Archive for January, 2020

Frequently Asked Questions Regarding the Housing Appeals Board

Why Do We Need a Housing Appeals Board?

  • Property owners and housing developers who seek a legal review of local land use decisions now face a costly and time-consuming process.
  • Developers, particularly affordable housing developers, often forego attempts to propose developments in communities where they anticipate opposition.
  • The costs of litigation are passed on to consumers through increased home purchase prices and rents.
  • New Hampshire is experiencing an “affordable housing crisis”[1]and there is a need to enhance the efficiency and expertise of the review process.

Where Did the Idea for a Housing Appeals Board Come From?

  • A group of stakeholders proposed a more efficient review system, based on the model of the Bureau of Tax and Land Appeals (BTLA), in 2017.
  • SB 557 was introduced in 2018. The bill was sponsored by: Senator Giuda (prime); Senator Feltes; Senator Carson; Senator Watters; Senator Bradley; Senator Woodburn; Representative Butler; and Representative Hinch.
  • SB 557 was supported by:
    • Governor Sununu’s Regulatory Reform Steering Committee: See 2018 Report.
    • The Business and Industry Association
    • The NH Association of Realtors
    • The NH Homebuilders and Remodelers Association
    • NH Planners Association
    • The Housing We Need Initiative at St. Anselm’s Center for Ethics in Business and Governance
    • Housing Action NH

What is the History of the Legislation?

  • The Senate passed SB 557 on a voice vote on March 15, 2018. The House recommended the bill for interim studyin a division vote of 223-91 on April 26, 2018, then recommended the bill for future legislation in a vote of20-2.
  • Senator Giuda, along with Senator Rosenwald, Senator Carson, Senator Feltes, Senator Fuller Clark, Senator Watters, Representative Butler, Representative Wallner, Representative Hinch, and Representative Porter, reintroduced the Housing Appeals Board in the 2019 session, in SB 306.
  • A House version of the Housing Appeals Board, was introduced by Representative Ober, through HB 104. The stakeholders urged support for the Senate version, rather than the House version, and the bill was ITL’don January 31, 2019 through a voice vote.
  • The Senate Election Law and Municipal Affairs Committee recommended that SB 306 ought to pass, 3-2. SB 306 was then heard by the Senate Finance Committee and received an ought to pass recommendation, 6-0.
  • Finally, the Senate passed SB 306 in a roll call vote of 18-5. As is a frequent practice during budget years, Senator D’Allesandro, chair of the Senate Finance Committee, requested that SB 306 be tabled and addressed within the budget.
  • The language from SB 306 was included in House Bill 2, then House Bill 4.
  • The Housing Appeals Board was discussed by conferees during the Committee of Conference for the FY 20-21 budget. Conferees agreed to the request that the appropriation for the Housing Appeals Board move to FY 21. The Housing Appeals Board and its appropriation of $415,000 was included in the final version of HB 4.

How is the Board Appointed?

  • Per RSA 679:2, the members of the Board shall be appointed by the Supreme Court.

What Are the Required Qualifications of Board Members?

  • Per RSA 679:1, the board shall be composed of 3 members who shall individually and collectively be learned and experienced in questions of land use law or housing development or both. At least one member shall be an attorney licensed to practice law in the state of New Hampshire, and at least one member shall be either a professional engineer or land surveyor. The members of the board shall be full-time employees and shall not engage in any other employment, appointments, or duties during their terms that is in conflict with their duties as members of the board
  • Furthermore, to ensure fairness and neutrality, per RSA 679:8, II, no member of the board shall represent a party or testify as an expert witness or render any professional service for any party or interest before the board, and any member having an interest in the subject matter shall be disqualified to act therein.
    If, in the event of a disqualification or temporary disability of a member or members of the board, it shall become necessary to do so, the board, subject to the approval of the supreme court, shall appoint such number of temporary board members as shall be necessary to meet the requirements herein imposed. Such temporary board members shall serve with respect to such matter until the same has been fully disposed of before the board.
    IV. Temporary board members shall have the same qualifications as regular board members in whose place they are acting.

Will the Housing Appeals Board be Required for Housing-Related Cases?

  • It is the choice of the applicant. Per RSA: 679:7, the board shall have concurrent, appellate jurisdiction with the superior court.
  • Applicants with standing, i.e. a property owner or developer, can choose either the Housing Appeals Board or the Superior Court for review.

Can Housing Appeals Board Decisions Be Appealed?

  • All decisions of the Housing Appeals Board can be appealed the NH Supreme Court.

What Are the Arguments that Demonstrate that the Housing Appeals Board Has No Impact on Local Control?

  • Per RSA 679:5, IV, appeals may be brought to the Housing Appeals Board after local remedies are exhausted.
  • Noted in a legislative bulletin from the NH Municipal Association, in 2019: “The board would apply the same law and the same standards that a judge would apply, so a municipality would not be prejudiced by having an appeal brought to the board rather than to the court.”
  • Also noted in a legislative bulletin from the NH Municipal Association: “We have heard a flurry of opposition in the past week based on concerns that the bill allows unelected state actors to overturn the decision of a local land use board. But that situation already exists—that is what happens when Superior court judge reverses a planning or zoning board decision. The process is exactly the same under SB 306, except that the reviewing body is a three-person board, rather than a judge.”

 

[1]Business NH Magazine, February 2019 issue