed.
6. Know the Board
Remember that many planning board members are professionals in other areas Ė engineers, architects, landscapers, fire or police, business executives, bankers, or residents who work as municipal officials in other towns. While they may not understand the law, they will know instantly if you are trying to slip something by in their area of expertise, and they will call you out. Knowledge of the professional experience/backgrounds of board members can be helpful.
7. Understand Board Size
It is not unusual for planning boards to conduct business with enough members for a quorum but less than a full board. For example, a five-person planning board might proceed with four voting members, if four people are enough for a quorum. For project approval, a majority vote of the voting members is needed.
There is a difference between a four-person board and a five-person board in the percentage of votes needed for approval, which can have a significant impact on likelihood of success. If five planning board members are sitting, then three votes (60 percent) are needed. Two people could vote no and your client would still receive approval. If four board members are sitting, three votes (75 percent) are still needed. Only one person can vote no.
Discuss with your client whether he/she would be better off waiting for a final vote from a full board. Also remember that a request for disqualification of a board member due to a potential conflict of interest must be made at earliest possible opportunity.
8. Spruce It Up
Illustrate your project with colored plans, photographs, renderings, materials and color samples, even models of sites and buildings. Likewise, if done well, computer simulations are especially effective in illustrating architectural and landscaping features from different points around the property. They are also effective in demonstrating traffic impacts. Be certain to get to a meeting room early to test your technology. Nothing is worse than relying on/promising an effective simulation, then finding you are unable to run it.
9. Be a Spectator
If you have never appeared in front of a particular board, find time to watch it in action. Find out which board members seem most influential and which ones have particular areas of concern they deem important in any project (landscaping, environmental issues, traffic, fire protection, etc.).
10. Visit the Site
Never represent a development without visiting the property and the development area. It is embarrassing when a board member asks a question about the property or the area around a project, and you donít know the answer because youíve never been there.
11. Supplement the Record
Judicial review of a planning board decision is not a de novo review. It is generally based on the certified record of the proceedings below. The rules of evidence do not apply at planning board hearings, so lawyers should take full advantage of the opportunity to submit as much supportive information and materials at the planning board level. This will help create a solid record and help "bulletproof" an application from legal challenge.
12. Listen More, Talk Less
Listen to criticism and take it to heart. Our knee-jerk reaction to criticism of a clientís position is to defend (zealously). Often, a board member is making suggestions that will ultimately gain that personís vote, and in many instances, they are suggestions that the project can accommodate. A board needs to feel it has been an effective part of the development process. Exercise patience in responding to criticism. Sometimes, a member of the public or board member will offer criticism, and another board member will effectively refute that criticism without your help, if you can resist the urge to jump in after every comment.
13. Know Your (Vested) Rights
One risk that developers face is that zoning, site plan and other regulations could change during the review or appeal process. There are some statutory protections available to developers to mitigate this risk and to "vest" their projects against regulatory changes. This is an important and often misunderstood aspect of the planning process.
New Hampshire statutes provide vesting protections at both the application and approval stages of the review process. The stated purpose of these protections is to prevent municipalities from amending local land use regulations for the purpose of stopping proposed developments while an application is under consideration.
14. Donít Miss Deadlines
If your client wants to appeal a planning board decision, then the appeal period is generally 30 days from the date of decision. Appeals are usually made to superior court. If minutes of the public hearing are not available within five days after the vote, then the appellant is entitled to amend his petition within 30 days after the date on which the minutes become available.
The 30-day appeal period is a hard deadline, failing which the court lacks subject matter jurisdiction. The 30-day time period is counted in calendar days beginning with the date following the date of the planning board vote.
If the issue being appealed relates to a planning boardís interpretation of the zoning ordinance, then the appeal must be filed with the Zoning Board of Adjustment within a reasonable time, as set forth in the rules of the Zoning Board or the Ordinance. It is imperative in these circumstances to have the most up-to-date set of rules. Be aware that the appeal period could be shorter than 30 days.
15. Stop Means Stop
Upon the filing of an appeal, the superior court may issue an order of certiorari to the planning board. This starts the formal judicial process. The issuance of the cert order stays all proceedings upon the decision appealed from. Applicants may not proceed at their own risk during a planning board appeal.
Richard Uchida and John M. Sokul are real estate/land use attorneys at Hinkley Allen & Snyder in Concord.