The NH Office of Energy and Planning publication, The Board of Adjustment in New Hampshire gives detailed instructions on how Public Records should be compiled and maintained as required under RSA 91-A, Access to Public Records and Meetings . Some of this information is printed below. A complete copy of this manual is available from the NH Office of Energy and Planning at www.nh.gov/oep/resourcelibrary/HandbooksAndOtherPublications.htm
The records of the ZBA should be complete and accurate. The records should include the application, a copy of the hearing notices and the list of abutters and applicant to whom notices were given with copies of newspaper notices or posting showing the date and location, the agenda for the hearing, and the minutes of the hearing including any maps, plans photographs or other documents submitted for consideration.
When the decision is reached, the vote of the Board (exact wording of the motion and how each members voted) should be recorded, along with any conditions that are attached to the decision and all of the reasons as determined by the Board. This is especially important if the decision is appealed to Superior Court. The court will base its review on the written record, providing the basis for the decision is clear and complete.
Arranging Your Furniture- Operational Basics for Land Use Boards, October 2004, by H. Bernard Waugh, Jr. (1) also addresses the issue of how public records should be handled. Excerpts from that document are printed below. A complete copy of this document is available from the ZBA Chairman.
Anything with information concerning the town's or city's business is a public record and must be made available to the public unless there is an exception.
The records must be available for inspection during regular business hours - unless a record is temporarily unavailable because it's actually in use. However, the Supreme Court has said that when the office is very busy, officials can ask the citizen to make an appointment to review the records. The maximum time anyone can be required to wait is 5 days . Brent v Paquette. 132 N.H. 415 (1989)
Any citizen may make notes tapes, photos or photocopies. The municipality should not hand over the records for copying (see RSA 41:61) but should make its photocopy equipment available at actual cost.
Documents distributed to a quorum of the Board and documents discussed at a public hearing must be made part of the public record unless specifically exempt.
Exemptions - RSA 91-A:5 states that certain types of records are not available to the public. Records pertaining to personnel issues, certain confidential or commercial information and written legal advice are exempt. See the RSA for specific details.
The necessity for the Board to maintain complete records and to make its decision on the basis of recorded evidence is clear. In 1972 the court ruled - The key to a defensible record is a clear and complete record. When faced with a land use appeal, as a preliminary matter, the Court orders submittal of the "record". Just what is the record? It is the summary of all the evidence taken in, considered and used i reaching the decision. Normally Court appeal center on the reasonableness of the result reached based on the evidence considered. Merriam v. Salem, 112 N.H. 267,
Jackson ZBA files and case records are available at the Jackson Town Office Building during regular business hours.
(1) H. Bernard Waugh, Jr. , Gardner, Fulton and Waugh, Lebanon NH from his report presented at the October 2004 NH Office of Energy Planning and Zoning Conference
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