A court ruling planning boards should ponder

Regulatory bodies play an important role in protecting the public good. At the same time, they need to be reminded that they do not possess the authority to usurp the legitimate rights of the people who come before them.

Editorial, The Citizen of Laconia

May 5th, 2009

Planning boards are critical to the future of any community.

The land use boards bring due diligence to a whole host of building and development proposals. Its members are people with different skills and backgrounds who work together with the hope that projects meet zoning, building code and various other regulations, and that projects are basically consistent with a community's Master Plan. The boards also oversee the hearing process, which gives the public an opportunity to offer their comments — pro or con — on any given proposal.
In order to make an informed and appropriate decision, planning boards need to know how to apply a host of rules and laws. But they are also vested with some discretion so they can apply those rules and regulations in a sensible and just way.
The challenge for any planning board is knowing how to use that discretion judiciously.
It takes something more than opinion or "gut feeling" for a planning board to decide on an application.
Planning boards should take some time to ponder a superior court decision last month that dealt with just this issue.
In this particular case, a judge in Strafford County tossed out a decision by the planning board in Dover that had rejected a subdivision plan because the board believed the development was somehow not right for the neighborhood or the city.

Judge Kenneth Brown wrote that, while the board has some discretionary powers during the review process, those powers have limits — that the board's decision must be based on more than the mere opinion of its members. He wrote that the board "abused its discretion and should have approved the petitioner's application."
The judge noted it is not enough to reject an application on the basis of "vague concerns" because the proposal "doesn't seem like an appealing situation," that it "posed a quality of life situation," or because "in the past few years, developers have taken advantage of the zoning regulations to the maximum."
The "vague concerns" to which the judge alluded are, at best, policy issues. Historically, the job of a nonelected regulatory body is to implement policies, not enact them.
While Judge Brown's decision does not, strictly speaking, carry any weight beyond this one case, it is a ruling which planning officials everywhere should pay attention to. After all, what Judge Brown was doing was applying basic legal principles to the case at hand.
Planning boards anywhere can easily, if unwittingly, venture into the area of "vague concerns" — whether a particular project is "the right fit" for an area or if the aesthetics of a project are appealing.
A local example occurred some months back when the Laconia Planning Board considered an apartment house project on Mechanic Street. Board members voiced concerns that the developer's design for the project would not enhance the neighborhood.
While Judge Brown's ruling is not a sweeping one, by its nature it should make boards aware of their authority and responsibility in such matters; that, while opinion might play some part, more definitive ingredients must be present as well.

Regulatory bodies play an important role in protecting the public good. At the same time, they need to be reminded that they do not possess the authority to usurp the legitimate rights of the people who come before them