It seems that almost everywhere you look in northern New England these days, battles are raging over development rights. Nearly every day, newspaper headlines tell the tales of businesses engaged in venomous, multi-year fights with local land use boards over development plans and expansion rights, neighborhood groups battling against cell towers or box stores, and individual property owners getting caught up in the seemingly impenetrable tangle of state statutes and local regulations when trying to build an addition or put in a dock at the summer place.
In the past six months alone, the New Hampshire Supreme Court has issued eleven land use decisions - demonstrating just how highly-charged and active the complex world of land use litigation is these days.
Chances are that before long, whether through the relocation, expansion or changing nature of your business, your or your neighbor's desire to expand a residential, vacation or investment property, the actions of your neighbors, or the encroachment of undesirable development, you, or someone close to you, will face a land use issue. When you do, there are ten critical plays you can make to greatly increase your chances of a successful outcome at the Planning Board, the Zoning Board, or, if need be, in the Courts beyond.
(1) DO YOUR HOMEWORK AND BE PREPARED
If you are the applicant, obtain a free copy of your City or Town's most recent Zoning Ordinance and/or Subdivision and Site Plan Regulations from the Town Hall or the Town's website and study them. Figure out what zoning district your property is located in and whether there are any "overlay districts" (like Aquifer, Shoreline Protection, or Wetlands Districts) that control some or all of your property. Read the language of the relevant sections of the ordinance or regulations, and examine them closely for any words that might be defined in other sections. Many land use regulations are poorly written and poorly organized due to years and years of piecemeal amendments through the passage of warrant articles.
Once you have familiarized yourself with the relevant regulations, understand what it is that you need to do in order for your project to comply with the applicable regulations. Know the applicable setbacks, minimum lot sizes, permitted uses, prohibited uses, and uses allowed by special exception. Will you need one or more use or area variances (permission from the ZBA to "vary" from stated regulations if you meet certain legal criteria) or special exceptions (permission from the ZBA to engage in a use the ordinance allows only by special exception if you can meet certain additional legal criteria) in order for your project to go forward?
If you need a variance or a special exception, most land use ordinances provide you with the list of legal criteria you must prove up in order to be granted such a variance or special exception. Be sure you know what these criteria are, and that you have the necessary hard evidence to establish that you meet each one. The failure to establish even one of these criteria can result in the denial of your request, and the demise of your proposed project.
If you are the applicant, you will also want to work hard to establish good relations with your abutters and near abutters. Talk to them in advance about your proposed project, and listen to their concerns and try your best to address them whenever possible. Town Boards pay special attention to the comments of these individuals in considering your land use case - and the non-objection to a proposed project by your abutters goes a long way toward simplifying its approval by the Board.
Remember that all applications before Planning Boards and Zoning Boards are matters of public record, and pursuant to N.H. RSA 91-A, must be made available for public inspection upon reasonable notice. Thus, if you are contesting a proposed project, your first step should be to go to the Town Hall, obtain a copy of the application file, and thoroughly read it until you understand the project. Then, it is your job to attend the hearings, make your objections in writing, and hold the applicant to his burden of proof.
(2) KEEP ALL CORRESPONDENCE WITH TOWN OFFICIALS IN WRITING
The days of casual conversations, oral understandings, and handshake agreements with Selectmen, Planning Board members, and Zoning Board members are long gone. Today, the scrutiny on elected and appointed local municipal officials is significant, and these well-meaning volunteers can often find themselves knee-deep in unexpected objections to even the most innocuous seeming projects.
Your application before a local land use board is a legal proceeding, and should be handled with the requisite care and formality. Keep everything in writing, and keep copies of any and all correspondence from any Town official, be it a voicemail message, an email, or a letter.
(3) HIRE THE NECESSARY EXPERTS
If your land use case involves the construction of a building or addition, the subdivision of land, the re-drawing of boundaries, or impacts upon wetlands, be sure to hire the necessary experts that the Board will want to hear from, request their drawings, plans, and/or reports well in advance, and be sure that these individuals will be available to testify on the nights of your hearings, and answer any questions that the Board may have about their plans or reports. Typical testifying experts at these hearings include architects, engineers, soil and wetlands scientists, surveyors, and certified appraisers.
Do not try to reduce your costs by foregoing the use of these experts in your land use case. The importance of establishing a clear, comprehensive and comprehensible record before a local land use Board cannot be overstated. Today, the employment of these individuals for your land use hearing should simply be viewed as a cost of doing business.
(4) SUBMIT ALL INFORMATION IN WRITING BY THE "PACKET DEADLINE"
Whenever possible, avoid submitting anything to the Board on the night of the hearing. These Boards are made up of volunteer citizens with jobs and lives unrelated to their duties to the Board. Give Board members the respect they deserve by providing them with materials in advance, and thus, giving them time to consider the merits and details of an application before attempting to rule on it.
In most Cities and Towns, the "packet deadline" for applications is a date during the week prior to the hearing. This is the date that packets are assembled and distributed to Board members in advance of a land use hearing. Your written materials, plans, and visuals should be submitted to the Town early enough so that they can be included in these packets. The better a Board member understands your position on an issue, the better off you will be.
(5) MAKE ALL LEGAL POINTS IN A WRITTEN MEMORANDUM PREPARED AND SUBMITTED TO THE BOARD IN ADVANCE
The aforementioned advice applies even more strongly when you are submitting legal arguments to a Board composed primarily or entirely of non-lawyers. Whether prepared by you or by your lawyer, any legal argument should be presented in a memo of law submitted no later than the packet deadline. This will allow time for the Board members to consider your legal arguments, and consult with their Town Counsel if they deem it appropriate to do so.
(6) HIRE A STENOGRAPHER TO PREPARE A CERTIFIED WRITTEN TRANSCRIPT OF ALL HEARINGS IN ANY MAJOR DISPUTE
It is critical to remember that in any land use case, your hearing or hearings before the Planning Board or the Zoning Board of Adjustment may be only the first of several legal steps necessary to get your issue resolved. If you win or lose at the Planning Board, either you, your opponents, or the Town itself may choose to appeal that decision to either the Zoning Board or directly to Superior Court. If you lose at the Zoning Board, you, your opponents, or the Town may choose to appeal that decision to the Superior Court.
Once your case reaches the Superior Court level, a judge will be asked to determine whether the decision before the Planning or Zoning Board was proper. How is this judge supposed to make this determination without a clear understanding of what happened at those hearings?
Yes, there are minutes taken of those hearings, and yes, some of those hearings are even audio taped and/or video taped. These days, some of them are even broadcast on local access television.
But here's the problem.
Written minutes depend entirely on the attention and accuracy of the minutes-taker. I've attended hearings in Towns - no joking here- where the minutes of those hearings were taken in pencil by an elderly woman with a hearing aid. I've also been involved in hearings where audiotapes had significant gaps in them because the attendee failed to notice that the tape had run out. Tapes of hearings also have a habit of getting lost or damaged. And no judge is going to sit through a three or four hour DVD of a ZBA hearing.
The written record of the hearings before the Planning Board and/or the Zoning Board is critical, because it is upon this record that all subsequent legal proceedings will be based and decided. You must be certain that this record is as clear as it can be - and in my view, that means nothing less than a certified written transcript, prepared by a court stenographer, will do. This way, you can be certain that every word, every argument, and every utterance will be captured in the record. You want to be sure that two years from now, when your case is heard by the New Hampshire Supreme Court, your appellate brief can point to the specific places in the local hearings where you allege that legal error was made, and, in reading your brief, the judges in that Court who will decide your case can read a blow-by-blow transcript of the hearings, follow along, and see for themselves exactly what happened that night.
Preparing such a transcript is a significant additional expense - often $300-400 per hearing, but these days, I rarely accept a land use case without an agreement by the client to this expense. There is simply no substitute for it.
(7) KNOW THE BURDEN OF PROOF AND WHO MUST CARRY IT
Remember that a large majority of land use disputes are fact-driven, and the legal outcome of these disputes (whether a variance is granted or denied, whether a special exception is granted or not, etc.) often turns on who has the burden of proof to convince the Board that a particular position should prevail. If you are the applicant, in most cases, you have the burden of proof to provide the Board with sufficient evidence on each legal element to allow them to find in your favor. If you are a party opposing an application, you should be looking for opportunities to submit evidence that contraindicates one or more of the applicant's elements of proof - and, of course, to point out to the Board immediately any situation in which the applicant has failed to carry his burden of proof on one or more of the required elements of his application.
Although these arguments do not always carry the day at the local level, these are the legal arguments that most often cause judges to reverse the decisions of local boards.
(8) ASK FOR THE RECUSAL OF ANY BOARD MEMBER WITH A CONFLICT OF INTEREST
Part I, Article 35 of the New Hampshire Constitution requires that all judges be "as impartial as the lot of humanity will admit." This requirement of impartiality extends to all municipal officials, Selectmen, and members of Zoning and Planning Boards. It is an axiomatic principle of New Hampshire law that a conflict of interest exists when a public officer acts or votes on a matter that his conduct indicates that he has prejudged, or in which he has a direct personal or pecuniary interest.
There are several ways that a conflict of interest can manifest itself. First, no municipal official should act, vote, or, while acting in an official capacity, attempt to influence a matter involving abutting or neighboring land. A municipal official's ownership of land abutting or proximate to the land at issue is a per se conflict of interest that requires the official's disqualification. Similarly, any municipal official who has prejudged an application, either by speaking out against it or its general subject matter, editorialized about an application or its subject matter in a newspaper or in an online forum, or who has been overheard taking a position on an application or the individuals behind it should be asked to disqualify himself.
If you suspect a lack of impartiality on the part of one or more Board Members, you should submit a Motion to Recuse that member or members in writing in advance of the hearing. The Motion should contain the specific reasons for the perceived conflict, and should be renewed orally at the beginning of the hearing if not immediately acted on by the Chair of the Board. Be forewarned - you do not have an absolute right to have someone recused. It is your right to make your case for the record, and to ask the individual to recuse himself. You may also ask the Board to vote on whether the Board as a whole believes the individual should recuse himself. Ultimately, however, the final decision rests with the individual Board member asked to recuse himself. This is why the development of the record is so important - as the participation in a hearing by any Board member who should have been disqualified is sufficient to legally invalidate the Board's decision. Under New Hampshire law, this is true even if the Board member's vote was not the deciding one - as it is impossible to estimate the influence that one Board member may have had on the decisions and votes of the others.
Although the vast majority of municipal boards are composed of rational and well-intentioned citizens, in rare cases, you may run into a fiefdom of entrenched individuals blindly committed to a particular agenda. Rest assured that the law provides for such cases. In addition to your right to request recusal, there are both federal and state causes of action that protect your Constitutional property rights, and prevent overt abuses of power.
(9) USE VISUALS AND KEEP YOUR PRESENTATION ORGANIZED, PROFESSIONAL, AND AS SIMPLE AS POSSIBLE
On the night of your hearing, meet with your team at least an hour in advance, and sketch out a plan to ensure that your presentation is organized, professional, visual, efficient, and as simple as possible. In nearly all cases, your application, or opposition to an application will be aided by visuals - so by all means, present the Board with blown up maps or plans to make it easier for them to follow along with your arguments. Try to avoid needless repetition. The best presentations open with a quick overview of what you will be arguing to the Board, and who will be presenting what arguments. Be sure that the person most well-versed in a particular area presents that issue to the Board.
Answer all questions from the Board and from abutters or other interested individuals as directly, clearly, and respectfully as possible. While many hearings become emotional, resist the urge to respond to emotion with emotion - no matter how outrageous the statements or allegations made against you or your project.
Finally, if there have been no questions from the Board by the time your presentation concludes, by all means, solicit them! You want to be certain that the Board understands the project and all of its attendant issues before the public hearing section of the meeting is closed - because once that happens, there is no further opportunity for your input, even to clarify something that the Board has misapprehended.
(10) KNOW YOUR AVENUES OF APPEAL AND WATCH THE DEADLINES
The precise appellate procedure from the adverse decision of a municipal official or a Planning or Zoning Board, and in particular, the required timeframe for such an appeal can vary from town to town, and represents one of the biggest traps for the unwary in all of land use litigation. Statutes allow local boards to determine what constitutes a "reasonable time" for an aggrieved individual to take an appeal, and these deadlines can be as short as 10 days from the night of the decision. The failure to properly perfect an appeal to the proper Board or Court can result in the waiver of your appellate rights - an outcome that, although undeniably draconian, is very often upheld by the courts.
Accordingly, if you intend to appeal an adverse decision of a municipal official or Board, be certain that you know the proper avenue of appeal and the deadline for such an appeal based on the specifics of your individual case.
A FINAL THOUGHT
Given the complexities of these land use regulations, their tight and often inconsistent deadlines, and the many pitfalls for the unwary that plague these cases, you should seriously consider hiring a lawyer to represent your interests in any meaningful dispute over land. Be sure that the lawyer you hire has a strong track record in land use litigation and practices in this area regularly - as the legal landscape in this area changes quickly and often. Finally, don't just hire a lawyer to take your land use appeal to court. Be sure to involve your lawyer before your first hearing at Planning or Zoning Board, as this is the stage when the "record" of your case is indelibly established - and a time when a skilled lawyer can make a real difference.
This article is intended to serve as a summary of the issues outlined herein. While it may include some general guidance, it is not intended as, nor is it a substitute for, legal advice. Your receipt of Good Company or any of its individual articles does not create an attorney-client relationship between you and Sheehan Phinney Bass + Green or the Sheehan Phinney Capitol Group. The opinions expressed in Good Company are those of the authors of the specific articles.
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