Practical Tips: How to Use the Right to Know Law to Enhance Your Chances for Success in Land Use Regulation Disputes
By H. Boone Porter, III*
New Hampshire’s Right-to-Know Law, RSA ch. 91-A (“RTKL”), is a useful tool for compelling public bodies to produce government records. The information contained in such records can be helpful in understanding government actions. Did you also know that the RTKL sometimes can give a party a “leg up” in a land use regulation dispute? This article will briefly outline ways that a litigant can use the RTKL to increase the likelihood of a successful resolution in such cases.
Land use regulation disputes often arise after a party files an application with a planning board, a zoning board of adjustment, a board of selectmen, or a historic district commission (each a “land use board”). For example, applicants might encounter what they believe is unwarranted resistance from abutting property owners or inamicable members of a land use regulatory board. Abutters, on the other hand, may feel that an applicant’s plans violate local ordinances and that municipal officials should block the project.
While most municipal land use board members discharge their duties in good faith compliance with the law, that is not always so. As volunteers, some municipal officials lack adequate training to perform their responsibilities competently. Too often, land use boards fail to seek proper legal advice, or, if they do, such advice is sought and received through intermediaries. For example, a secretary may be the person who actually poses the question to the attorney and then relays the attorney’s answer back to land use board members, with much “lost in translation.” Sometimes, the advice given by town counsel embodies legal “shortcuts” in misguided efforts to minimize legal fees and/or to please the land use board’s known biases. Finally, members of land use boards may have their own undisclosed political agenda that prejudices their decision-making.
The RTKL can help in these situations. The RTKL not only regulates the disclosure of public records, it also regulates the manner in which land use boards meet, deliberate over applications, and make decisions. If the land use board fails to comply with the RTKL, the RTKL offers judicial remedies that are better than those that are available under RSA 677:4 and RSA 677:15, the statutes under which land use board decisions are usually attacked in Superior Court. Hence, in appropriate circumstances, a disappointed party in a land use dispute should consider bringing a claim under the RTKL as well as RSA 677:4 and/or RSA 677:15.
In anticipation of the possibility of bringing a RTKL claim, and as a matter of good practice, parties should pursue the following actions in land use regulation disputes.
- Obtain copies of all notices of public meetings and of all minutes of public meetings concerning the matter in controversy.
- Keep a contemporaneous log of all in-person conversations and telephone calls with town officials/employees and third parties relating to the application. Your log should include the date, time, and place of the conversation or telephone call, the names of all parties to the discussion, and the substance of the discussion. Double check your log entries against information received under ## 4 and 10 below.
- Keep copies of all letters and e-mail communications with municipal officials and other parties.
- Make a RTKL request for a copy of all materials pertaining to an application (whether you are the applicant or the opponent) before any scheduled hearing on the merits. As an applicant, you may be surprised to learn that materials you have submitted and requested be included in your file have not been included therein. As an opponent, you may be surprised to learn what materials are included in the application’s file. Be sure to request copies of meeting packet notes (i.e., transmittal/instruction memoranda sent to land use board members before each meeting). These latter documents can contain valuable information, including town counsel’s advice to the land use board members.
Your RTKL request should seek copies of all written communications (including e-mails, tweets, etc.) among and/or between the land use board members and staff, and other persons, regarding the application. Specifically request such materials that are not just kept in the municipality’s offices but that are kept in the homes, and on the personal computers, of the land use board’s members and staff. You may be surprised to learn that some land use board chairmen and staff keep certain land use board records in their homes and that copies are not kept at the municipal government’s offices.
- Attend all noticed hearings, and record the proceedings, a right you have under the RTKL. You can use your smart phone. Sit where your phone will clearly pick up everything that is said. Official minutes often omit key statements made at public meetings; hence, your ability to produce a verbatim transcript from your recording could mean the difference between winning and losing in court.
- The RTKL requires public bodies to conduct all deliberations, and to make all decisions, at publicly noticed hearings. Land use boards frequently violate these requirements. Statements like, “Thank you for your presentation; we will think about your request and we’ll get back to you with our decision,” are red flags. What you probably are being told is that the members of the land use board are going to unlawfully deliberate in private. Ask the chairman if that statement means all future deliberations will be conducted at the next publicly noticed meeting. Be sure you have a clear recording of your question and of the chairman’s answer. Also, note statements like, “We have talked about your application among ourselves after our last meeting and with people around town. We have decided to do ___.” This is, in essence, an admission of a violation of the RTKL that deliberations must be conducted in public view and of your Constitutional right to due process.
- Some land use boards try to finesse these issues by claiming that they discussed an application with all interested parties during a noticed meeting, then, before adjourning, and after all members of the public (including the applicant and opponents) have left the room, deliberated and reached a decision, even though there is nothing in the official minutes to support that scenario. A recent RTKL case found this practice to be a violation of the RTKL.
- Before filing your RTKL claim with the Superior Court, make a second request to obtain copies of documents created since your last RTKL request. Also, request any public documents relating to any prior RTKL or land use regulation lawsuits involving any of the municipal officials/employees related to your case. Yes, sometimes there are “repeat offenders,” and their continued misconduct may entitle you to attorneys’ fees, injunctive relief, or civil money penalties under the RTKL. See # 10 below.
- At the same time, also consider making RTKL document requests to public bodies like Primex and the N.H. Municipal Association if they possess information that could be relevant, e.g., pooled risk coverage information or seminar and training materials for best practices, etc.
- If the land use board renders a final adverse decision, but violated a requirement of the RTKL in the process, you can obtain relief under the RTKL not otherwise available under either RSA 677:4 and RSA 677:15. In claims under RSA 677:4 and RSA 677:15, the land use board’s findings are deemed presumptively correct, and whoever is attacking those findings has the burden of showing they are wrong and/or in violation of applicable law. No such presumption exists under the RTKL. Furthermore, if the RTKL claim involves the failure to disclose public records, the burden of compliance will be on the land use board. More importantly, an appropriate claim under the RTKL provides additional advantages such as:
- Your court case will have priority docketing so it will be heard much more quickly.
- If the alleged violations of the RTKL created unfairness during the administrative proceeding, or due process violations, that proceeding can be vacated. If vacated, you need not pursue the companion lawsuits brought under RSA 677:4 and/or RSA 677:15.
- If you prevail, depending on circumstances, you might be entitled to your attorneys’ fees.
- Again depending on circumstances, you may be entitled to injunctive relief, civil money penalties assessed against offending municipal officials/employees, or the imposition of remedial training.
*This article is for general informational purposes only. It is not intended to be, nor does it constitute, legal advice. Consequently, no person may rely upon this article as legal advice. The facts and circumstances of each dispute arising under the RTKL are unique. Persons seeking legal advice regarding the RTKL or any other legal matter should consult with competent legal counsel.