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Recent Amendments to Land Use Statutes

Individuals who are involved in real estate development, as well as the municipalities who are charged with the regulation of such development should be aware of two statutory amendments that were recently adopted by the New Hampshire Legislature.

There was formerly a split among New Hampshire municipalities as to how they treated the lifespan of variances and special exceptions. Some communities imposed no limit on the time period within which an applicant might exercise a variance or special exception and other communities imposed time limits as short as a year after approval. During the last legislative session, RSA 674:33 was amended [effective August 19, 2013] to provide, for the first time, that special exceptions and variances that are granted by zoning boards of adjustment shall expire if they are not exercised within two years after the date of final approval, unless the local ordinance or the zoning board of adjustment approves an extension of that time period “for good cause”. Under this new statute, it would appear that all municipalities are now subject to the same two-year rule. The amendment to the statute also clarifies that, if a variance or special exception is granted in a matter that also requires separate planning board approval, the special exception or variance will be effective for six months after the planning board approval, even if the planning board approval is not received within the two-year period after the original grant of the variance or special exception.

The amendment does not address how municipalities should treat unexercised and unvested variances or special exceptions that were approved more than two years prior to the effective date of the amendment, and had not already expired under local law by that date. However, it would be reasonable to assume that applicants should have a period of two years from the effective date of the statute to exercise such prior variances or special exceptions.

The second statutory amendment attempts to clarify and simplify the appeal process from certain land use decisions. Under former law, any planning board decision that involved the planning board’s interpretation of the zoning ordinance had first to be appealed to the zoning board of adjustment before it could be appealed to Superior Court. All other appeals of planning board actions had to be appealed directly to the Superior Court. This dual appeal track created confusion and frustration among participants in the land use review process, because it required applicants to file and pursue appeals of the same matter in two different venues at the same time. Under the newly enacted amendment to RSA 677:15 [effective August 31, 2013], a party must first appeal matters over which the zoning board of adjustment has jurisdiction to the zoning board of adjustment, following which, appeals of all issues may be taken to the Superior Court. This much-needed amendment simplifies the appeal process, and enables zoning boards of adjustment and courts to handle land use appeals in a more efficient manner.