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The Not-So-Clear Role of Zoning Boards

June 2010

At first glance, the recently passed House Bill 1380 may seem benign. It simply grants a local zoning board of adjustment (ZBA) the ability to hire its own technical experts at the expense of an applicant when considering land use proposals. While the bill merely clarifies an authority that many believe already exists,HB1380 also has the potential to cause overlapping of ZBA and planning board jurisdictions, making it more difficult and costly to obtain land-use permits. This could grow into a very big problem for developers.  

When the Legislature openly condones (and therefore encourages) zoning boards to hire soil and wetland experts to review technical matters, they are saying that it is okay to function more like a permitting authority. As a quasi-judicial body, a ZBA is supposed to act in a similar fashion to a court of law.  Their main purpose is to safeguard against absurd and pointless outcomes when the regulatory scheme of a city or town does injustice to a land use application. In such cases, a ZBA may grant relief in three ways: variances to zoning ordinances, special exceptions and appeals from administrative decisions. Their role is vital as a safety valve for land owners to seek remedies when zoning and regulation is unfair in a particular situation.  

In reality, ZBAs should rarely need technical experts for the types of applications that come before them. Simply put, ZBAs exist to dispense justice while planning boards exist to dispense permits. A ZBA should be looking at land use from a mile-high view and not through a microscope. The more ZBAs and planning boards are encouraged to look at the same issues and ask the same types of questions, the greater the chance for double jeopardy. The duplication of reviews is not only more costly and time consuming for applicants, it greatly increases the chances that a project will be denied. 

HB1380 was prompted by the lawsuit of Continental Paving v. Town of Litchfield.  Ironically, the outcome of the suit would be unchanged even if the new law was in place at the time.  The case involved an appeal by Continental of the denial of a special exception by the town’s ZBA to build a gravel road across a property in Litchfield. The road, which was for the occasional and private use of a sportsman’s club, was to be 67 feet from a vernal pool. The Litchfield zoning ordinance allows roads within 200 feet of a vernal pool only by special exception, which go before the ZBA by law.   

The criteria for a special exception in Litchfield reads in part “The burden of proof shall be upon the applicant who shall furnish such engineering and hydrological data as is reasonably necessary.” Continental retained two experts, a wetland scientist and a field biologist. Both testified to the ZBA that the pool would not be adversely impacted by the proposed road and that best management practices would provide adequate protection. Licensed professionals do not make such statements lightly and there was no expert opinion to contradict these findings nor any evidence that would undermine the credibility of these experts. Continental met their burden of proof for a special exception but the application was denied anyway, twice in fact.   

The ZBA claimed that they relied on a pamphlet published by the Audubon Society in 1998 that recommended a minimum 100 foot no-disturbance buffer surrounding vernal pools. The court was unimpressed. Although the pamphlet discussed vernal pools generally, it did not consider the particular vernal pool in question and did not directly address the experts’ conclusions; thus it was insufficient as a rebuttal to the professional testimony. The court stated that a municipal board cannot simply ignore the testimony of experts in favor of recommendations from a leaflet by some non-profit.   

It is important to note here that at no time did the Litchfield ZBA seek peer review of the expert testimony. They certainly could have asked for another wetland scientist to look at the pool and report back to them, all at the expense of the applicant. They simply chose not to.  The court ruled in favor of Continental, and the special exception was granted. 

As a result of this ruling, some municipal attorneys worried that a lack of any rebuttal testimony in the face of supporting expert testimony must necessarily lead to a favorable conclusion for the applicant. Well, yeah. When you are faced with a technical question and armed with an answer from a qualified professional with no contrary opinion from any credible source, what other conclusion can you reasonably draw? As a ZBA, you did your job; you worried about it, you asked the expert, he told you there was nothing to worry about, and you’re done. 

Indeed, the Litchfield attorneys tried to argue that this logic eviscerated the ZBA’s ability to make judgments about testimony and credibility. They reasoned that the Audubon pamphlet amounted to personal knowledge possessed by board members, which could cause them to doubt the expert testimony. Would this mean that every municipal board possessing an Audubon pamphlet from 1998 must necessarily deny all applications for disturbance within 200 feet of a wetland? One would hope not.  

Granted, in a hypothetical situation where an applicant provides the needed proof through licensed experts but refuses to pay for corroboration from a third party, a ZBA would have a problem unless the law addresses their right to that third party. This is the essence of HB 1380, which envisions this possibility and clearly authorizes the ZBA to hire its own gun on the applicant’s nickel. Fair enough. No one is arguing that towns should have to absorb this expense. 

That said, this brings me back to my main source of heartburn with this bill.  Why is a ZBA considering detailed and technical evidence about vernal pools in the first place? Isn’t this the stuff of planning boards and conservation commissions? Discussion of vernal pool impacts falls under the area of environmental permitting and therefore better suited to procedures before planning boards who deal with such matters all of the time. Had this been a conditional use permit before a planning board rather than a special exception before a ZBA, there would have been peer review of the technical reports and testimony. This is what planning boards do. 

That’s the real problem in this situation and HB1380 is fixing the wrong problem.  Litchfield simply has to change their ordinance to direct vernal pool impacts to the planning board and the conservation commission.  The Legislature should instead work on a better definition of the differences between ZBAs and planning boards.  Extending both boards the same authority only blurs their distinctions and confuses everyone. 

In fact, hiring experts to work on behalf of planning boards is so commonplace, and oftentimes abused, that the Home Builders & Remodelers Association of New Hampshire had to champion a bill to bring accountability to the practice.  (Note: that bill passed and is now law.) Will zoning boards now get trigger-happy with expensive experts as well? Worse, imagine if you have to convince a ZBA that your project does no harm to the environment although it does not technically follow the regulations. If you are lucky enough to get the first approval, does that mean that the planning board will not be able to pursue those same inquiries? Put another way, do we have to win the same fight twice before two different boards?   This thought is especially chilling when you think about how ZBA members often quarrel with their planning board counterparts. It’s natural, production always hates sales.  Hands up, who likes the idea of having to get the same “yes” vote from two boards who don’t like each other? Anyone? 

Although the HBRANH was able to inject language into HB 1380 to discourage this duplication of review, the underlying objection remains unaddressed.  As land use applications and their appurtenant hurdles (permits, variances, etc.) become increasingly complicated, it is vital for the respective boards and authorities to stay within their sphere of knowledge and jurisdiction. ZBA matters are bewildering enough already. Let’s not complicate things further by creating the Conservation Planning Board of Zoning Adjustment.    

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