By GUY C. DENECHAUD

Getting business permits approved by municipal boards can be challenging in light of environmental and land-use regulations, and such approvals often require an attorney’s research and experience.

A special permit or waiver often is required to develop commercial or industrial properties or to change the land use. Other considerations include zoning regulations, as well as required government meetings and public hearings. Statutes differ between cities, and between the states of New Hampshire and Vermont.

Many attorneys take on an occasional client seeking a business permit, but few make it a special focus. Several Upper Valley attorneys including Dan Hershenson of Hershenson, Carter, Scott & McGee in Hartford, VT make it a primary specialty that absorbs a large amount of time.

Other attorneys, such as Stephen Girdwood of Stebbins Bradley Harvey Miller & Brooks, P.A., in Hanover, NH and Patrick Hayes of Baker & Hayes in Lebanon, NH also devote much time to these projects, and are familiar with the ways different municipalities handle these requests.

New Hampshire

While commercial real estate and real estate development is the primary focus of his practice, Stephen Girdwood has worked on behalf of clients seeking permits or approvals in connection with commercial applications since the middle 1990s.

Being properly prepared is crucial, especially if the proposal is considered controversial or generates concern among neighbors. Some cases address potential environmental impacts when a developer selects a spot already protected by regulations.

“I am usually called upon in the planning stage, often when business or office construction is being explored,” said Girdwood. “In preparing to seek a permit or a special exception to a regulation, we need to consider not only the wording of the code, but also the way that it has been interpreted in the past.”

Laws, including zoning codes, often contain a certain amount of ambiguity and flexibility. While some are fairly simple and clear, it’s hard to foresee all of the possible uses a business owner might want to try to develop on a property, so both rigidity and flexibility may come into play to some degree.

“Whether you are addressing wetlands concerns, water resources or usage, boundary issues, licensing or other administrative obstacles, seek the advice of those who do this for a living,” advised Patrick Hayes of Baker & Hayes. “A local professional who knows the local official or board before which you are appearing, is most likely to give you the best results. Do not be afraid of the process.”

Municipalities and boards must tread carefully when interpreting and applying their rules so they’re not accused of being prejudiced or giving someone preferential treatment. Historical precedent that has been established on similar requests and applications can indicate how a new application will be received.

“In New Hampshire, there are some cases where a variance is required, and in others where there is only a marginal conflict with the regulations, a special exception may be sufficient,” Girdwood said.

While he said there hasn’t been a tendency to either tighten or water down regulations statewide during the last few years, political changes – driven by heightened environmental concerns and economic worries within a community – can change the rigidity of an application. Towns, including Hanover, are increasingly realizing it’s wise to officially notify all abutters of a property about a potential land-use change.

Research into the historical use of a property or rights of way may be valuable to help make a persuasive case for an applicant’s new application. Regular past use of all or a portion of a piece of property may help legitimize a continuation of a use.

Almost all towns have histories that precede their zoning codes, resulting in many cases where existing uses have been accepted, or grandfathered, even though the uses might not be approved if proposed today. Businesses that continue to operate through grandfathered exceptions may be allowed to continue to do so even if the business is sold to new owners; however, a new owner/operator may find it difficult to change or expand the business in any way that might aggravate an element such as a parking shortage, or the generation of noise, sewage or air pollution considered potentially troublesome to a neighborhood.

Vermont
Attorney Dan Hershenson of Hershenson, Carter, Scott & McGee has made helping entrepreneurs and applicants to obtain permits for commercial projects of all sizes his primary focus more than 25 years.

Plans for shopping centers, residential developments and business expansions have been approved with pivotal assistance from Hershenson. He has helped to secure permits at state and town levels throughout Vermont, including such large and challenging endeavors as the Quechee Lakes residential development, which is the largest second-home development in the state; the Long Trail Brewing Company in Bridgewater Corners; and the Diamond Run Mall in Rutland.

Hershenson said Vermont’s permit process is in a constant state of evolution. There was some consolidation of the appellate processes several years ago, with the Environmental Court now hearing virtually all appeals of decisions that come from local boards, the Act 250 Commission and the Agency of Natural Resources, but most projects still require a series of permits.

“I think that, along with the importance of learning the rules that apply to a variety of issues that must be addressed in many of these projects, and the value of knowing how the rules affecting development have been interpreted in similar past cases, explains why there are so few attorneys making this a specialty,” Hershenson said.

Hershenson has found there is sufficient demand for this work, and enough complexity involved with each municipality having its own twists and turns in its zoning codes, that permitting is a specialty that is fully absorbing.

With larger projects, the development process begins by selecting a team of engineers and other specialists to conduct the required research and preparation on such diverse matters as traffic, water and wastewater, soils, erosion, wildlife and environmental issues and the possibility of having to seek an Act 250 land-use permit.

“Before construction can begin, a series of permits must be sought sequentially, not simultaneously, and most clients have little idea how to follow the most productive path to get it completed. Applicants need to be very careful that there is consistency among the various drawings and representations that are made. We help to coordinate this process, usually representing the developer,” Hershenson added.

Several critical approvals revolve around water. There are two permits required for stormwater alone. A construction permit is intended to minimize erosion while construction is taking place, and the other permit controls significant runoff on impervious surfaces.

Permitting can be a lengthy process when the needs of the project call for more than a building permit, and interpretation of applicable statutes is as important as their content.

Hershenson said it’s best to do research before submitting an application, and to discuss a realistic assessment of a project with the client. Not all projects will be approved as they are originally conceived, and it may be necessary to modify or negotiate some elements with a board in order to gain approvals.

Anticipating potential problems and neighborhood resistance early on, and devising modifications that may help the plan win approval, is part of the job. Otherwise, opposition from neighbors can escalate, creating an adversarial environment that can add significantly to the project’s time and expense.

With a long list of contacts including other specialists in the field, governmental agencies, and a library that includes more than 30 years of related case law, many developers, entrepreneurs and even other lawyers seek Hershenson’s guidance in environmental law matters.

The permitting process can be challenging, but nearly everyone agrees that carefully navigating the development process to maintain a consistent and sustainable pattern of land uses is a small price to pay to protect the region’s long-term economic viability without diminishing its quality of life.