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Thread: Municipality must follow its own rules, but how far?

  1. #1
    Cyburbian
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    Municipality must follow its own rules, but how far?

    From our state code:
    A municipality is bound by the terms and standards of applicable land use ordinances and shall comply with mandatory provisions of those ordinances.
    and,
    ... no street, park, or other public way, ground, place, or space, no publicly owned building or structure, and no public utility, whether publicly or privately owned, may be constructed or authorized until and unless it conforms to the current general plan.
    So, if we want to build a public restroom in the park, and our ordinance absolutely requires a building permit, doesn't the town need a building permit? The building inspector (borrowed from a neighboring city when needed) says no, and that we don't need to have any inspections. Our ordinance would also require design review before the planning commission, but others are saying for a public use that is not necessary. I can see it makes sense to waive some of the fees, but I think the parks fund should pay for inspections, and the planning commission should have a look before they go ahead with it. As a councilmember, I would like to make sure the design is one to set a good example for other development before they start-- oops, I mean, before they FINISH, building it. If we require inspections of others to protect public health and safety, can we justify waiving it for town buildings, that will be frequented by the public? I have a feeling they are laughing derisively at my concern--am I being nitpicky?

  2. #2
    Corn Burning Fool giff57's avatar
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    1. Every state is different, but it seems yours requires full compliance

    2. Home rule usually lets councils do pretty much what they want to

    3. As a council member do you not have a say in the design?

    Best practices usually means following your own rules, you don't want Joe Blow coming to a meeting with a picture of your illegal restroom asking for a variance.
    “As soon as public service ceases to be the chief business of the citizens, and they would rather serve with their money than with their persons, the State is not far from its fall”
    Jean-Jacques Rousseau

  3. #3
    Cyburbian Cardinal's avatar
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    Public buildings can often be among the worst in terms of design and placement. When I worked in local government, we always required public improvements to go before the plan commission. It saved us from some projects which would have destroyed the aesthetic of our parks - but not all.

    What would possibly be the reason for not having the building inspected? Even if it were not required, wouldn't it make sense to have your building inspectors monitoring the work to ensure that it is performed according to code? This just seems like common sense.
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  4. #4
    Cyburbian boiker's avatar
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    my lovely burgh is home rule and is exempt from their own regulations.

    I can't stand the hypocracy of this.
    Dude, I'm cheesing so hard right now.

  5. #5
    Forums Administrator & Gallery Moderator NHPlanner's avatar
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    NH has this provision on the books:

    674:54 Governmental Land Uses. –
    I. In this section, ""governmental use'' means a use, construction, or development of land owned or occupied, or proposed to be owned or occupied, by the state, university system, or by a county, town, city, school district, or village district, or any of their agents, for any public purpose which is statutorily or traditionally governmental in nature.
    II. The state, university system, county, town, city, school district, or village district shall give written notification to the governing body and planning board, if such exists, of a municipality of any proposed governmental use of property within its jurisdiction, which constitutes a substantial change in use or a substantial new use. Written notification shall contain plans, specifications, explanations of proposed changes available at the time, a statement of the governmental nature of the use as set forth in paragraph I, and a proposed construction schedule. Such notification shall be provided at least 60 days prior to the beginning of construction. Either the governing body or planning board of the municipality may conduct a public hearing relative to the proposed governmental use. Any such hearing shall be held within 30 days after receipt of notice by the governing body or planning board. A representative of the governmental entity which provided notice shall be available to present the plans, specifications, and construction schedule, and to provide explanations. The governing body or planning board may issue nonbinding written comments relative to conformity or nonconformity of the proposal with normally applicable land use regulations to the sponsor of the governmental use within 30 days after the hearing.
    II-a. Any use, construction, or development of land occurring on governmentally owned or occupied land, but which is not a governmental use as defined in paragraph I, shall be fully subject to local land use regulations.
    III. This section shall not apply to:
    (a) The layout or construction of public highways of any class, or to the distribution lines or transmission apparatus of governmental utilities, provided that the erection of a highway or utility easement across a parcel of land, shall not, in and of itself, be deemed to subdivide the remaining land into 2 or more lots or sites for conveyance for development purposes in the absence of subdivision approval under this title. For purposes of this subparagraph, ""transmission apparatus'' shall not include wireless communication facilities.
    (b) The erection, installation, or maintenance of poles, structures, conduits and cables, or wires in, under, or across any public highways under RSA 231, or licenses or leases for telecommunication facilities in, under, or across railroad rights of way. For purposes of this subparagraph, ""structures'' shall not include wireless communications facilities.
    IV. In the event of exigent circumstances where the delay entailed by compliance with this section would endanger public health or safety, the governor may declare a governmental use exempt from the requirements of this section.

    Source. 1996, 262:1, eff. Aug. 9, 1996. 1998, 281:2, eff. Aug. 25, 1998.
    "Growth is inevitable and desirable, but destruction of community character is not. The question is not whether your part of the world is going to change. The question is how." -- Edward T. McMahon, The Conservation Fund

  6. #6
    Unfrozen Caveman Planner mendelman's avatar
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    Make the project follow the applicable rules and procedures you make anyone else follow.

    That's just fair.
    I'm sorry. Is my bias showing?

    Every day is today. Yesterday is a myth and tomorrow an illusion.

  7. #7
    Super Moderator luckless pedestrian's avatar
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    okay, I know I have given this speech before but here it is again:

    a municipal project has already been through a public process - if it's in the capital plan or in the operations of public works, it already went through the budget hearing process and in New England, it's gone to Town Meeting (everybody)

    plus, many capital projects have been the result of the work of a citizen committee - most towns have sewer committees, so they have been through the process of deciding where to extend sewer - the parks & rec committee already met in public to decide where the park is, what's on it and where's the bathroom - a new school? please, I've been through that siting process, you can't get more public

    all adding site plan review with the Planning Board or design review does is it give people another crack at a project they didn't like and lost the vote on - a private project gets less scrutiny, even without site plan

    so to me, municipal projects should be on the use table as allowed in all districts and no lot standards shall apply (it's wasteful to have the town get a 1 acre lot just to house a generator because the district requires a 1 acre lot)

    remember, the town is not a single lot owner, I've been at meetings where people talk about "the town" - well, they're the town, dammit - the project is a public project benefiting the public and the public okayed it by funding it, it's not a private project for the sole benefit of the single property owner

    so the next time somebody says, how come the town doesn't have to follow its own rules, have them call me -

    argh!

    edited to add: but due to public health and safety, a building permit and inspecitons should be required - that's different...
    Last edited by luckless pedestrian; 27 Oct 2006 at 10:58 AM. Reason: forgot to talk about building permits

  8. #8
    moderator in moderation Suburb Repairman's avatar
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    Quote Originally posted by giff57 View post
    Best practices usually means following your own rules, you don't want Joe Blow coming to a meeting with a picture of your illegal restroom asking for a variance.
    This is why we follow our own rules. If you aren't willing to do it for your own buildings, then maybe you shouldn't have the rule. That and you really don't want to have to explain why the city didn't follow its own rules sitting in front of a Board of Adjustment & Appeals.

    When my previous employer built a new city hall, they used an exterior material that was not permitted under the ordinance. They did not request a variance or anything. A month after the exterior material was installed, I received three variance requests to use that material on commercial buildings.

    Headline when the first variance was denied:
    "Variance denied for ___________ business to use same exterior material as city hall"

    There is no good quote a planner can make in response to that from a reporter. My line was "this issue was discussed by the citizen city hall design committee, but they felt the material was appropriate given other design priorities."

    I warned them repeatedly, but no one listened.

    "Oh, that is all well and good, but, voice or no voice, the people can always be brought to the bidding of the leaders. That is easy. All you have to do is tell them they are being attacked and denounce the pacifists for lack of patriotism and exposing the country to danger. It works the same way in any country."

    - Herman Göring at the Nuremburg trials (thoughts on democracy)

  9. #9
    Cyburbian
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    Max,

    You are correct about the role of the State Code. You do need to follow the land use ordinances (including the building code adopted by the state if your community has not adopted one for themselves). Public buildings should be the model and built beyond the code requirements. Your concerns are very valid.

    In my jurisdiction, we pulled a public building down that was done without a building permit or a land use permit. Even though it was a permitted use, the administration erected it without considering setbacks. And although the funding was given by the council, they just wanted a pavilion in the park, they didn't care where and left it up to the administration to go through the process. So, while a public hearing was held to allocate the funds, one was not held to discuss the site planning. Until we stepped in and corrected it.

  10. #10
    Cyburbian
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    Wow, thank you all. The creation of this park was approved some years ago on the condition that it be self-sustaining, so the town is responsible for it, but does not budget any additional tax dollars to it. It is run by a citizen committee and operates on use fees and donations, with leftovers going into improvements. Our capital facilities plan does not address improvements to it. So, luckless, in this case the public neither specifically agreed to fund the building, nor has seen any site plan or design. The planning commission and council have not seen it either.

    Your examples are a little scary, and cololi's comments really helpful, coming from our state; I think we'd better get an item added to the P&Z agenda!

    Public buildings should be the model and built beyond the code requirements.
    I am very glad to hear this said.

  11. #11
    Cyburbian Cardinal's avatar
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    Quote Originally posted by luckless pedestrian View post
    okay, I know I have given this speech before but here it is again:

    a municipal project has already been through a public process - if it's in the capital plan or in the operations of public works, it already went through the budget hearing process and in New England, it's gone to Town Meeting (everybody)

    plus, many capital projects have been the result of the work of a citizen committee - most towns have sewer committees, so they have been through the process of deciding where to extend sewer - the parks & rec committee already met in public to decide where the park is, what's on it and where's the bathroom - a new school? please, I've been through that siting process, you can't get more public

    all adding site plan review with the Planning Board or design review does is it give people another crack at a project they didn't like and lost the vote on - a private project gets less scrutiny, even without site plan

    so to me, municipal projects should be on the use table as allowed in all districts and no lot standards shall apply (it's wasteful to have the town get a 1 acre lot just to house a generator because the district requires a 1 acre lot)

    remember, the town is not a single lot owner, I've been at meetings where people talk about "the town" - well, they're the town, dammit - the project is a public project benefiting the public and the public okayed it by funding it, it's not a private project for the sole benefit of the single property owner

    so the next time somebody says, how come the town doesn't have to follow its own rules, have them call me -

    argh!

    edited to add: but due to public health and safety, a building permit and inspecitons should be required - that's different...
    I think you may be missing a few things here.

    1) The park committee, or the sanitary board, or the budget committee is not the plan commission. These boards are looking at other aspects of the project, and do not have the expertise of planning committee members or staff to look at siting, architecture, storm water, etc.

    2) In many communities, the committees you mention do not exist. A department decides it needs a new garage, or park restroom, or whatever, and it gets put in the budget. The department then goes to the manufacturer of some prefab structure and gets specs. It gets built wherever they decide to put it. All, unless, the plan commission has some say in it.

    3) This still does not touch on building permits and inspection. I'll restate my earlier point. The city should be certain that it is getting quality. How do you know this unless it is inspected?
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  12. #12
    Super Moderator luckless pedestrian's avatar
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    Quote Originally posted by Cardinal View post
    I think you may be missing a few things here.

    1) The park committee, or the sanitary board, or the budget committee is not the plan commission. These boards are looking at other aspects of the project, and do not have the expertise of planning committee members or staff to look at siting, architecture, storm water, etc.

    2) In many communities, the committees you mention do not exist. A department decides it needs a new garage, or park restroom, or whatever, and it gets put in the budget. The department then goes to the manufacturer of some prefab structure and gets specs. It gets built wherever they decide to put it. All, unless, the plan commission has some say in it.

    3) This still does not touch on building permits and inspection. I'll restate my earlier point. The city should be certain that it is getting quality. How do you know this unless it is inspected?
    Hi Cardinal -

    1.) that's what staff is for - this should be an in-house review and then a neighborhood meeting facilitated by the planner to go over the project and coordinate issues like hours of construction, construction routes, parking of workers, etc.

    2.) but the chief elected officials had to approve it, right?

    3.) I had posted that a building permit and inspections are necessary - in fact, if you use grant money, you often need a clerk of the works on the site separate from public works

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