NHARPC CORNER: Reviewing Developments of Regional Impact in New Hampshire

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.

This article is another in a series highlighting the New Hampshire Association Regional Planning Commission's efforts to provide education on planning-related topics.

Municipal reviews of private development proposals in New Hampshire can be complicated. Local zoning and development regulations require compliance, and an array of state requirements must be considered. These state requirements include standards meant to mitigate negative impacts from altering large areas of land and standards to protect resources from degradation by development activity. Multi-level reviews are important to ensure that impacts are understood and planned for, because once built, a development will be part of the local landscape for many years.

Recognizing that some proposed developments may cause impacts beyond the boundaries of the communities in which they are proposed, the New Hampshire General Court in 1992 established RSA 36:54 - 58, Review of Developments of Regional Impact. This article reviews the law and its requirements, describes the role of New Hampshire’s regional planning commissions in the proposal approval process, and suggests some limitations of the current law.The statute’s intended results are found in its purposes section under RSA 36:54, which specifies the following:

1. Provide timely notice to potentially affected municipalities concerning proposed developments which are likely to have impacts beyond the boundaries of a single municipality.
2. Provide opportunities for the regional planning commission and the potentially affected municipalities to furnish timely input to the municipality having jurisdiction.
3. Encourage the municipality having jurisdiction to consider the interests of other potentially affected municipalities.

The law clearly was crafted to be used by the community in which a development is proposed. As a municipality reviews an application for development, it must determine whether approval of the project will have an impact on other municipalities. The purpose section also states that regional planning commissions and potentially affected municipalities are treated similarly and should be given the opportunity to provide timely comments about the development proposal.

RSA 36:56 requires local land use boards to quickly determine whether, if approved, a project could have the potential to cause regional impacts. Just as important, the statute states that if there is doubt about a project’s potential to have regional impacts, the local land use board must determine that the development has a potential impact.

The law allows regional planning commissions to develop guidelines to assist the communities in their regions in making determinations of regional impact. These guidelines should be developed with public input and, upon completion, provided to all the communities in the commission’s planning region.

The law also includes standards for each local land use board to follow when making a determination of regional impact for a proposal under its consideration. Such a determination grants abutter status to the regional planning commission and to any affected municipality. These entities must be notified like any abutter so they can offer comments during the local review process. This notification is accomplished by providing them with the minutes of the meeting at which the determination was made. In addition, an appropriate copy of the development proposal, paid for by the applicant, must be provided to the regional planning commission.

The law also offers a process for a building inspector to find that a permit being considered at the local level may have regional impacts. If no local land use board has determined previously that the proposal will have regional impact, the building inspector is authorized to notify the local governing body, the regional planning commission, and any affected communities that such a permit is being reviewed. The affected communities and the regional planning commission will then have 30 days to provide comments to the building inspector, during which time the building inspector will hold the requested permit under review.

Development of Regional Impact Process

The review process begins when a local land use board determines that a proposed development has the potential to affect neighboring municipalities and votes to determine it a development of regional impact, thereby granting abutter status to the regional planning commission and affected municipalities. Land use boards may consider a variety of possible impacts, including the relative size or number of residential units, proximity to the borders of a neighboring community, proximity to aquifers or surface waters that transcend municipal boundaries, shared facilities such as schools and solid waste facilities, transportation networks, or anticipated emissions such as light, noise, smoke, odor, or particles.

Although regional planning commissions have a clearly mandated right to review developments of regional impact, New Hampshire law is equally clear that they do not have regulatory authority. RSA 36:47 states that “a regional planning commission’s powers shall be advisory, and … nothing in this subdivision shall be deemed to reduce or limit any of the powers, duties, or obligations of planning boards in individual municipalities.” Instead, regional planning commissions use their reviews to provide additional information that will help land use boards in their deliberations, or suggest further studies or documents that could inform the decision-making process.

Some regional planning commissions in New Hampshire have developed procedures, including:

• Developing guidelines to facilitate the review of developments of regional impact. The Rockingham Planning Commission, for example, has developed an advisory document to help communities determine whether a development proposal is likely to have an impact on neighboring municipalities.
• Forming a standing committee to review—after receiving input from the project applicant, abutters, and commission support staff—project plans to determine the likelihood and scale of impacts to neighboring communities. The Strafford Regional Planning Commission’s Regional Impact Committee has detailed guidelines for conducting reviews, including a checklist of possible impacts to be considered.[1] Once its review has been completed, the committee drafts a formal letter of review that is sent to the referring land use board. This letter becomes part of the record along with any other abutter feedback.

Limitations of the Existing Law

The existing law is limited in several ways. For example, the determination of regional impact is made solely by the community in which the development is proposed. A community may have little incentive to make a regional impact determination if a project is viewed favorably or seen as economically valuable. The law could be strengthened if abutting communities were authorized to request a determination.

Due to notice requirements for public meetings and the time needed to coordinate a review and response following a regional impact determination, it is important for the regional planning commission and local land use board to communicate before a project is referred. While an application may be referred at any time, land use boards are encouraged to consider whether a project should be referred as a development of regional impact as soon as possible after the application has been accepted as complete. Although incomplete applications may be referred, their lack of information can make a thorough evaluation difficult and often slows the review process and renders it less effective.

Along with granting regional planning commissions abutter status, New Hampshire law gives them the right—and responsibility—to respond and provide comments when a proposed project is determined to have a regional impact. Regional planning commission reviews of these proposals require a significant number of staff hours, in part because such projects are typically large and complex. However, the law provides no mechanism by which a regional planning commission can bill the project applicant, or any other entity, to cover its professional staff’s review. In looking to the future, it might be appropriate to provide a mechanism by which these staff hours are compensated in some manner through the process.

RSA 36:54-58 is an important legislative response to the reality that some local development projects require a level of review beyond the municipal boundaries where the project is proposed. It provides a good framework for incorporating the concerns of potentially affected neighboring communities. Opportunities exist to allow greater involvement of those actors that are invited into the local review process when a determination of regional impact is made.

[1] http://strafford.org/cmsAdmin/uploads/Final_SRPC-Approved-Guidelines-9-29-2011.pdf