Land Use and Development Law

Developers are often surprised at the extent of land use laws in the "Live Free or Die" state of New Hampshire. Land use controls pervade regulation at the federal, state and local levels. Individual land development projects may be subject to regulation at all three levels.

While each New Hampshire municipality has its own land use regulations, they must be properly adopted and applied consistent with the State's land use statutes and case law. Within these boundaries, there is wide variety in how each municipality exercises land use authority through zoning, subdivision, site plan review and innovative land use controls, including the imposition of impact fees. In addition, the State of New Hampshire has preempted some areas of land use and has created its own regulatory agencies to approve particular uses such as energy plants and large withdrawals of water.

McLane's Land Use Practice Group represents clients in obtaining necessary approvals, variances and permits from planning and zoning boards and state and federal agencies. Work for our clients brings us into the wider New England and national arenas, particularly in areas such as the telecommunications industry, including specialized cell tower work, and national work regarding biosolids.

Our attorneys advise clients throughout the entire land development process, including:

• acquisition and financing of property
• obtaining needed variances and subdivision and site plan approvals from local boards and bringing appeals from adverse decisions or defending abutter appeals
• assistance with environmental due diligence and necessary remediation efforts
• obtaining necessary environmental land use permits
• preparation of condominium and subdivision registration and exemption applications under NH condominium and land sales acts
• tax abatement petitions, appeals and proceedings
• eminent domain proceedings

Case Studies

Biosolids

The Land Use Practice Group successfully defended a recent claim that biosolids applied on a farm field in Greenland, New Hampshire caused the death of a 26-year-old man. The Marshall Case was the first of its kind and, because of its national implications, attracted substantial attention. The main challenge was rebutting the unique and novel scientific theories as to cause of death advocated by the Plaintiff's lead expert, David Lewis. We succeeded by demonstrating that there was no evidence whatsoever which established any connection between the application of biosolids and the death of the plaintiff, who lived some distance away.

Utility Plants

We obtained all the necessary permits for a highly efficient electric generating station for the production of competitive-cost power. This 720 megawatt, combined cycle, gas-fired, power plant, which is currently in the later stages of commissioning, is located just south of the Manchester, New Hampshire Airport. We handled all the State regulatory permitting work including lengthy proceedings before the State Energy Facility Site Evaluation Committee, and related litigation in State Court. A citizens group vigorously opposed the project before the State Siting Committee, which displaces local land-use approval. We also handled all the environmental and regulatory work for the new 16-mile, interstate gas transmission pipeline, which was installed, in part, to service the power plant.

Approval of Site Plans

Non-residential and multi-family projects in New Hampshire generally require site plan review by the Planning Board in the municipality where the site is located. Site plan regulations vary by municipality but all address issues that may impact the area surrounding the proposed site including drainage, parking, landscaping, traffic impact and internal traffic circulation, and sewage and water connections.

Our attorneys work with site engineers, wetlands experts, traffic engineers and surveyors to address the requirements of site plan regulations. Our expertise is in leading and coordinating that team of professionals in developing the strategy for presentation of the proposed project before the local Boards to effectively address Board and abutter concerns to get the necessary approvals as quickly as possible and to avoid abutter appeals.

Water Resources and Wetlands

In the wetlands area, we have extensive experience in State and federal wetlands and soils disturbance permitting. The process begins with local conservation commissions that advise the Wetlands Bureau of the New Hampshire Department of Environmental Services on state wetlands applications. Federal controls include regulation of wetlands by the U.S. Army Corps of Engineers, which is delegated in part to the State to administer. The management of the disturbance of soils is regulated both by the New Hampshire Department of Environmental Services, and by the EPA through its NPDES permit and compliance requirements.

Our attorneys also have experience representing manufacturers, public water suppliers, and bottled water facilities in connection with the State Large Groundwater Withdrawal Permit process.

Tax Abatement

The Land Use Practice Group has also handled abatement appeals for both residential (individuals and groups of taxpayers) and commercial entities. Recently, we assisted a ski area that needed our expertise in abating its municipal tax burden. We worked with our client to assess the accuracy of the tax cards and to determine proper valuations for the taxable assets. After a year of litigation, we were able to assist in a mediated settlement between the ski area and the municipality that was very satisfactory to our client.

Cell Tower Siting and Litigation

We have substantial experience in the representation of providers of cellular telephone services before local land use boards and federal and state courts regarding the siting of transmission towers. The siting of towers can be politically divisive and requires skill and care in presentation before local land use boards. The work further requires specialized expertise in the requirements of the Telecommunications Communications Act, which confers jurisdiction upon the federal courts for certain appeals of siting request denials.

Our Land Use attorneys have extensive experience in the areas of taxation, real estate, environmental matters, government relations and litigation.

Members of the Land Use Practice Group are regular speakers at seminars and conferences on land use issues and periodically publish Land Use Bulletins.

For further information, contact one of our Land Use and Development Law Attorneys at (603) 625-6464.