Opinion: Proposing a local control amendment

By JAMES W. MCCONNELL

Published: 08-18-2023 6:00 AM

James W. McConnell of North Swanzey was previously a state representative (2014-18) for Swanzey and Richmond.

Recent state land use initiatives have circumvented zoning and planning boards’ authority and local considerations in favor of developers. In a particularly egregious case, a proposal to establish a Housing Appeals Board, with the authority to review and overrule local objections to a project, was passed (SB 306, 2019) by the Senate, tabled in anticipation of a defeat in the House and, at the governor’s insistence, attached to the 2019 budget and signed into law. As predicted by the bill’s opponents, it almost never rules against developers.

As New Hampshire is a Dillon’s Rule state, the state has the authority to control New Hampshire municipalities. This power stemmed from an 1868 Iowa Supreme Court decision, City of Clinton v. Cedar Rapids Missouri River Railroad Company, authored by Chief Justice John F. Dillon.

Justice Dillon’s decision included the following. Municipal corporations owe their origin to, and derive their powers and rights wholly from, the legislature. … Unless there is some constitutional limitation on the right.

Note that Justice Dillon’s decision acknowledges the obvious: that this authority may be limited by a state’s constitution. To that end, I offer the following Local Control Amendment for the Legislature’s consideration.

“Municipal zoning ordinances and land use regulations, the village districts with zoning authority and Coos County which has zoning authority over unincorporated places in the North Country, shall govern proposed construction and changes to existing land use, whether non-infrastructure government or private. Projects seeking changes, variances or waivers to zoning ordinances or land use regulations may not be considered without the approval of all civic, veteran, fraternal and not-for-profit association property owners affected.”

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“Projects including changes, variances or waivers to zoning ordinances or land use regulations require a financial impact statement made public no later than 45 days prior to the election, including projected municipal, village, county and educational costs, detailing any tax credits or contractor subsidies and listing any projected tax increases. Projects including changes, variances or waivers must be individually approved by three-fifths of the qualified voters present and voting on the subject at the annual municipal, village or county election. If any provision of this amendment shall be held or made invalid or by any federal court decision, the remainder of this amendment shall not be affected thereby.”

A brief explanation of some of the amendment’s language is necessary to fully understand the considerations which went into its preparation. The reference to “non-infrastructure government” addresses the New Hampshire Supreme Court’s 1973 decision in McGrath v. City of Manchester which held that New Hampshire municipalities are not bound by their own zoning ordinances when performing governmental functions unless there is a regulation requiring municipal compliance.

In addition to requiring local zoning and planning, the amendment also requires consideration of certain property owners affected by proposed changes to existing policies. With that in mind, a brief summary of the U.S. Supreme Court’s thinking and decisions follows.

In 1926, the U.S. Supreme Court decided the first significant case regarding zoning in Village of Euclid v. Ambler Realty Co. In this landmark case, the Court held that there was a valid government interest in maintaining the character of a neighborhood and in regulating where certain land uses should occur. The court has never heard a case seeking to overturn Euclid.

In 1928, the U.S. Supreme Court, in Nectow v. City of Cambridge, decided that governmental power to interfere by zoning regulations with the general rights of the landowner by restricting the character of the landowner’s use is not unlimited, and such restrictions cannot be imposed if it does not bear a substantial relation to the public health, safety, morals or welfare.

A 1928 case, Washington ex rel. Seattle Title Trust Co. v. Roberge, was decided in favor of the trustee, who sought to build and was denied by the Washington State Supreme Court. This decision, however, was overturned because of inconsistencies in Seattle’s complex zoning laws and, importantly for our purposes, because it arbitrarily permitted any individual landowner within 400 feet of the land in question, regardless of any use the landowner might have put the property to or how much property the landowner owned, to object and prevent the proposal’s approval.

The language I have included addresses the public health, safety, morals or welfare consideration stipulated and provides protections for civic, veteran, fraternal and not-for-profit associations affected. In practice, I would anticipate that developers would make an effort to overcome any objections from these groups. Nothing in this amendment precludes local authorities from further extending such protections as deemed appropriate in their zoning and planning policies.

The Financial Impact Statement is an accepted form of government review that is frequently used to inform ballot questions and consistent with the requirement that any decisions bear a substantial relation to the public health, safety, morals and welfare. The requirement that it be available for public consideration 45 days in advance of any vote is not unreasonable.

Approval by three-fifths of qualified voters present and voting on the subject is not inconsistent with the vote required for other significant questions.

It is important to recognize that when a constitutional amendment is adopted, New Hampshire statutes must conform to the amendment and not the other way around.

An amendment to the New Hampshire Constitution must be considered by the New Hampshire House of Representatives and passed by a 60% supermajority. It must then be considered by the New Hampshire Senate and also passed by a 60% supermajority. Finally, it must be considered at the next general election and passed by a two-thirds supermajority. The governor has no constitutional role in this process.

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