International Municipal Lawyers Association 2012 New England Regional Land Use CLE

1. International Municipal Lawyers Association2012 New England Regional Land Use CLE June 22, 2012 Work Session 11 Imposition of Conditions Enforcing Conditions Daniel D. Crean, Pembroke, New Hampshire

2. Topics for this work session • Work Session 8 addresses the manner in which conditions may be imposed, generally, and with specific reference to certain concerns. • Mike Donahue & Chris Boldt will address issues they have encountered. • Dan Crean will address use of developer improvement agreements and surety for performance and developer “promises.”

3. Developer Improvement Agreement • The sample in the materials is a sample – not a model • Purpose is to: • ID what is to be done and when it must be done • Easier to understand and read if it is not in land use board minutes or in hastily written notice of decision. • Form basis for issuing and drawing on surety, nature of which is to secure performance of a contract – so there should be a contract. • Place a degree on certainty into decision, albeit after the fact.

4. What about developer promises? • Though not an ideal method for enforcement, there is some justification (New Ipswich case in materials) for being able to enforce what developer says during proceedings. Queries: • If it’s important enough, why not included in motion? • Distinguishing between mere “puffery” and something that lies at core of why project approved.

5. Helping to craft a notice of decision • Suggest that Land Use Boards understand their importance. • Suggest that requests for findings can be more than annoyance. • Suggest that use of application and supporting materials in file may help. • Finally, be a good parent to the board and instill some patience: • THE DECISION DOES NOT HAVE TO BE MADE TONIGHT!

6. Thank You Questions, Comments, Concerns Contact: Attorney Daniel Crean Crean Law Office Pembroke, NH 03275 928-7760 creanlaw@comcast.net www.creanlaw.com