VII.     BEYOND PROMOTION – BRINGING THE CHANGE 

Epping's Article 22

The remainder of this document provides the basis for planning board action on energy efficiency and sustainable design.  It focuses on the Epping example to give you one method used in NH to achieve this goal. 

Planning Board Duties and Energy Planning 

Energy usage and efficiency relates to a wide range of matters: 

·         Economics – Related to users, generators, suppliers, and industries as users and manufacturers of new technologies as an impact on economic development.

·         National security – domestic sources versus unstable global energy sources.

·         Environmental – pollution that results from inefficient generation and transmission.

Energy usage forms one of bedrocks of sustainable design – long considered the province of the planning board.  This approach has been formulated in many other approaches to site development, most notably through the Leadership in Energy and Environmental Design (LEED®) Green Building process.  Sustainable design approaches are defined by the US General Services Administration[1] as: 

Sustainable design principles include the ability to:

·         optimize site potential;

·         minimize non-renewable energy consumption;

·         use environmentally preferable products;

·         protect and conserve water;

·         enhance indoor environmental quality; and

·         optimize operational and maintenance practices.

Extracting any one of these topics from this issue would be confusing and contradict the foundation upon which sustainable design is formed.  As such, it is reasonable to conclude that one of the best suited municipal boards to shepherd these processes is the Planning Board.  

Policy

The support for a sound energy policy is well-known and there is no reason to retrace the development of these objectives.  The unique signature of these matters is the overlap of economic and environmental benefits.  Energy efficiency and climate change concerns are a quantifiable unification of these issues.  The issue for municipalities has awoken in the context of a perceived lack of leadership from the state and the federal government. 

Before moving on, it is important to note an interesting state of affairs regarding a term used liberally throughout this discourse, and the law, that is poorly defined.  The term “renewable energy”, strangely, is not defined in several of the statutory schemes applying to energy matters.  The only definitions that have been noted is in the context of the Deregulation scheme at RSA 374-F:3(V)(f)(3): 

“‘renewable energy’ means geothermal energy, tidal or wave energy, wind energy, solar thermal energy, photovoltaic energy, landfill gas energy, hydro energy, biomass energy, energy generated from bio-oil, bio synthetic gas, and biodiesel as defined in RSA 362-A:1-a, I, I-a, and I-b, or combusted municipal waste energy where mercury emissions are reduced to an emission rate of 0.028 milligrams per dry standard cubic meter or less corrected to 7 percent oxygen by volume on a dry basis, or at least 85 percent control efficiency.”

Another definition exists in the Multiple Pollutant Reduction Program at RSA 125-O:2: 

“VIII. ""Renewable energy'' means energy derived from hydro, geothermal, wind, solar thermal, photovoltaic, biomass, methane waste, tidal, or other source approved by the department.”

Planning for Climate Change and Energy Efficiency – The Planning Board

New Hampshire towns are granted broad authority in adopting Master Plans.  The ability to include municipal energy planning within such plans is specifically mentioned, but has not traditional been itemized in most planning efforts.  Building on the direct result of local participation and vocalization as evidenced in the Climate Change Resolution, energy resources and climate change is becoming a necessary part of the planning discourse.  The following statutory provisions provide clear authority for the planning board to facilitate this effort as part its role: 

672:1 Declaration of Purpose. – The general court hereby finds and declares that:

III-a. Proper regulations encourage energy efficient patterns of development, the use of solar energy, including adequate access to direct sunlight for solar energy uses, and the use of other renewable forms of energy, and energy conservation...  

674:1 Duties of the Planning Board. –

I. It shall be the duty of every planning board established under RSA 673:1 to prepare and amend from time to time a master plan to guide the development of the municipality.

II. The planning board may from time to time report and recommend to the appropriate public officials and public agencies programs for the development of the municipality, programs for the erection of public structures, and programs for municipal improvements. Each program shall include recommendations for its financing. It shall be part of the planning board's duties to consult with and advise public officials and agencies, public utility companies, civic, educational, professional, research and other organizations, and to consult with citizens, for the purposes of protecting or carrying out of the master plan as well as for making recommendations relating to the development of the municipality.

674:2 Master Plan; Purpose and Description. –

(II)…shall include…

(a) A vision section that serves to direct the other sections of the plan. This section shall contain a set of statements which articulate the desires of the citizens affected by the master plan, not only for their locality but for the region and the whole state. It shall contain a set of guiding principles and priorities to implement that vision.

(III)…may also include…

(g) A utility and public service section analyzing the need for and showing the present and future general location of existing and anticipated public and private utilities, both local and regional, including telecommunications utilities, their supplies, and facilities for distribution and storage.

674:3 Master Plan Preparation. –

I. In preparing, revising, or amending the master plan, the planning board may make surveys and studies, and may review data about the existing conditions, probable growth demands, and best design methods to prevent sprawl growth in the community and the region. The board may also consider the goals, policies, and guidelines of any regional or state plans, as well as those of abutting communities.

In conjunction with the above, considering the State of New Hampshire 10-year Energy Plan, any reasonable community would find itself with a major role in our state’s energy future.  The State Plan provides significant guidance for the State as an energy user in its facilities.  This is even more relevant for a town, particularly when tax savings is one of the results.  Consider the fact that the sum of energy used by all towns and cities in New Hampshire dwarfs that of the state government.  Energy planning for a local community becomes one of the most effective methods to implement the State’s own goals.  Although the plan fails to specific local governments as stakeholders and participants, almost every implementation and objective directly results from or relies on municipal action:   

A municipal energy plan should lay out, in general terms, the direction the municipality should move in terms of conservation, efficiency and renewables. This in turn forms the basis by which the energy committees can act, to develop and implement programs that pursue these goals. Therefore, an important early step in any town energy or climate action process is to consider the adoption of an energy and element in the town's master plan and make sure it is pointing in the right direction. Moving forward, several sources for assistance in developing or updating a municipal energy plan will likely coalesce around the climate change resolution success, including regional planning agencies.  Our neighboring state of Vermont has a more well-developed set of laws that specifically provides for an energy chapter in their comprehensive plans.  Several of these example plans can be secured through the towns, the internet, and Vermont regional planning commissions.  In New Hampshire, Dover, Hanover, Nashua, Manchester, Portsmouth, and Epping has initiated formal energy planning efforts.  Epping’s concise planning document is attached for reference.    

Regulating Energy Efficiency and Sustainable Design 

As a relatively new issue that has significant support for a flexible and creative approach to its goals, it falls in a similar arena as smart growth, one that requires partnerships, flexibility, and creativity. If a municipality chooses to pursue mandatory provisions it is important to consider the authority.

Our zoning laws are still haunted by the original enactments from the early 1900s.  A reexamination of these foundational statutes is important in order to understand what authority towns have as they consider these objectives in a more progressive manner.  The major sources for authority to consider these objectives are found primarily in the grant of power, the purposes of zoning, and the innovative land use statutes.  The grant of power, 674:16 is relatively straightforward and includes the specific authorization to adopt innovative land use controls under RSA 674:21.  

674:16 Grant of Power. –

I. For the purpose of promoting the health, safety, or the general welfare of the community, …

II. The power to adopt a zoning ordinance under this subdivision expressly includes the power to adopt innovative land use controls which may include, but which are not limited to, the methods contained in RSA 674:21. …” 

The stated purposes of zoning, including the traditional board police powers, specifically provide for several of the smart growth elements as well as a specific and detailed reference to encourage the use and installation of renewable energy systems.    

674:17 Purposes of Zoning Ordinances. –

I. Every zoning ordinance shall be adopted in accordance with the requirements of RSA 674:18. Zoning ordinances shall be designed:

...
(j) To encourage the installation and use of solar, wind, or other renewable energy systems and protect access to energy sources by the regulation of orientation of streets, lots, and buildings; establishment of maximum building height, minimum set back requirements, and limitations on type, height, and placement of vegetation; and encouragement of the use of solar skyspace easements under RSA 477. Zoning ordinances may establish buffer zones or additional districts which overlap existing districts and may further regulate the planting and trimming of vegetation on public and private property to protect access to renewable energy systems.  

Finally, the innovative section, which begins with “may include, but are not limited to:” implying a general and broad grant of discretion in considering innovation in land use approaches.  The most recent addition to this statute ended the frequent debate about whether such controls could be mandatory.  This debate centered primarily on the issue open space (or “cluster”) ordinances and whether they could be mandatory.  Many of these approaches are procedural in nature and include no limit on their subject matter – consider “performance standards”, which have been used for signage, lot coverage, architectural specifications, and now, in Epping, energy efficiency and sustainable design. 

674:21 Innovative Land Use Controls. –

I. Innovative land use controls may include, but are not limited to:...

674:44 Site Plan Review Regulations. –

…
II. The site plan review regulations which the planning board adopts may:

(a) Provide for the safe and attractive development or change or expansion of use of the site and guard against such conditions as would involve danger or injury to health, safety, or prosperity by reason of:

(3) Undesirable and preventable elements of pollution such as noise, smoke, soot, particulates, or any other discharge into the environment which might prove harmful to persons, structures, or adjacent properties; and

(h) Include such provisions as will tend to create conditions favorable for health, safety, convenience, and prosperity;

(i) Require innovative land use controls on lands when supported by the master plan; and

III. The site plan review regulations which the planning board adopts shall:

(c) Specify the general standards and requirements with which the proposed development shall comply, including appropriate reference to accepted codes and standards for construction;

Residential development regulations have the same broad grant of authority as well as some very specific provisions relating to renewable energy resources. 

674:36 Subdivision Regulations. –

II. The subdivision regulations which the planning board adopts may:

(j) Include provisions which will tend to create conditions favorable to health, safety, convenience, or prosperity; and

(k) Encourage the installation and use of solar, wind, or other renewable energy systems and protect access to energy sources by the regulation of orientation of streets, lots, and buildings; establishment of maximum building height, minimum set back requirements, and limitations on type, height, and placement of vegetation; and encouragement of the use of solar skyspace easements under RSA 477.

(m) Require innovative land use controls on lands when supported by the master plan.

Energy Efficiency as a Building Code

Aside from the above, many of these provisions appear to be building codes more than anything else and it is important to consider the New Hampshire Building Code, RSA 155-A, and the specific provisions allowing for additional action by a municipality as found in RSA 155-A:2(VI), incorporating the traditional zoning adoption process or  RSA 675:2-4 through RSA 674:51.