HB 1392-LOCAL - AS INTRODUCED
2016 SESSION
\t16-2077
\t06/03
HOUSE BILL\t1392-LOCAL
AN ACT\trelative to notice of land use violations and court costs in cases brought by a municipality.
SPONSORS:\tRep. L. Turcotte, Straf. 4; Rep. Hannon, Straf. 25; Rep. Mullen, Straf. 1; Rep. Cilley, Straf. 4; Rep. Whitehouse, Straf. 2
COMMITTEE:\tMunicipal and County Government
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ANALYSIS
\tThis bill modifies notice requirements in land use actions.
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Explanation:\tMatter added to current law appears in bold italics.
\t\tMatter removed from current law appears [in brackets and struckthrough.]
\t\tMatter which is either (a) all new or (b) repealed and reenacted appears in regular type.
\t16-2077
\t06/03
STATE OF NEW HAMPSHIRE
In the Year of Our Lord Two Thousand Sixteen
AN ACT\trelative to notice of land use violations and court costs in cases brought by a municipality.
Be it Enacted by the Senate and House of Representatives in General Court convened:
\t1 New Hampshire Building Code; Enforcement Authority. Amend RSA 155-A:7, III to read as follows:
\t\tIII. The local enforcement agency appointed to enforce the state building code shall have the authority to inspect all buildings, structures, construction sites, and other places in the jurisdiction. Prior to any inspection, where no building permit which grants consent for inspection has been issued, the local enforcement agency shall notify and obtain written consent of the record owner of the property to enter said premises. Notification shall be served upon the record owner of the property. If consent for such inspection is denied or not reasonably [obtainable] obtained within 14 calendar days of the notification, the local enforcement agency may obtain an administrative inspection warrant under RSA 595-B.
\t2 Administrative and Enforcement Procedures; Fines and Penalties; Second Offense. Amend RSA 676:17, I and II to read as follows:
\t\tI. Any person who violates any of the provisions of this title, or any local ordinance, code, or regulation adopted under this title, or any provision or specification of any application, plat, or plan approved by, or any requirement or condition of a permit or decision issued by, any local administrator or land use board acting under the authority of this title shall be guilty of a misdemeanor if a natural person, or guilty of a felony if any other person; and shall be subject to a civil penalty of $275 for the first offense, and $550 for subsequent offenses, for each day that such violation is found to continue after the conviction date or after the date on which the violator receives written notice from the municipality that the violator is in violation, whichever is earlier. Each day that a violation continues shall be a separate offense. Any person charged with a violation of the provisions of this title who is found to be not guilty shall recover costs, reimbursement for loss of income, and reasonable attorney fees actually expended as a result of defending against any planning board, zoning board of adjustment, or building code board of appeals, or any other administrative action.
\t\tII. In any legal action brought by a municipality to enforce, by way of injunctive relief as provided by RSA 676:15 or otherwise, any local ordinance, code, or regulation adopted under this title, or to enforce any planning board, zoning board of adjustment, or building code board of appeals decision made pursuant to this title, or to seek the payment of any fine levied under paragraph I, the municipality shall recover its costs and reasonable attorney's fees actually expended in pursuing the legal action if it is found to be a prevailing party in the action. If the legal action brought by the municipality is not sustained, and if it appears to the court that the legal action was frivolous, was commenced in bad faith, or was not based upon information and belief formed after reasonable inquiry or was not well-grounded in fact, then the court shall order the defendant's recoverable costs and reasonable attorney's fees to be paid by the municipality. For the purposes of this paragraph, recoverable costs shall include all out-of-pocket expenses actually incurred, including but not limited to, inspection fees, expert fees, and investigatory expenses.
\t3 New Paragraph; Cease and Desist Orders. Amend RSA 676:17-a by inserting after paragraph XI the following new paragraph:
\t\tXII. No cease and desist order shall be served unless the enforcement authority has completed an inspection pursuant to RSA 155-A:7 III, and the defendant has first been given written notice of the violation by the municipality. No cease and desist order shall be contained within a notice of violation.
\t4 Administrative and Enforcement Procedures; Local Land Use Citations; Pleas by Mail. Amend the introductory paragraph of RSA 676:17-b and RSA 676:17-b, I to read as follows:
\t676:17-b Local Land Use Citations; Pleas by Mail. A building inspector or other local official with authority to prosecute an offense within the scope of RSA 676:17, and who, prior to or at the time of serving the summons, elects, pursuant to RSA 676:17, V, to charge the offense as a violation, having completed an inspection pursuant to RSA 155-A:7, III, may issue and serve upon the defendant, in addition to the summons, a local land use citation as set forth in this section. The defendant receiving such a citation may plead guilty or nolo contendere by mail by entering that plea as provided herein. If such a plea is accepted by the court, the defendant shall not be required to appear personally or by counsel; otherwise the defendant shall appear as directed by the court. The following procedure shall be used:
\t\tI. No local land use citation as set forth in this section shall be served unless the defendant has first been given written notice of the violation by the municipality. If the notice of violation involves or includes a decision which may be appealed to the zoning board of adjustment pursuant to RSA 676:5, or to the building code board of appeals pursuant to RSA 674:34, [such notice to the building code board of appeals pursuant to RSA 674:34,] such notice of violation shall set forth a reasonable period, as provided by the rules of the respective board, in no case less than 7 days, within which such appeal shall be filed after receipt of the written notice of violation, and the citation shall not be served until after the end of such period. If such an appeal is filed, further proceedings shall be governed by RSA 676:6.
\t5 New Paragraph; Local Land Use Citations; Pleas by Mail. Amend RSA 676:17-b by inserting after paragraph I the following new paragraph:
\t\tI-a. A notice of violation shall contain:
\t\t\t(a) The caption: "Notice of Violation, Town (City) of_________________".
\t\t\t(b) The name of the offender, and address, if known to the prosecuting official.
\t\t\t(c) The statute, code, ordinance, regulation, provision, specification, requirement, or condition the offender is charged with violating.
\t\t\t(d) The act or circumstances constituting the violation.
\t\t\t(e) The time, date, and place of the violation.
\t\t\t(f) The amount of the civil penalty as set forth in RSA 676:17, I, which is payable by the offender for each day the violation is continued subsequent to such written notice.
\t\t\t(g) Instructions informing the defendant that the defendant may appeal the notice of violation, and the period of time in which the defendant shall file the appeal.
\t\t\t(h) The address of the municipality, where the appeal may be entered by mail.
\t\t\t(i) The signature of the municipality's building inspector or local official administering the notice of violation.
\t6 Effective Date. This act shall take effect January 1, 2017.