House votes to bar towns from forcing open space access

The New Hampshire House voted 178-101 Tuesday to keep municipal planning boards from requiring developers to allow public access to open space as a condition for approving a building project.

House Ball 1366, sponsored by Rep. Packy Campbell, R-Farmington, applies to subdivisions that site their units close to each other as part of a planned unit development, cluster project, village alternative plan or similar innovative land use.

The bill left the Municipal and County Affairs Committee last month with a 9-7 endorsement and sparked a sharp House floor fight between committee chairman Betsey Patten, R-Moultonborough, and Rep. Jim Phinizy, D&R-Acworth.

Phinizy apologized for finding last-minute issues with the bill and said he had no wish to sandbag it. But he warned it might inadvertently strip towns of some of their tools to shape growth.

“Might this pre-empt master plans and local zoning?” Phinizy asked Patten.

“It doesn’t,” she said. “The committee felt it’s wrong to require public access to the land. It creates liability and trespassing issues.”

Phinizy said under its ordinances, Acworth could take 10 percent of a parcel in lieu of other concessions from developers. He assumed that practice would have to stop.

“Would an access easement be allowed?” he asked. “I’m very concerned about the unintended consequences of this.”

Patten said mandatory access is a form of land taking. “Planning boards can still negotiate conditions they put on a developer,” she said.

Rep. Jessie Osborne, D-Concord, said her city planning director deems it illegal for a planning board to demand this sort of access. “That would be a lawsuit,” she said.

“We need to stop towns from wringing open space from developers,” said Rep. Paul Mirski, R-Enfield,

Stephen Buckley, chairman of the Associate of Regional Planning Commissions, spoke against the bill at its public hearing Feb. 14. He said towns properly strive to build networks of hiking and biking trails and link blocks of habitat to each other. The bill would make those goals harder to reach, he explained.

Chris Nicolopoulos, lobbyist for the New Hampshire Association of Realtors, said towns should stop creating open space on land they refuse to buy. It leaves owners of the land paying taxes on property they have no control over. – CHRIS DORNIN/GOLDEN DOME NEWS