REAL ESTATE LAW

Keys to Obtaining Excavation Permits in New Hampshire

October 2002

By Ari B. Pollack*
for New Hampshire Business Review

As the New Hampshire Supreme Court expands the discretion of local land use boards in reviewing excavation permit applications, and older "exempted" excavation pits exhaust limited resources, the need to obtain new excavation permits from municipal regulators is crucial.

Although State law encourages the extraction of aggregate deposits for construction and the development of roads and infrastructure, local regulators retain significant authority in approving the location of excavations and crafting operating conditions. Thus, a regulator's review of an excavation application often includes broader concerns than mere compliance or the matching of permitted uses with a zoning ordinance.

Deliberations over excavation applications, for example, often involve issues such as environmental impact, noise, vibration, dust, traffic, wildlife protection, abutting and neighborhood property values, hours of operation, site and operational safety, and post-excavation reclamation. Although particular issues may not affect every proposed project, concerns over these so-called "operational and beyond checklist compliance issues" often lead to important discretionary decisions made by regulators in shaping approvals and the conditions imposed upon permits.

Given the increased discretion afforded local regulators by recent Supreme Court decisions, winning the discretionary operations issues and prevailing in obtaining an excavation permit before the local regulators are critical to opening new excavation areas.

While the permitting process can often be long and costly, a reasoned, thorough approach can help build a supportive record to protect permits, necessary conditions, or challenge denials, and optimize the chances of securing a permit. Here are some steps to remember.

Hire Project Experts Early

Excavation permit applications almost always involve subjects for which expert testimony or educated opinions are required. For example, hydrologists and engineers are routinely consulted regarding the stability of excavated slopes in reclamation and the potential for the excavation to impact surface and groundwater quality. Other experts are routinely retained to opine on issues including site surveying, wetlands impacts, property values, and blasting specifications.

Hiring experts early in the process and using experts to review the application prior to filing it with regulators can help to correct errors and ambiguities before regulators learn of incorrect information or discrepancies. Eliminating errors within the application and confirming compliance with applicable regulatory checklists and operational guidelines also helps to foster a comfort level with regulators and to develop a trusting relationship with the officials who will ultimately determine the fate of the permit application.

Pre-Application Review

Many municipalities offer an informal and often informative pre-application review session conducted before the regulators. This session occurs prior to official public hearings and the notices that are required to be sent to abutters.

Pre-application sessions can help regulators become familiar with an application and the proposed project, offer lead time for regulators to hire and identify experts to advise the board and provide an important opportunity to address specific project items or areas of concern.

For example, applications often seek discreet waivers from certain operational guidelines or reclamation standards. Such waiver requests are often based on the particulars of a given project. Pre-application review is an excellent opportunity to discuss the project's particulars in an informal setting and to educate the regulators without the commotion of a public hearing.

Help Regulators Retainer Experts

Often regulators lack the internal expertise to adequately review and determine excavation permit applications. Regulators, however, are able to request that applicants fund the services of independent experts to advise regulators regarding the application and its compliance with applicable standards. Such experts are instrumental in educating regulators, addressing abutter concerns and crafting workable operation and reclamation conditions.

Applicants should encourage regulators to hire qualified experts early in their deliberations and consult them regularly throughout the public hearings process. Rather than viewing the regulator's experts as an unnecessary expense of permitting, applicants should instead encourage the regulator's experts to take a proactive, educational role in the proceedings. This way, experts can provide valuable scientific and developmental feedback and assist in building a thorough record of material to support the regulator's determination.

Clear and Thorough Record

Local regulators are required by state law to create a record of information and deliberations regarding applications. This record often includes the application, official minutes of meetings and any submissions from the applicant, abutters and any retained experts.

Since many excavation applications take months to process and include numerous public hearings, keeping track of the record can be tedious and consuming. This information, however, remains before the regulator at the time decisions are made and should serve as the basis upon which approvals are granted or denied. Since the record will contain multiple reports, maps, plans, correspondence and infinite other submissions, regulators often benefit from preparation of a condensed packet of materials containing copies of the key expert reports or documents.

While the secretary of the local land use board is charged with taking minutes and maintaining the official record, contested applications involving long-term project investments and complex public hearings may also justify the expense of a stenographic record. Transcripts are particularly helpful when hearings become dominated by comments from organized opposition. This verbatim transcript is admissible in future rehearings or appellate proceedings and can be invaluable in quoting testimony, motions considered by regulators, and approval conditions imposed on permits.

Be Reasonable and Considerate

Local regulators spend considerable time and energy learning about an applicant's project and resolving concerns from the public. Applicants can often assist regulators in resolving contested issues by considering compromises and remaining flexible regarding project design. While some changes undoubtedly threaten the purpose of the project or render project designs unworkable, changes can often be made that ease disturbances to the surrounding neighborhood or reduce environmental impact with minimal overall project impacts.

The permitting of new excavation areas is vital to New Hampshire's continued infrastructure development. As older excavation pits exhaust resources, the need to permit new sources of material increases. By hiring qualified experts, eliminating errors and ambiguities before filing, and by reasonably and cooperatively working with regulators to craft a workable project, applicants can significantly improve their chances of obtaining approvals.

*Ari B. Pollack is admitted in New Hampshire and Massachusetts.

 

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