Revision: Jan. 18, 2012, midnight
SB 142-FN – AS AMENDED BY THE SENATE
01/18/12 0186s
2011 SESSION
08/09
SENATE BILL 142-FN
AN ACT relative to reorganizing the permitting process within the department of environmental services.
SPONSORS: Sen. Odell, Dist 8; Sen. Luther, Dist 12
COMMITTEE: Energy and Natural Resources
This bill establishes an integrated land development permit option that may be sought at the discretion of the applicant as an alternative to applying for multiple land development permits from the department of environmental services.
This bill is a request of the department of environmental services.
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Explanation: Matter added to current law appears in bold italics.
Matter removed from current law appears [in brackets and struckthrough.]
Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.
01/18/12 0186s
11-1067
08/09
STATE OF NEW HAMPSHIRE
In the Year of Our Lord Two Thousand Eleven
AN ACT relative to reorganizing the permitting process within the department of environmental services.
Be it Enacted by the Senate and House of Representatives in General Court convened:
1 New Chapter; Integrated Land Development Permit. Amend RSA by inserting after chapter 488 the following new chapter:
CHAPTER 489
INTEGRATED LAND DEVELOPMENT PERMIT
489:1 Purpose. This chapter is intended to:
I. Establish an integrated land development permit option that may be sought, at the discretion of the applicant, as an alternative to seeking one or more individual land development permits or approvals issued by the department of environmental services.
II. Provide a coordinated approach and holistic perspective in regulating land development activities to protect the quality and functions of New Hampshire’s natural environment.
III. Establish an alternative project review and permitting process to improve communication and coordination between multiple organizations and entities involved in the permitting of proposed projects.
IV. Establish a structured pre-application process to provide enhanced guidance earlier in the project design process to facilitate compliance and improved environmental performance.
V. Encourage and facilitate implementation of environmentally superior projects.
489:2 Definitions. In this chapter:
I. “Abutter” means any person who owns land immediately contiguous to the subject property or who owns flowage rights on such land. The term does not include the owner of any land that is separated by a public road or public waterway from the subject property or, in the absence of a public road or waterway, is more than ΒΌ-mile from the limits of the proposed work. If any land that is immediately contiguous to the subject property is owned in whole or in part by the person who is proposing the work or is necessary to meet any frontage requirement, the term includes the person owning the next contiguous property. If the project is located in an area where the project will directly affect the use of land, or its adjacent water, that is not immediately contiguous to the property due to the configuration of property lines, the term includes owners of such land.
II. “Affected programs” means the following programs implemented by the department:
(a) The terrain alteration program established under RSA 485-A:17 and rules adopted pursuant thereto;
(b) The subdivision and individual sewage disposal systems program established under RSA 485-A:29-44 and rules adopted pursuant thereto;
(c) The wetlands program established under RSA 482-A and rules adopted pursuant thereto; and
(d) The shoreland water quality protection program established under RSA 483-B and rules adopted pursuant thereto.
III. “Applicant” means the person who initiates the application process for an integrated land development permit. If the applicant is not the owner of the property on which the project is proposed to occur, the applicant shall be authorized in writing by the property owner to undertake all actions and representations required under this chapter.
IV. “Department” means the department of environmental services.
V. “Integrated land development permit” means a single permit issued by the department in lieu of issuing separate permits under one or more of the affected programs.
VI. “Permittee” means a person who obtains an integrated land development permit under this chapter.
VII. “Subject property” means the property on which a project is proposed.
489:3 Authorization.
I. There is hereby established an integrated land development permit, for which application may be made as an alternative to applying for separate, individual permits under the affected programs.
II. Municipalities may review materials, provide comments, and, at the request of an applicant, attend meetings during any or all phases of the integrated land development permit program to provide advisory input to the department, as part of, or in conjunction with, municipal review requirements.
III. If administrative requirements or procedures contained in this chapter, or adopted by rule to execute this chapter, conflict with administrative requirements or procedures of any other statute or rule implemented by the department, the provisions under this chapter shall apply.
IV. The time limits prescribed in this chapter, or adopted by rule to execute this chapter, shall supersede any time limits provided in any other applicable provision of law.
V. Electronic communications and electronic document management may be employed to facilitate correspondence, application, notification, and coordination under this chapter.
VI. Submission of materials for the pre-application technical review or for final application under this chapter shall constitute the property owner’s express authorization for the department, through its agents or employees, to enter upon the property that is the subject to the application for purposes of evaluating site conditions and application made under this chapter.
489:4 Applicability.
I. Any person who wishes to conduct an activity requiring a permit or other approval from the department under 2 or more of the affected programs may choose to apply for an integrated land development permit from the department in lieu of all individual program permits or approvals otherwise required under the affected programs, subject to the following conditions and limitations:
(a) All permits or approvals otherwise required under the affected programs shall be included in the integrated land development permit.
(b) No person shall be eligible under this chapter if the person is the subject of an administrative, civil, or criminal enforcement action for violating any of the affected programs at the time of initiating the application process.
(c) No person shall be eligible under this chapter if the person was the subject of an administrative, civil, or criminal enforcement action for violating any of the affected programs within the 5 years prior to initiating the application process, unless the action was withdrawn or overturned on appeal.
(d) No property shall be eligible under this chapter if the property is or has been the subject of an administrative enforcement action for violations of any of the affected programs, unless the violations have been remediated or will be remediated as part of the proposed project and any outstanding fees, fines, and penalties assessed against the same person who owns the property at the time of the application have been paid in full.
(e) No property shall be eligible under this chapter without the prior consent of the attorney general if the property is, at the time of initiating the application process, or has been, within the 5 years prior to initiating the application process, the subject of a civil or criminal enforcement action for violations of any of the affected programs. This paragraph shall not apply to any action that was withdrawn or overturned on appeal.
(f) This chapter shall not apply if any of the work that is part of the project, other than preliminary site evaluation activities such as surveys or test pits not requiring a permit from the department, has been initiated or completed prior to the application process being initiated.
(g) This chapter shall not apply to permits for shoreline structures unless they are part of a larger project.
(h) This chapter shall not apply to emergency authorizations.
II. For projects that would otherwise require only a single permit from the department under the affected programs, the applicant may request a waiver of the requirement for 2 or more permits provided the project incorporates low-impact or minimum-impact design practices and the applicant demonstrates that the proposed project will achieve a superior overall environmental outcome in accordance with the requirements and procedures specified in RSA 489:10.
489:5 Initiation of Integrated Land Development Permit Process.
I. Any person interested in pursuing an integrated land development permit may consult with the department regarding the applicable procedures and requirements. Applicants may request and participate in conceptual pre-application discussions with the department prior to initiating the formal pre-application technical review process. Such conceptual pre-application discussions shall not replace the formal pre-application technical review process.
II. An applicant shall initiate the integrated land development permit process by conducting certain activities, as specified by the department in rules adopted under this chapter, in advance of requesting pre-application technical review by the department. These activities shall include the following:
(a) Inquiry and, when required by RSA 212-A:9, III, consultation with the department of resources and economic development’s natural heritage bureau and the department of fish and game;
(b) Notification of and provision of materials on the proposed project to the planning department, planning board and conservation commission of the municipality or, where applicable, municipalities in which the proposed project is located;
(c) Notification of and provision of materials on the proposed project to the local river management advisory committee, when applicable;
(d) Notification of and consultation with federal regulatory entities, when applicable;
(e) Notification of, and, when requested, provision of materials on the proposed project, to the New Hampshire division of historic resources;
(f) Assessment of site characteristics and location, as defined by the department in rules adopted under this chapter; and
(g) Other assessments, inquiries, notifications, and consultations as defined by the department in rules adopted under this chapter.
489:6 Pre-Application Technical Review.
I. Any person who is eligible under RSA 489:4 who wishes to develop property that is eligible under RSA 489:4 and who elects to apply for an integrated land development permit shall participate in a pre-application technical review with the department regardless of whether the applicant has previously participated in one or more prior pre-application discussions with the department.
II. After conducting the notifications, consultations, and assessments required under RSA 489:5, II, the applicant shall submit to the department such materials as the department requires under rules adopted pursuant to RSA 541-A, together with the pre-application technical review fee required by RSA 489:8, II.
III. As part of the pre-application technical review, the department shall review preliminary design plans, supporting information, and advisory input from persons notified or consulted pursuant to RSA 489:5, II to identify critical issues regarding site development and design and any requested waivers that may affect compliance with technical standards and the overall environmental outcome of the project. The department also shall discuss any mitigation that may be needed and review the final permit application requirements with the applicant.
IV. The department may request that persons from the department of resources and economic development’s natural heritage bureau, the department of fish and game, and applicable federal regulatory entities, participate in the pre-application technical review. Other persons may be included at the request of the applicant. All persons providing comments or otherwise participating in the pre-application technical review may provide advisory input to the department relative to the site conditions, the application of or compliance with technical requirements of the affected programs, or any waiver request under RSA 489:10.
V. Participation in the pre-application technical review shall not establish any presumption that the department will approve the application.
489:7 Submission and Review of Final Application.
I. Following the pre-application technical review, the applicant shall submit a complete application, as defined by the department in rules, together with the application fee specified in RSA 489:8, I, to the department. The proposed activities shall not be undertaken unless and until the applicant receives a permit from the department.
II. Incomplete applications shall not be accepted and shall be returned, along with the fee, to the applicant to be made complete and resubmitted to the department.
III. Concurrent with the submission of the final application to the department, the applicant shall:
(a) Provide a complete copy of the final application and all supporting materials, by certified mail or other delivery method that provides proof of receipt, to the municipality, or if applicable, municipalities in which the project is located and, when applicable, the local river management advisory committee or committees.
(b) Notify all abutters by certified mail or other delivery method that provides proof of receipt regarding the application. If any question arises as to whether all abutters were notified, the burden shall be on the applicant to show that notification was made.
IV. The department shall apply the technical standards established in the affected programs.
V. The department may waive, in accordance with RSA 489:10, any requirement or standard established by statute or rule under the affected programs, if such waiver is necessary to achieve a superior overall environmental outcome, or achieve an equivalent overall environmental outcome at reduced cost.
VI. Within 45 days of receiving a complete application, the department shall:
(a) Approve the application and issue a permit, which shall include such conditions as the department deems necessary to comply with this chapter or rules adopted under this chapter;
(b) Deny the application and issue written findings in support of the denial;
(c) Identify the need for and schedule a public hearing on the draft permit for the proposed project, and within 30 days of the public hearing approve or deny the application in accordance with subparagraph (a) or (b); or
(d) Extend the time for rendering a decision on the application for good cause and with the written agreement of the applicant.
VII. The department shall adopt rules, under RSA 541-A regarding terms and conditions for any permit issued under this chapter to ensure compliance with this chapter and the affected programs.
489:8 Fees. Fees for the integrated land development permit shall be as follows:
I. The integrated land development permit application fee for a project shall be equal to the total of the permit fees specified in statute and in rules for each of the individual permits or approvals being replaced by the integrated land development permit. The permit application fee, minus funds previously paid for the technical pre-application review, shall be submitted to the department with the permit application.
II. The pre-application technical review fee shall be 30 percent of the expected permit application fee or $500, whichever is greater, up to a maximum of $5,000. The pre-application technical review fee shall be applied toward the final permit application fee for the project. If the applicant does not submit a final permit application, the pre-application technical review fee shall not be refunded or transferred to another project.
III. The applicant shall submit an additional fee, equal to 5 percent of the final permit application fee for the project up to a maximum of $500, to cover the additional costs incurred by the department for any project requiring a public hearing.
IV. The applicant shall submit an additional fee, equal to 5 percent of the final permit application fee for the project up to a maximum of $500, for any project requiring an amendment to a permit issued under this chapter.
V. The fees collected pursuant to this chapter shall be deposited into the accounts associated with the affected programs on a pro rata basis.
489:9 Rulemaking. The commissioner of the department shall adopt rules under RSA 541-A relative to:
I. Requirements and procedures for the pre-application process and technical review, including requirements for notification of and coordination with municipalities, other state and federal agencies, local river management advisory committees, and other entities.
II. Application requirements and procedures for processing a final application for an integrated land development permit, including requirements for notification of and coordination with municipalities, other state and federal agencies, local river management advisory committees, and other entities.
III. Technical standards and requirements for technical review of applications.
IV. Procedures and requirements for amending a permit issued pursuant to this section, including time extensions.
V. Procedures and requirements for projects requiring a public hearing.
VI. Terms and conditions for permits issued under this chapter to ensure compliance with this chapter and affected programs.
489:10 Waivers.
I. No waiver from any affected program’s requirement in rule or statute shall be granted unless the applicant requesting the waiver demonstrates that there will be:
(a) No substantial loss of wetland functions and values;
(b) No additional degradation of water quality of impaired surface waters or outstanding resource waters; and
(c) A superior overall environmental outcome or an equivalent overall environmental outcome at reduced cost.
II. The demonstration required by paragraph I shall be made based on project design, mitigation, submission of modeling results, engineering calculations, relevant scientific studies, or such other documentation the applicant believes supports the requested waiver.
III. No waiver shall be granted if doing so results in a violation of any federal requirement or any state statute outside those governing the affected programs, unless the state statute expressly provides that the provisions may be waived.
IV. Municipalities may adopt procedures to grant a variance of zoning under RSA 674:33, I(b), or waive land use regulations under RSA 674:44, III(e) or RSA 674:36, II(n), or adopt an innovative land use control ordinance pursuant to RSA 674:21, to allow a project to proceed as approved by the department under this chapter.
489:11 Appeals.
I. Any person aggrieved by a decision made under RSA 489:7, V or VI(a) or (b) and any person subject to an order of the department under RSA 489:12 who wishes to appeal shall file a notice of appeal with the council appeals clerk for a hearing before a joint water-wetland council described in paragraph II. At the time the notice of appeal is filed, the person shall send a copy of the appeal to the commissioner of the department. If the appeal is of a decision to issue a permit, the person shall also send a copy of the appeal to the permittee. The notice of appeal shall be considered timely filed if sent or delivered to the council appeals clerk by a delivery method that provides proof of receipt on or before the 30th day from the date of the department’s decision, provided that if the 30th day falls on a Saturday, Sunday, or state legal holiday then the appeal shall be considered timely filed if filed the next business day. The notice of appeal shall clearly state that it is being filed pursuant to this paragraph.
II. Upon receipt of an appeal filed pursuant to paragraph I, the council appeals clerk shall notify the chairman of the water council established under RSA 21-O:7 and the chairman of the wetlands council established under RSA 21-O:5-a. The chairmen shall each designate 4 members of their respective councils to sit with a hearing officer appointed under RSA 21-M:3, VIII as a joint council for purposes of the appeal. To the extent practicable, the council members appointed shall represent a diversity of environmental, business, and public health interests and legal expertise.
III. The appeal shall set forth fully every ground upon which it is claimed that the decision complained of is unlawful or unreasonable. Only those grounds set forth in the appeal shall be considered by the joint council.
IV. The joint council shall conduct an adjudicative proceeding as provided in RSA 21-M:3, IX and X, RSA 541-A, and the rules of the councils. In the event of a conflict between the councils’ rules, the provision favoring the appellant shall apply. The burden of proof shall be on the party seeking to set aside the department's decision to show that the decision is unlawful or unreasonable. All findings of the department upon all questions of fact properly before it shall be prima facie lawful and reasonable.
V. Any person whose rights will be directly affected by the outcome of the appeal may appear and become a party to the appeal. Any person whose rights may be directly affected by the outcome of the appeal may file a request to intervene as provided in RSA 541-A:32.
VI. On appeal, the joint council may affirm the decision of the department or may remand to the department with a determination that the decision complained of is unlawful or unreasonable. In either case, the council shall specify the factual and legal basis for its determination and shall identify the evidence in the record created before the council that supports its decision.
VII. Any party aggrieved by a decision of the joint council may apply to the joint council for reconsideration as specified in RSA 541.
VIII. Any party aggrieved by a decision of the joint council after reconsideration may appeal to the supreme court as specified in RSA 541.
IX. In the case of a remand to the department by the joint council, the department may accept the council's determination and reissue the subject decision or order, imposing such conditions as are necessary and consistent with the purposes of this chapter, or may appeal as provided in paragraphs VII and VIII.
489:12 Compliance.
I. The following shall constitute noncompliance with this chapter:
(a) Failure to comply with this chapter or any rule adopted or permit issued under this chapter.
(b) Failure to comply with an order of the commissioner issued relative to this chapter or any rule adopted or permit issued under this chapter.
(c) Misrepresentation by any person of a material fact made in connection with any application filed under this chapter or any permit issued under this chapter.
II. The permittee shall be responsible for ensuring that all work done under the permit complies with the permit and all other applicable requirements. Any person who performs work under an integrated land development permit shall comply with the permit and all other applicable requirements.
III. The department may issue a written order to any person in noncompliance with this chapter as specified in paragraph I to cease any continuing noncompliance and to remediate or restore any land or water areas affected by the noncompliance.
IV. Any noncompliance with this chapter as specified in paragraph I may be enjoined by the superior court upon application of the attorney general.
V. Any person who purchases or otherwise becomes the owner of land affected by noncompliance with this chapter shall be responsible for remediation or restoration of the land or water affected. If the new owner did not know or have reason to know about the noncompliance, the new owner may seek compensation for the costs of remediation or restoration from the person or persons who caused the noncompliance.
VI. Any person who knowingly fails to comply with this chapter as specified in paragraph I shall be subject to all potential remedies available under current law in the applicable affected programs. For purposes of this provision, a permit issued under this chapter shall constitute a permit issued under each of the applicable affected programs
2 Transfer of Resources and Establishment of Positions. For the purposes of implementing this chapter, the department may:
I. Transfer positions, funds, and resources from within the department of environmental services.
II. Establish positions with the required expertise to establish and execute the integrated land development permit program, including:
(a) An administrator III (labor grade 31) position, to be supported by general funds, to implement and manage the integrated land development permit program, coordinate the involvement of appropriate administrative and technical staff, facilitate communications with applicants, and serve as an ombudsman for the affected programs.
(b) Up to 3 environmentalist V (labor grade 30) positions, one of which shall be supported by general funds, to provide technical, multi-disciplinary expertise in the permitting review of large, complex projects under the integrated land development permit program.
3 Planning Board Procedures. Amend RSA 676:4, I(b) to read as follows:
(b) The planning board shall specify by regulation what constitutes a completed application sufficient to invoke jurisdiction to obtain approval. A completed application means that sufficient information is included or submitted to allow the board to proceed with consideration and to make an informed decision. A completed application sufficient to invoke jurisdiction of the board shall be submitted to and accepted by the board only at a public meeting of the board, with notice as provided in subparagraph (d). An application shall not be considered incomplete solely because it is dependent upon submission of an application to or the issuance of permits or approvals from other governmental bodies; however, the planning board may condition approval upon the receipt of such permits or approvals in accordance with subparagraph (i). The applicant shall file the application with the board or its agent at least 15 days prior to the meeting at which the application will be accepted. The application shall include the names and addresses of the applicant, all holders of conservation, preservation, or agricultural preservation restrictions as defined in RSA 477:45, and all abutters as indicated in the town records for incorporated towns or county records for unincorporated towns or unorganized places not more than 5 days before the day of filing. Abutters shall also be identified on any plat submitted to the board. The application shall also include the name and business address of every engineer, architect, land surveyor, or soil scientist whose professional seal appears on any plat submitted to the board.
4 New Paragraph; Powers of the Zoning Board of Adjustment. Amend RSA 674:33 by inserting after paragraph V the following new paragraph:
VI. The zoning board of adjustment shall not require submission of an application for or receipt of a permit or permits from other governmental bodies prior to accepting a submission for its review or rendering its decision.
5 Conservation Commission; Powers. Amend RSA 36-A:4 to read as follows:
36-A:4 Powers.
I. Said commission may receive gifts of money, personal property, real property, and water rights, either within or outside the boundaries of the municipality, by gift, grant, bequest, or devise, subject to the approval of the local governing body, such gifts to be managed and controlled by the commission for the purposes of this section. Said commission may acquire in the name of the city or town, subject to the approval of the local governing body, by purchase, the fee in such land or water rights within the boundaries of the municipality, or any lesser interest, development right, easement, covenant, or other contractual right including conveyances with conditions, limitations, or reversions, as may be necessary to acquire, maintain, improve, protect, or limit the future use of or otherwise conserve and properly utilize open spaces and other land and water areas within their city or town, and shall manage and control the same, but the city or town or commission shall not have the right to condemn property for these purposes.
II. The conservation commission, in reviewing an application to provide input to any other municipal board, shall not require submission of an application for or receipt of a permit or permits from other governmental bodies prior to accepting a submission for its review or providing such input.
6 Effective Date.
I. Sections 2 and 3 of this act shall take effect July 1, 2012.
II. Section 1 of this act shall take effect January 1, 2014.
III. The remainder of this act shall take effect 60 days after its passage.
LBAO
11-1067
Revised 02/17/11
SB 142 FISCAL NOTE
AN ACT relative to reorganizing the permitting process within the department of environmental services.
FISCAL IMPACT:
The New Hampshire Municipal Association states this bill will have an indeterminable fiscal impact on local expenditures in FY 2012 and each year thereafter. There is no fiscal impact on state and county expenditures, or state, county and local revenue.
METHODOLOGY:
The New Hampshire Municipal Association states this bill establishes an integrated land development permit and establishes the position of ombudsman in the Department of Environmental Services. The Association states this bill will have an indeterminable fiscal impact on local expenditures. The Association states the fiscal impact is unlikely to be significant, but is not able to predict the exact fiscal impact as it will depend on how the permit fees are structured.
The Department of Environmental Services states this bill will have no fiscal impact. It is anticipated the fees for the integrated land development permit would equal the fees collected under the individual permits supplanted by the integrated permit. The Department states the ombudsman position would have no fiscal impact as all costs related to the ombudsman position would be absorbed within the Department’s budget. The Department would establish the ombudsman position by utilizing an existing program position in the Department. The Department estimates the ombudsman position would be a labor grade 27 (starting salary $48,770), but continues to evaluate its staffing to determine what position would be appropriate to convert to the ombudsman.