Land use regulation, codes and business planning

Assume for a moment that your highly successful business needs to expand. Whether looking for land on which to build, expanding up or out from your existing space, or renovating within your current four walls, attention to various documents and laws that affect your property at the outset will avoid expensive mistakes later on.

Deed restrictions: The deed to your property, which is available at the county registry (most are online), provides legal “notice” to the world, of any restrictions on your land.

These restrictions can range from utility easements, which must be kept clear, to restrictions or dictates on certain uses. A property may be restricted based on social mores popular at the time it was drafted (no gambling, no alcohol), or it may be restricted because at one point it was owned by a particular group (church or charity) or a prior owner may have designated for a specific purpose (parks, conservation). Though activity restrictions are not as popular as they used to be, you need to check the history because it still likely applies to your land.

Lease restrictions: The lease applicable to your space is equally important to review. It sets the terms for occupancy and may limit the types of uses that can take place in the space. In some cases, there cannot be more than one of a particular type of business (restaurants, dry cleaners, pet stores). Leases may also limit hours of operation, access to the property, noise, lighting and odors.

Zoning restrictions: Zoning ordinances divide a municipality into districts and allow only certain uses within those districts. The uses are defined within the zoning ordinance and are not always what one might expect. They may differentiate between day care and adult day care, restaurants and fast food restaurants, apartments and lodging houses, office and medical office, commercial and highway commercial, retail. The devil is always in the details.

Zoning restrictions also set limits on how much building will fit on the lot, how close to the boundary the building may expand, how high an addition can be, and what sort of road frontage is required.

Site plan approvals: When a site plan is approved for a building, the town looked at many factors, such as the layout of the parking lot, landscaping, building height, shape and size, hours of operation. Changes to the plan cannot be made without further town approvals. This is because changes can impact on-site issues, such as drainage and internal circulation and off-site issues such as traffic, light and noise.

Thus, if considering expansion on site, an assessment of the prior terms of approval is critical. Site plans and related materials are maintained in the municipal planning offices and are open to public inspection. Note: The conditions are not always limited to the letter of approval – they can also appear in the minutes of the meetings approving the project found in the property’s municipal planning file.

Code restrictions: Building, fire and safety codes apply to new and existing buildings and vary based on the use made of the space. Building, mechanical, electrical and plumbing changes require permits and can result in major upgrades.

For example, adding people to a facility may require not only space reconfiguration but increasing bathroom facilities. Renovating an old building may trigger updated fire safety equipment, including the addition of sprinklers. Changing the type of business activity can move the building into a different code category. Discussion of the proposed work with the local building officials will identify limits and further areas of inquiry.

The state of New Hampshire has adopted the International Building Codes and the National Fire and Safety Codes. Municipalities follow the state code with local amendments permitted.

Neighborhood: Regardless of the nature of the project or expansion, a tour of the area, at various times of day, will answer practical concerns about how your business will “get along” with existing uses in the area. Abutting properties and those in close proximity are permitted by the land use review process to comment on proposed projects. Whether to the building official directly, by letters to the municipality, to appearing at hearings before planning and zoning boards, the opinions of neighbors is a factor that is weighed in the various decisions which may be required for your project.

A look at what is there, for reference, allows a proposal to be framed in context with existing conditions. Communication with interested parties can assuage fears and concerns that might otherwise morph into opposition.

Conflict resolution: Any one of these issues can create a conflict between you and the regulating agency. While some issues can be resolved with a conversation or meeting to clarify the rules that are applicable, others must be submitted to a series of administrative hearings and ultimately to court if agreement is not reached.

While New Hampshire courts afford priority on the docket for many land use cases, the fact remains that resolution of land use disputes can delay the project by months, if not years. Not only the regulators have the ability to comment on your proposed project, but as indicated above, affected neighbors can intervene in order to voice their opinions.

Looking for business space can be challenging and invigorating to a growing business. In addition to considerations of comfort and convenience for employees and customers, some attention to the codes and rules governing the use of property will help keep the focus on business and away from a time-consuming and potentially expensive land use dispute.

Bobbie Hantz, a shareholder in the law firm of Sheehan Phinney Bass + Green, can be reached at 603-627-8252 or ahantz@sheehan.com.