Upton & Hatfield, LLP partner Justin C. Richardson recently gave a presentation to the Telecommunications, Energy, and Utilities Section of the New Hampshire Bar Association on how the new ADU law impacts public water utilities in New Hampshire based on a case before the Public Utilities Commission.
Here are a few highlights and recommendations that operators of public water systems should consider:
What Are Accessory Dwelling Units?
ADUs are defined as “a residential living unit that is within or attached to a single-family dwelling, and that provides independent living facilities for one or more persons, including provisions for sleeping, eating, cooking, and sanitation on the same parcel of land as the principal dwelling unit it accompanies.” RSA 674:71.
The law authorizes each town to establish standards for ADUs in its zoning ordinance, provided that the square footage may not be less than 750 square feet. This means that the definition of an ADU can be different in each town or change from year to year.
The New Hampshire Office and Energy and Planning maintains a website on ADUs with examples of ADU ordinances and other information towns may want to consider.
Why Is the ADU Law a Concern for Public Water Systems in New Hampshire?
When the Legislature passed the ADU law, it was concerned that the setbacks for private wells and septic systems could preclude the issuance of building permits for affordable housing, even if ADUs were permitted by local zoning. To prevent this, the Legislature included a provision to prevent municipal building inspectors from requiring an ADU to have separate water or sewer systems. This provision, RSA 674:72, V, states:
The applicant for a permit to construct an accessory dwelling unit shall make adequate provisions for water supply and sewage disposal for the accessory dwelling unit in accordance with RSA 485-A:38, but separate systems shall not be required for the principal and accessory dwelling units.
Unfortunately, during hearings before the Legislature, the public health and operational requirements governing public water systems were not discussed or considered. The ADU law specifically maintains the requirements for the design of individual septic systems under RSA 485-A:38. However, the ADU law is unclear on whether local rules governing the public health, operations, and rates of water systems apply to ADUs.
For example, the Legislature did not address whether public water systems can require a separate rate or customer account. It did not address whether a public water system can require individual meters to comply with approved water conservation plans. It did not address whether separate service lines or backflow prevention devices may be required due to fire protection or irrigation systems which can potentially introduce contamination sources.
Recommendations for Municipal & Public Utilities Water Systems
Until the Legislature, the Courts, or the Public Utilities Commission consider the new ADU law, many questions will remain unanswered. However, there are steps that should be taken by the operators of public water systems to be prepared to address the new law and customer disputes and confusion.
- Public water utilities should consider amending their tariffs approved by the Public Utilities Commission (RSA 378:1) to clearly define when an additional customer account or charge, service line, shut-off, meter and back flow prevention device may be required. For example, in a recent case, the PUC held that a utility could not require a second customer charge for a vacation rental because the approved tariff did not authorize it.
- Municipal water departments, districts or precincts should consider adopting provisions in their water ordinances under RSA 38:26 and rate schedules under RSA 38:28 to an additional customer account or charge, service line, shut-off, meter and back flow prevention device may be required. Although not required by statute, consider holding a public hearing when adopting these requirements based on public health and cost of service requirements.
- Both Public Water Utilities and municipal water systems should consider requiring a customer to notify the utility before connecting additional buildings or bedrooms to an existing service connection.
- Make the water utility requirements known to the local building inspectors in each Town.
As always, consult with a qualified public utility or municipal attorney.