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Concord lawmaker wants state projects to follow local planning, zoning rules

When a private developer builds in Concord or just about any other New Hampshire community, the project has to comply with a slew of local rules governing everything from the building’s maximum height to the size of its attached parking lot. But when the state government puts up a building, it’s not required to follow those local rules.

That could change soon: Rep. Katherine Rogers, a Concord Democrat, is introducing a bill for next year that would require projects by the state and other governments, such as cities and school districts, to conform to local land-use rules.

“It’s really not fair that they can blow off the local planning and zoning ordinances and say, . . . ‘We’re going to do whatever we want,’ ” Rogers said.

Rogers said the legislation was requested by Concord officials, including Mayor Jim Bouley and City Solicitor James Kennedy, and Kennedy is helping draft the bill. Kennedy said there isn’t a specific concern that triggered the bill; “It’s just something we’ve observed generally in the statute,” he said, and the legislation may not go anywhere.

The bill’s precise language isn’t available yet, but both Rogers and Kennedy said they want to include a loophole so that a government can move forward with a vital project even if it conflicts with local rules.

“Obviously, you wouldn’t want a local land-use law to interfere with the statutory purpose of what that entity is required to perform,” Kennedy said.

Advice but not consent

Under state law, projects don’t need to comply with local land-use rules as long as they represent a “governmental use” by the state or a city, town, county, school district, public university, community college or village district. Projects that aren’t a governmental use but are located on public land don’t enjoy that exemption.

There is some chance for local input. If the project “constitutes a substantial change in use or a substantial new use,” the government has to notify the local government and planning board in writing and provide copies of its plans at least 60 days before construction begins. The local board can then hold a public hearing and offer “nonbinding written comments” on the project.

But the board doesn’t get to vote on the project, unlike private projects, which often seek variances from the local zoning board before seeking site-plan and other required approvals from the planning board.

As the state capital, Concord is a frequent site of state building projects. For example, in August the state presented its plans for renovating and reusing the Tobey School and Anna Philbrook Center buildings to the Concord Planning Board, which offered feedback. Those projects are now under way.

Gerard Drypolcher, longtime chairman of Concord’s planning board, said state officials usually make a good-faith effort to keep the city informed about projects, though they don’t always take the city’s advice.

“It’s working out pretty decently, or as best as we can expect,” Drypolcher said.

But Rogers, a former Concord city councilor and mayoral candidate, said it would be good for the state and other governments to follow the same rules as everyone else when it comes to things like signage and lighting.

For example, she said, the state could build a new liquor store out in Warner and put up a brightly lit neon sign to attract customers.

“That would change the whole area out there,” she said. “I don’t think the state would do that, but right now, they could.”

The tricky part, Rogers said, is finding a way to let the state or another government get around the local rules if necessary. The current law allows projects to bypass the nonbinding review process “in the event of exigent circumstances where the delay entailed by compliance . . . would endanger public health or safety,” a determination that must be made by the governor.

“What we’re trying to do is come up with a way that there’s an opt-out for the state so it doesn’t become a NIMBY situation,” Rogers said, using the acronym for “not in my back yard,” a term often used to describe people who oppose projects largely because of their proximity.

‘We work at it’

Mike Connor, director of plant and property management at the state Department of Administrative Services, declined to comment on Rogers’s proposed bill. He said a fiscal-impact statement, which would estimate the cost of the law change, hasn’t yet been prepared.

But even in communities with large governmental footprints, not everyone’s unhappy with the current law.

“We do not have a concern about the present statutory framework regarding government land uses in Durham,” said Town Administrator Todd Selig, who said he wasn’t aware of Rogers’s legislation. “The town and the University of New Hampshire have worked hard to be good partners and communicate actively with one another about land use issues.”

Selig said, about a decade ago, the town and UNH had a tense standoff about a proposed university sporting complex. Since then, he said, the university has worked hard to communicate with the town about major projects, respond to local feedback and coordinate on long-range plans.

“While 10 years ago we did have some concerns,” he said, “we solved those by working very hard to include one another in our respective long range planning processes, and we have established regular and ongoing meetings between our planning department and the university’s planning department to ensure there aren’t misunderstandings and projects that move forward that aren’t in keeping with our respective master plans. In practice, if the university’s going to move forward with a project, we know about it long before it comes forward.”

Selig said that doesn’t mean the town always gets what it wants. UNH’s new Peter T. Paul College of Business and Economics is under construction now, and the building dramatically exceeds Durham’s height limit for private buildings. But, Selig said, the university located the building near Durham’s downtown at the request of town officials.

“Is it perfect? No, it’s not perfect,” he said. “But we work at it.”

(Ben Leubsdorf can be reached at 369-3307 or or on Twitter @BenLeubsdorf.)

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