Property rights vs. local control: Who really decides what you can do with your land?

From the property owner’s perspective, it seems – naturally – that the owner of a piece of land should be able to decide how it is used. Live free or die, right?

Alas, as with many legal principles, the answer is not quite so simple. In fact, both your city or town and your neighbors have rights that could directly impact what you can do with your property.

Municipal control vs. private property rights

For most residents and business owners, buying land includes the expectation that you can use it however you choose. At the same time, every town and city in New Hampshire is authorized under state law to adopt regulations – including zoning regulations, site plan regulations, and subdivision regulations – that establish rules limiting the use of private property. These regulations are intended to protect the public health, safety and general welfare, and to promote communitywide goals like orderly growth and compatible land uses.

These regulations inherently limit what a property owner can do with his or her land. For example, a municipal regulation might forbid a manufacturing use in a residential neighborhood, or limit the size of accessory dwelling units. Recent state law changes, like the mandate that accessory dwelling units must be allowed by right in single-family zones, reflect ongoing legislative efforts to balance local control with broader, statewide policy goals.

The New Hampshire Supreme Court has long recognized this tension between individual property rights and municipal authority, recognizing the inevitable and necessary conflict between a property owner’s right to enjoy and use private property and a municipality’s right to regulate the use of land within its borders.

In an effort to achieve a workable balance, state law requires that local ordinances be reasonable – not arbitrary – and bear a fair and substantial relationship to legitimate public purposes like health, safety and the general welfare. In addition, there are escape hatches – like a property owner’s ability to request a variance – that allow for flexibility when unique circumstances are at play.

Disputes can, and often do, arise between municipalities and property owners in relation to the application of municipal regulations. Most commonly, these disputes take the form of appeals of planning board decisions (e.g. denial of a site plan or subdivision application) or zoning board decisions (e.g. denial of a variance or special exception application).

These appeals are governed by specific statutory schemes, which lay out particular requirements and timeframes that must be followed in order to preserve appellate rights.

Simple appeals follow a truncated procedure in the courts – they are “closed universe” appeals, meaning that unless special circumstances warrant otherwise, the court will only consider the evidence that was presented to the local board whose decision is under appeal, and the parties will not engage in discovery. The parties will generally have the opportunity to submit a written argument, and will then appear for a hearing at which they will make their case to the judge.

Private property rights vs. private property rights

Every owner of real property has a right to quiet enjoyment of that property. This right can lead to limitations on the use of a neighboring property where that use – often referred to as a “nuisance” – unreasonably interferes with another property owner’s right to quiet enjoyment. In addition, disputes between neighbors can arise out of things like easement or access rights or questions surrounding the location of a property line, among others.

With some exceptions, local planning and zoning boards cannot resolve private property disputes. Rather, these disputes – if they cannot be resolved informally, which I highly recommend if at all possible – follow a more traditional procedure in court, pursuant to which the parties have the opportunity to engage in discovery and ultimately have a trial before a judge or a jury.

This process can take significantly more time, and be significantly more expensive, than an appeal of a local planning or zoning decision, often lingering on the court’s docket for 12-18 months or longer. That said, if you have a dispute with a neighbor that relates directly to a violation of a local ordinance provision, your first stop should be to your local code enforcement officer, who may be able to step in and try to correct the issue in a way that avoids the hiring of any pesky lawyers.

What this means for property owners

It is important for every property owner to understand these tensions and processes. In particular:

Towns and cities can regulate land use to advance the community interest, but those regulations must be rooted in legitimate public purposes and must not be arbitrary. The courts play an essential role in ensuring that property owners are not left without recourse when local restrictions unreasonably limit the use of property.

Private disagreements involving boundaries, access, easements, or the like are separate matters for civil courts, and are generally not appropriate for consideration by local planning or zoning boards.

In short, local control and private property rights are both vital parts of New Hampshire’s legal landscape. If you find yourself in a dispute with either a municipality or another property owner, it’s best to check in with an attorney, as differing procedures and standards will apply based on the type of dispute.