Land Use Boards Discuss Impacts of New Legislation

By Alex Malm

During both the Sept. 1 Derry Zoning Board of Adjustment and the Aug. 24 Derry Planning Board workshop meeting, members discussed the changes under House Bill 1661, which affects the way local boards operate.
For the Zoning Board, members felt that one of the main changes is in the way that they do their finding of facts.
“This is the one I think is going to give us the most trouble,” said Board member Craig Corbettt.
ZBA Chairman Lynn Perkins explained that they need to have more formal findings of facts with all their decisions whether a case is approved or is denied.
“This is going to be trial and error,” said Perkins.
Perkins explained that while they don’t do official formal findings of facts now they do give their reasons for why they vote for or against an applicant. He said that it is on the fence if they need to do more going forward.
Zoning Board member Donald Burgess said that people have to have their own reasoning for voting for or against the applications.
It was pointed out by Perkins that they will be making their findings of facts in real time which could slow down the process and create a backlog.
“You are going to start slowing down the process,” said Perkins.
Perkins explained that the ZBA is different from the planning Board meaning that when the Planning Board goes to their final disposition they know what the findings of facts are going to be. He said that isn’t the case for their Board.
“We don’t have that luxury,” said Perkins.
Corbett said that he is concerned about cases being overturned on appeal if they don’t follow the process correctly. He said that it may cause longer delays for applicants but said that it is necessary especially in the short term.
He said that they should also consider having a notice for abutters tha explains that if they want to come and speak for or against an application during the meeting that they need to talk about the five criterias.
Zoning Board of Adjustment member Crystal Morin said that she was concerned that it could be argued that they are giving them legal advice by doing so.
Perkins said that they also may want to look at what their policy is when it comes to reputals by the applicant and the public.
He said that currently they allow for public input and then applicant repubatal and then more follow up rebuttals.
Perkins explained that it has been suggested at times that they may want to change it to public input and then applicant rebuttal and then it ends.
It was decided that they would discuss possible changes in the future.
At last month’s planning Board meeting, member David Nelson who attended a conference regarding the legislation said that it impacts how they do things.
One of the things that Nelson pointed to is change to the legislation regarding policy and procedures for training.
Nelson said that they would be continuing to do that as a Planning Board.
“That’s not going to change,” said Nelson.
One thing that changed however is that the state legislation allows for individual members of land use boards to become certified by passing an online certification test based on the manual.
Nelson said that they can take it anonymously or they can submit their info and get an actual certificate.
He said that originally there was discussion about making it a requirement.
“Apparently there was an attempt to make it mandatory,” said Nelson.
Zoning Board Chair Lynn Perkins who also attended the meeting said that it is something they try to encourage as a board already as well.
“We try to stay on top of that and encourage that as well,” said Perkins.
Another item that was pointed out by Nelson is that all fees that are charged to the applicants must be posted online.
It was pointed out by Nelson that it was already taken care of.
“That was an easy one to take care of,” said Nelson.
Another major area that Nelson pointed to is being required to have written findings of facts for decisions.
Nelson said that in one recent example they did written finding of facts proactively.
He explained that the intent is if there is an appeal made to superior court a certified record would be provided including things like the meeting minutes plans and other items. Nelson said that the written finding of facts would supplement that record.
Nelson pointed out that in controversial cases it was recommended that they have legal counsel work with them on it.
Planning Board Vice Chair Jim MacEachern said that he would like to see the Planning Board expand the finding of facts for when they are granting waivers as well going forward.
Nelson noted that they were looking at having a “short form” for yes votes and a longer form for no votes. He said that he thinks it requires further conversation because abutters could be aggrieved by a decision as well and having reasons for why it is approved already written out will be important.