NIMBY Arguments in New Hampshire

NIMBY, or “Not in My Back Yard,” is a term used to describe opponents of renewable energy projects concerned about local impacts.  But what happens when this local perspective conflicts with state policy favoring the development of renewable energy resources?  A review of the legislation authorizing local land use control sheds light on how NIMBY arguments can play out in yards across New Hampshire.

Although most local land use decisions are made by local bodies, such as the planning board or zoning board of adjustment, the state has sole authority under RSA 162-H to approve large renewable energy projects (i.e. above 30 megawatts) and smaller renewable energy projects (i.e. between 5 and 30 megawatts) if the Site Evaluation Committee decides to assert jurisdiction. Where local bodies have not been preempted by state siting authorities, local bodies oversee conflicts between the potential renewable energy developer and neighbors.  Because New Hampshire is not a home rule state, all powers wielded by a municipality must be expressly authorized by statute.  A series of New Hampshire statutes provide just this authority.  For example:

  • RSA 673 empowers municipalities to establish local land use boards, such as the planning board and zoning board of adjustment.
  • RSA 674:1 empowers municipalities to adopt master plans and RSA 674:16 empowers municipalities to adopt zoning ordinances, “[f]or the purpose of promoting the health, safety, or the general welfare of the community.”
  • RSA 672 states policy reasons for empowering municipalities to govern local land use concerns.

Together, these statutes gird municipalities with substantial power to dictate local land use decisions.

Municipalities can use this power to control the type, extent, and location of development directly or indirectly.  For example, a zoning ordinance could directly prohibit a particular use from a given zone:  no commercial solar panel installations in the residential zone.  Or a zoning ordinance could indirectly prohibit the use by application of another parameter that has the effect of prohibiting the use: no structure over 100’ in the residential zone when it is widely known that commercial wind turbines are over 100’ tall.

However, the power that local land use bodies wield on siting energy projects within their purview is not without limit.  For example, embedded in RSA 672:1, III-a is an admonishment that “the installation of solar, wind, or other renewable energy systems or the building of structures that facilitate the collection of renewable energy shall not be unreasonably limited by use of municipal zoning powers or by the unreasonable interpretation of such powers except where necessary to protect the public health, safety, and welfare.”  This statute functions as a policy statement on the importance of renewable energy and as a check on the local land use body’s ability to use NIMBY rationale to limit renewable energy development within its boundaries. Practically speaking, this means that a municipality is not empowered to prohibit renewable energy development simply because renewable energy development is not expressly allowed in the municipality’s zoning ordinance.  The “unreasonable limitation” standard contained in the statute could potentially be used to justify a wind turbine in a residential zone where not expressly prohibited, for example, despite the fact that the zoning ordinance does not expressly allow wind turbines in the residential zone.  At least one New Hampshire municipality, the City of Franklin, has advanced this argument in favor of a proposed solar farm.

It remains to be seen whether this interpretation succeeds, and whether the statute can be used to counter NIMBY arguments that could stifle renewable energy development.

About the Author: Laura Hartz

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