As the population of New Hampshire continues to grow, so will new developments accommodating all the new residents and businesses. Two controversial bills now in the House and Senate may change the way local land use boards negotiate those incoming construction permits.

waiving regulations

According to current state law, planning boards can waive a regulation for subdivisions and site plans if two conditions are met: 1) following the regulation exactly would cause hardship to the applicant, and 2) enforcing the regulation would actually corrupt its original intent. House Bill 43, sponsored by Rep. Anne Grassie (D-Rochester), would only require that a waiver serve the intended regulatory goal—no hardship necessary.  

Grassie sponsored HB 43 at the request of Stratham town planner Chuck Grassie (her husband). Not only are both conditions nearly impossible to meet, he says, it’s also just not how the game has ever been played, statute or no. In fact, he says, no one ever really noticed quite how the law was written, with an “and” between those conditions instead of an “or.” 

No one, Grassie says, until the N.H. Supreme Court justices read and interpreted the law for the appeal case of Philip Auger & a. v. Town of Strafford in 2008. The court ruled in favor of Auger, and in favor of the written law. It’s not an either/or determination, the justices concluded.

When the Supreme Court ruling came down, Grassie says, planning boards across the state were stunned.  “I’ve looked at this law hundreds of times,” he says, “and I’ve worked on four boards.” No one ever noticed the “and,” so no one ever abided by it. “(HB 43) gets us back to the way we’ve been doing it all along,” Grassie says. 

But the bill has generated quite a bit of controversy among planners, according to Glenn Greenwood, assistant director of the Rockingham Planning Commission. “It’s a dicey circumstance,” he says, because this provision potentially removes the burden of proving hardship and replaces it with the guiding principle of intent. And intent, he clarifies, is perceived subjectively. 

Consistency, therefore, could be very hard to come by. But “consistent” is exactly what Greenwood says the courts expect planning boards to be. “What seems perfectly reasonable to waive in one development may be ridiculous in another,” he says. And, “If you grant one waiver, then my experience is that all developers want the same waiver.” 

HB 43 passed the House and comes before the Senate Public and Municipal Affairs Committee for its final public hearing on Thursday, May 14. 

defining hardship

As it stands now, an applicant must still prove hardship in order to convince either a planning board or a zoning board of adjustment that it should waive or vary a regulation.

The fact that there is no clear definition of just what “hardship” entails makes this determination tricky. But it got downright thorny, some people think, after a separate court ruling created two different processes for determining two different kinds of variances: one for the way a property would be used, and another for the dimensions of a development.

House Bill 446, sponsored by Rep. Neal Kurk (R-Weare) seeks to solve both these issues. According to Chuck Grassie, the dual pronged use-dimension approach is difficult for many zoning boards to untangle—particularly those staffed by regular citizens rather than trained professionals. HB 446 would return the process to one set of considerations. This would make things more clear for some small town boards, he acknowledges, but he also wonders if it would dilute the standards.  

“I don’t want to say we shouldn’t be going in this direction,” Grassie says, “but we want to be very careful.  We have to have a higher standard to get a (zoning) variance than a (planning) waiver.” 

“I think it’s actually a step in the right direction,” says Greenwood, who calls the split criteria “an ugly, less intelligent stepbrother variance process.” Greenwood also thinks that, by providing a definition for what exactly “hardship” means, it helps answer what has always been ZBA’s most difficult question. 

According to HB 446, in order to prove hardship, an applicant would have to prove that “no reasonable and economically viable use” could be made of the property without a variance, or that the purpose of the ordinance is not actually served by being applied to the property.

Existing statues and case law also require the public interest not to be compromised, that “substantial justice” must be done, and that a variance wouldn’t undermine the value of surrounding properties. HB 446 would retain all these conditions. 
The bill passed the House and comes before the Senate Public and Municipal Affairs Committee for its final public hearing on Thursday, May 14. 

Several of the words in this column may sound like they mean the same thing, but their technical distinctions are important. 
A zoning board of adjustment deals with big-picture planning issues like lot sizes and development setbacks. The ordinances that govern these issues are approved by voters (in smaller towns) or city council members (in larger cities). Variances to the ordinances can be granted, but it’s somewhat hard to do. 

A planning board, on the other hand, deals with more detailed and technical issues like parking spaces or how roads are constructed—ways to carry out the zoning ordinances, but according to standards that can change with technological developments or a community’s needs. These regulations are adopted by the planning board itself, and can be waived on a case-by-case basis by the five or seven board members in a two-step process that takes about 30 days. 
In short, ZBA ordinances are harder to vary, while planning board regulations are easier to waive.

Front Door Politics is a weekly legislative update for everyone affected by New Hampshire laws. An online learning center, additional reporting, and a blog subscription are available at www.frontdoorpolitics.com.