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”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.”
As the state legislative session nears a close, housing advocates are on the cusp of some major victories. Celebrations, however, will need to wait until bills are signed and the budget is finalized. The most recent state-of-play on state affordable housing priorities are below.
There is also promising momentum at the federal level with the reintroduction of the Affordable Housing Credit Improvement Act in Congress as well as attention to the affordable housing crisis from several presidential primary candidates.
Read more here.
Housing Action NH, a coalition of more than 80 New Hampshire companies and social service organizations, wants the presidential candidates to talk more about what it says is an affordable housing crisis in the state.
The state coalition has entered into a partnership with the National Low-Income Housing Coalition to “elevate the affordable housing crisis and its solutions in the presidential campaigns. With the housing crisis having reached historic heights, most harming the lowest-income renters, it is past time for all presidential candidates to prioritize this critical issue,” said Diane Yentel, president and CEO of the national coalition.
Read the full article here.
We will focus this edition of our newsletter on the number of legislative proposals still in play at the State House. We thank the many members of the Housing Action NH coalition who have engaged with policymakers this year and we ask for your ongoing support as we head into the final key months of the legislative session.
Although the lengthy federal government shutdown is still impacting the housing community as they work to catch up with payments and project delays, the final passage of the FY 19 budget brought generally robust funding levels to key programs. At the state level, several promising bills are working their way through the legislature.
The new year brings both opportunity and concern for affordable housing advocacy. At the federal level, the longest government shutdown in American history threatens the stability of tenants, homeowners and property owners connected to HUD and USDA programs. At the state level, there are several promising legislative proposals to help address the shortage of affordable housing.
The end of summer means we can turn our attention to the federal appropriations cycle, local fall conferences, statehouse hearings on bills referred for interim study as well as preparations for the 2019 state legislative session and budget year.
Where will New Hampshire’s workforce live?
We need to make sure all of our systems are working as efficiently as possible as developers try to respond to market demand for more affordable housing.
Sponsors: Senators – Bob Giuda, Dan Feltes, Sharon Carson, David Watters, Jeb Bradley, Jeff Woodburn; Representatives – Dick Hinch, Ed Butler
- Property owners and housing developers who want to challenge local land use decisions face a costly and time-consuming process.
- Some developers simply forego attempts to develop in communities where they anticipate opposition.
- Others who take on that challenge often face years of litigation. Even if they prevail in court, the costs of litigation are only passed on to consumers through increased home purchase prices and rents.
How it will function:
- As an alternative to trial court, the Housing Appeals Board will be able to review local planning and zoning board decisions and will provide a faster and less expensive appeals for developers and property owners.
- The Board is specifically designed to have no impact on local control.
- It will consist of three members appointed by the Supreme Court for three-year terms.
- The Board will hear appeals of decisions by planning boards, zoning boards, and any other housing-related local permit or decision and the Board will have only those powers already exercised by superior court.
- Board will have concurrent, appellate jurisdiction with superior court to hear appeals. The choice is exclusive – appellant must decide between superior court and the Board.
- Appeals may only be brought by the applicant for a local permit; the municipality will be a party to the appeal; others with standing may be granted intervenor status
- The Board must hold a hearing within 90 days of the appeal, and must make a decision within 60 days after the hearing. Total = 150 days from appeal.
- Board decisions may be appealed to Supreme Court.
- Board members will be paid full-time employees and must have experience in land use law and/or housing development; at least one must be a lawyer and at least one must be a professional engineer or land surveyor.
Endorsements: Business and Industry Association; NH Homebuilders Association; NH Association of Realtors; Housing Action NH; and NH Planners Association
With just weeks left in 2017, federal broad-based tax reform legislation could have adverse impacts on affordable housing development. At the state level, a new housing appeals board proposal would address some of the barriers to affordable housing development. Finally, a new report on the state of homelessness in New Hampshire reveals how the lack of affordable housing is connected to the rise in homelessness.