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Housing Appeals Board Keeps Projects Going

Published Monday Nov 29, 2021

Author Judi Currie

As housing prices soar and vacancy rates fall below 1%, exacerbating the housing shortage, the NH Housing Appeals Board is quietly moving projects along.

For years, developers and nonprofits trying to build workforce and affordable housing, often targeted to those earning about 60% of the area median income, have struggled with delays at the hands of local land use boards. If a community views a type of housing as desirable, such as market rate or luxury senior living, projects can speed through in a matter of weeks, while affordable projects often take years to win approval.

The Housing Appeals Board (HAB) was established by the NH legislature during the 2020 session to handle planning and zoning appeals, with clearly defined procedures and deadlines. The makeup of the board must include an attorney, a real estate expert, and an engineer or surveyor.

Board chair Gregory Michael, an attorney with Bernstein Shur and former judge, says the formula is a good one. “It is fun to get the cross-feed and helpful analysis from people who approach an issue a little differently.… It’s worked out quite well.”

The other two members of the board are Elizabeth Fischer, former program manager at Build Green NH and Home Builders Institute, bringing the real estate perspective, and Edward Rogers, a surveyor and professional engineer.

Michael says the HAB must hear a case within 90 days of filing and decide it within 60 days. “In legal terms, that is a pretty prompt calendar,” he says. As of mid-September, the Housing Appeals Board was up to 20 cases: seven planning board appeals, 12 zoning board of adjustment appeals and a board of selectmen appeal. Out of these cases, the Housing Appeals Board has heard 12.

“It’s varied between homeowners requesting things and developers looking to build workforce housing,” says Michael. “It has been a fairly interesting mix that I expect will continue because you never know where the next case is coming from.”

In Ten Harris Road, LLC v. Town of Windham, the planning board denied an applicant’s proposed workforce housing development on a 6.5-acre property, in part, according to the town, because it did not meet the town’s required 50% threshold for workforce housing. The developer, through expert testimony, made the case that 23% made the project viable.

The decision was vacated; and the matter remanded back to the planning board to reconsider “an appropriate workforce housing percentage” in accordance the state’s workforce housing law, which requires that towns not place unreasonable burdens on workforce housing development.

In a case involving Chichester, the applicant had first come before the town in 2015 to build over-55 housing that never moved forward, then submitted to build affordable housing and again did not move the project forward, only to return to the first plan, expecting that waivers granted in 2015 would still apply. But the board affirmed the decision of the town, stating among other factors that planning does not occur in a vacuum, and that decisions need to be based on current regulations and standards.

Michael says he has long felt that a separate land use board was a good idea. He says it is not a criticism of the superior court process but an understanding that many judges don’t have significant experience in land use matters.

“The reasoning of the legislature was, first, to bring in people with expertise, second, make it more efficient, and third, reduce cost if we can. Those three things: efficiency, expertise and expense were part of the legislative thought process,” says Michael. “Sometimes the town is right and the developer can come up with a better plan, do something a little different to keep the process moving rather than wait for a year or two to see if the project has viability. When it comes to the housing appeals board, whether you win or not, the ball keeps moving.”

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