Concord Representative Proposes Bill to Compel the State of New Hampshire to Comply with Local Land Use Rules

By: Jay Surdukowski, Esq.

Representative Kathy Rogers of Concord, a Democrat, is planning to introduce a bill that would force the State of New Hampshire to comply with local land use regulations. Under current law, the State, various types of municipalities (e.g., towns, school districts), and the university system of New Hampshire do not need to abide by local land use ordinances which govern development and construction of building projects so long as the building serves a legitimate governmental purpose. The law, codified at RSA 674:54, also provides that projects of the State and other governmental bodies exempted from local land use ordinances may be subject to a public hearing held at the discretion of local land use bodies for the purposes of vetting a project and providing non-binding comments on the conformity or nonconformity of the project with normally applicable land use regulations. In other words, the State may chose to abide by comments from local officials or ignore them, in its complete discretion.

Representative Rogers, Mayor Jim Bouley, and Concord City Solicitor Jim Kennedy believe this system of State immunity from land-use requirements must change. Representative Rogers intends to introduce her bill at the urging of Kennedy and Bouley. Representative Rogers was quoted in a recent Concord Monitor article as stating that “it’s really not fair that they can blow off the local planning and zoning ordinances and say, … ‘we’re going to do whatever we want.'”

The bill, which is in the preliminary stages of being drafted, is not being introduced as a response to any particular land use controversy in Concord. Rather, the proponents believe this to be a long-term statutory flaw which should be remedied in this new session.

Representative Rogers is a particularly appropriate legislator to champion this change. Rogers was a long-time Concord City Councilor representing the Heights and is familiar with the workings and interplay between State and local regulations of all kinds.

Stay tuned to the State House this session to see whether this bill gains support or whether some municipalities may balk at the idea. One objection that municipalities may lodge is that although they would like to bind the State to their local ordinances, they may not necessarily want the rest of the law to change which exempts municipalities from the regulations of each other. A classic example is a multi-town school district building which a district may seek to build in a portion of a district which crosses the lines of several towns or cities. Such districts may prize the convenient immunity they now hold from land use red tape and would not want to jump through onerous local land-use requirements.

For information on the firm’s practice in this area, please contact Jay Surdukowski, Member of the firm’s Real Estate, Development and Environmental Practice Group.