On June 24, 2022, the governor enacted House Bill 1661 into law. The following is a summary of the key changes to the land use planning and zoning process:
272:70 Training for Planning Board and Zoning Board Members
RSA 673:3-a authorizes but does not require training for planning board and zoning board members. It does, however, require the office of planning and development to develop standard self-training materials and corresponding tests and to provide them to planning board and zoning board members, including alternate members, free of charge. It also allows the office of planning and development to provide other types of training including, but not limited to, classroom and distance learning.
272:71 Publication of Applicant Fees
RSA 673:16, III requires all applicant fees imposed by a municipality to be published in a location accessible to the public during normal business hours. It allows a municipality to comply by posting a list of fees either in the city or town hall or on its website. It also mandates that a municipality waive any applicant fee that is not published at the time that an applicant submits an application.
272:72 Incentive for Workforce Housing
RSA 674:17, IV provides that if a municipality allows an increased density, reduced lot size, expedited approval, or other dimensional or procedural incentive for the development of housing for older persons, it may allow the same incentive for the development of workforce housing. It further states that beginning July 1, 2023, incentives established for housing for older persons shall be deemed applicable to workforce housing development.
272:73 Written Findings of Fact in a Local Land Use Board Decision
RSA 676:3, I was amended to require a local land use board decision to include specific written findings of fact that support the decision. The failure of a board to make specific written findings of fact supporting a disapproval shall be grounds for automatic reversal and remand by the superior court upon appeal, in accordance with the time periods set forth in RSA 677:5 (Priority) or RSA 677:15 (Court Review), unless the court determines that other factors warrant the disapproval.
272:74 Time Limit for Zoning Boards to Act on Applications
RSA 674:33, VIII requires zoning boards to begin formal consideration and approve or disapprove applications within 90 days of receipt. Applicants may waive this requirement and consent to an extension of time. If an applicant does not consent to an extension of time, and the zoning board determines that it lacks sufficient information to make a final decision, then the zoning board may, in its discretion, deny the application without prejudice. The applicant may then submit a new application for the same or substantially similar request for relief.
272:75 Planning Board’s Procedures on Plats
RSA 674:4,I(c) was amended to remove all language relating to a board of selectmen or city council’s ability to grant an extension of time to a planning board to act on an application.
RSA 676:4, I(c)(1) was amended to add that if the planning board determines that it lacks sufficient information to make a final decision on an application and the applicant does not consent to an extension pursuant to subparagraph (f), the planning board may, in its discretion, deny the application without prejudice, in which case the applicant may resubmit the same or a substantially similar application. It further changes the timeframe for a planning board to act on an application to 65 days.
RSA 676:4, I(c)(2) was amended to state that upon petition of an applicant, the superior court must approve the application within 30 days if the board of selectmen or city council failed to certify approval upon a planning board’s failure to act within the required timeframe. The language “if the court determines that the proposal complies with existing subdivision regulations and zoning or other ordinances” was removed.
These changes will take effect take effect on January 1, 2023.
272:76 Extension of Time for Planning Boards to Act on Applications
RSA 676:4, I(f) was amended to revoke the former authorization for a planning board to apply to the selectmen or city council for an extension of time to approve or disapprove an application.
272:77 Posting of Bond and Fee Shifting
Whenever an appeal to the superior court is initiated, RSA 677:20, I authorizes the superior court, in its discretion, to require the appellant(s) to file a bond with sufficient surety for such a sum as shall be fixed by the court to indemnify and save harmless those in whose favor the decision was rendered from damages and costs that they may sustain in case the decision being appealed is affirmed.
In an appeal, RSA 677:20, II authorizes the court to award attorney’s fees and costs to the prevailing party. Costs and attorney’s fees shall not be allowed against a local land use board unless it shall appear to the court that the board, in making the decision from which the appeal arose, acted with gross negligence, in bad faith, or with malice. Costs and attorney’s fees shall not be allowed against the party appealing from the decision of a local land use board unless it shall appear to the court that said party acted in bad faith or with malice in appealing to court.
272:78 Definition of Public Use
RSA 162-K:2, IX-a was amended to include subsection (5) in the definition of “public use” and states that if separately adopted by the municipality by the procedure described in RSA 162-K:1, “public use” includes the acquisition of real property to construct housing units that meet the definition of “workforce housing” contained in RSA 674:58, IV, whether or not such construction results from private development or private commercial enterprise. It further adds that a municipality shall not acquire property for this purpose through the powers of eminent domain.
272:79 Municipal Authority to Acquire, Construct, and Promote Residential Development and Housing Stock
RSA 162-K:6, III was amended to include subsection (j), which provides that if separately adopted by the city or town by the procedure described in RSA 162-K:1, municipalities may in conformity with the development program, within the district, acquire, construct, reconstruct, improve, alter, extend, operate, maintain or promote residential developments aimed at increasing the available housing stock within the municipality.