Land Use Regulation Immunity and Governmental Land Uses

The information contained in this article is not intended as legal advice and may no longer be accurate due to changes in the law. Consult NHMA's legal services or your municipal attorney.

Whether or not a governmental user of land is exempt from complying with local land use regulations requires applying the language of RSA 674:54, Governmental Land Uses. However, to completely understand whether a governmental use of land is exempt from local land use regulations requires more than reading and applying that statute. RSA 674:54 only creates a procedure whereby a governmental user of land must participate in a process of receiving non-binding comments on a proposed use of land for governmental purposes. The underlying immunity from local zoning and planning regulations enjoyed by governmental entities derives from decisions of the NH Supreme Court. 

Supreme Court rules in 1973 certain governmental uses exempt from zoning regulations
In two decisions issued by the NH Supreme Court in 1973 the Court declared that a county and a city are not bound by local zoning rules. In Opinion of the Justices, 113 N.H. 217 (1973) the Court issued an advisory opinion to the house of representatives that New Hampshire adopts the majority rule that a county is not required to comply with a city zoning ordinance in the erection and construction of a courthouse. Then in McGrath v. Manchester, 113 N.H. 355 (1973), the Court applied that rule by holding that the City of Manchester was not bound by its own zoning ordinance in the construction of a parks and recreation garage for the repair and maintenance of vehicles. In both instances the Court explained that a governmental entity is not required to comply with a local zoning regulation for a land use project that is an essential function of government. The Court also noted that the extent to which any governmental unit shall be immune from zoning requirements is a matter within legislative control; but the New Hampshire enabling act was silent upon the subject.

Legislature enacts RSA 674:54 codifying how governmental uses are reviewed
This silence on governmental zoning immunity in our zoning enabling act changed in 1996. RSA 674:54 was enacted that year, Senate Bill 11, 1996 NH Laws Chapter 262. In testimony to the N.H. Senate Public Affairs
Committee on January 19, 1995, NHMA Legal Counsel Bernie Waugh explained that the “bill’s purpose is to clarify the extent to which governmental uses of land must comply with the same requirements private landowners must comply with.” As he explained, while the N.H. Supreme Court had declared in McGrath v. Manchester, 113 N.H. 355 (1973) that local governments were exempt from zoning regulations, left unresolved was whether governmental uses of land must comply with subdivision and site plan review. The bill as proposed would have required governmental land uses to comply with local subdivision and site plan review requirements. Relative to the Application of Local Land Use Regulations to Governmental Units. SB 11, 1995 & 1996 Sessions (N.H. 1996), https://gencourt.state.nh.us/BillHistory/SofS_Archives/1996/senate/SB11S.pdfhttp://www.gen.court. state.nh.us/bill_Status (Jan.19, 2015 hearing, Remarks of Bernard Waugh, Testimony, 34)

However, the bill as adopted that became law as RSA 674:54 did not address whether governmental uses would have to comply with subdivision and site plan review requirements. The only reference to this issue in the statute is in paragraph II where it is stated that “[t]he governing body or planning board may issue nonbinding written comments relative to conformity or nonconformity of the proposal with normally applicable land use regulations to the sponsor of the governmental use within 30 days after the hearing.” This language suggests that not only is a governmental user of land exempt from zoning regulations but also exempt from compliance with subdivision and site plan regulations. The original version of RSA 674:54 as introduced in 1995 was written to require governmental users of land comply with subdivision and site plan review, and
this provision was not adopted; nevertheless it would be reasonable for local land use administrators to presume all local land use regulations do not apply to governmental land uses, including site plan review and maybe subdivision approval.

But what about subdivisions of land used for governmental purpose?
The only statutory question that remains is whether RSA 674:54 was meant to override the requirements of RSA 676:16, and RSA 676:18, that impose penalties for subdivisions not approved by the planning board. Given that subdivisions of land should be accurately recorded in a municipality’s tax records, and recognizing that some subdivision regulations could interfere with essential governmental functions, waving strict compliance with all subdivision requirements to facilitate the approval of a plat or plan that sufficiently memorializes the division of land would be appropriate.

Procedural Requirements of RSA 674:54
RSA 674:54, II does require a governmental user of land to participate in a hearing process before the select board or the planning board when undertaking a new use or a use that is a substantial change of an existing
use. The identified governmental users are listed as “the state, university system, community college system of New Hampshire, county, town, city, school district, or village district.” The statute requires the following:
• The proposed governmental use shall give written notification to the select board and the planning board about the proposed governmental use of property where the undertaking is a substantial change in use or a substantial new use.
• Written notification shall contain plans, specifications, explanations of proposed changes available at the time, a statement of the governmental nature of the use and a proposed construction schedule.
• Such notification shall be provided at least 60 days prior to the beginning of construction.
• Either the select board or planning board may conduct a public hearing relative to the proposed governmental use.
• Any such hearing shall be held within 30 days after receipt of notice by the select board or planning board.
• A representative of the governmental use which provided notice shall be available to present the plans, specifications, and construction schedule, and to provide explanations.
• The select board or planning board may issue nonbinding written comments relative to conformity or nonconformity of the proposal with normally applicable land use regulations to the sponsor of the governmental
use within 30 days after the hearing.

Non-Governmental Uses of Government Land and municipal Solid Waste Facilities in another municipality fully subject to land use regulations
RSA 674:54 contains the following exemption limitations:
• Any use, construction, or development of land occurring on governmentally owned or occupied land, but which is not in furtherance of a public purpose which is statutorily or traditionally a governmental in nature
shall be fully subject to local land use regulations.
• The construction and operation of any solid waste disposal facility on land owned or occupied by any city or town within another city or town shall be subject to local land use regulations to the same extent as if the land were owned and occupied by a private entity, unless the solid waste facility is on land owned by a solid waste management district formed under RSA 53-A or RSA 53-B or any combination of municipalities
authorized by an act of the general court, if the land is located within a city or town that is part of the district.

Stephen Buckley is Legal Services Counsel with the New Hampshire Municipal Association. He may be contacted at 603-224-7447 or at legalinquiries@nhmunicipal.org