A new body housing advocates say is important to expediting housing construction across the state is facing challenges at the State House before it has even begun its work.
The state Housing Appeals Board was established as part of a year-end budget deal in 2019. It was intended to offer homeowners and developers a way to appeal decisions by local planning and zoning boards without the five- to six-figure costs of appealing to the Superior Court or the attendant delays as land use cases get backed up behind criminal ones.
The board was part of a package of reforms suggested by a large group of housing stakeholders convened in 2018 by St. Anselm College’s Center for Ethics in Business and Governance.
The board can only hear a case once all local remedies have been exhausted, and it must hear a case within 90 days of receiving the appeal and render a judgement within 60 days of the hearing. The board will be made up of an attorney, a surveyor and an expert in housing or land use issues, all appointed by the state Supreme Court for five-year terms. It is slated to begin its work later this year. The court is also authorized to appoint substituted members in cases of conflict of interest or other absences.
However, many local planning boards have strongly opposed the measure and a pair of bills have been filed in the Senate to undo the board’s creation before it even has a change to get off the ground.
Fear of Lost Authority
Senate Bills 735 and 721 got hearings recently before the Senate Judiciary Committee. The former would simply disestablish the board. The latter would replace it with an online application process for expedited review by the Superior Court and send the $400,000 already earmarked for the Housing Appeals Board’s startup costs to the courts to implement the new system.
Many town officials claim the Housing Appeals Board would “usurp” their authority, although it would rely on the same laws that ordinarily govern Superior Court review of their decisions.
“We have heard probably as much reaction to this bill as we have to any bill since I’ve been at the Municipal Association, which is 16 years,” Cordell Johnston, government affairs counsel at the New Hampshire Municipal Association, told the Judiciary Committee’s Jan. 28 hearing.
While the NHMA neither opposed nor supported the board’s creation in past years, near-unanimous outcry in last month from its member towns changed its stance, Johnston said.
At the core of many arguments against the board aired at the January hearing appeared to be discomfort with a process that would make it easier for their decisions to be challenged. Others worried smoothing the appeals process would lead to unchecked development.
“It seems to me that when the developer is turned down [under the current system], he has to take the town to court and pay the legal fees,” said Jim McConnell, a former state representative from Swanzey and a former alternate member of the town’s planning board. “It seems to me this bill puts the shoe on the other foot, wrongly.”
Current System Called Too Slow
Housing advocates and the state’s biggest business group are cool on both repeal bills, saying the board is a necessary piece of larger efforts to streamline the state’s land use regulations to encourage more housing construction.
“Whether its admissible or not, planning boards are using and weaponizing the legal system to delay and to delay and to delay and to add expenses [for developers,]” Sen. Bob Giuda, R-Warren, said during the Jan. 28 hearing. “It’s a significant factor in the inability to develop properties.”
While the Superior Court has a so-called “rocket docket” for land use cases, a constitutional requirement for criminal cases to be heard first frequently delays these appeals, said Ben Frost, managing director for policy and public affairs and New Hampshire Housing. The state is one of the five most litigious states when it comes to land use issues, St. Anselm College Center for Ethics in Business and Governance Director Jason Sorens said.
The board would also help rein in towns that try to unfairly deny projects, supporters say.
“I’ve had planning board members tell me ‘We don’t want workforce housing. We don’t want those kinds of people in our community. They can go to Manchester,’” Sen. Sharon Carson, D-Londonderry, told the committee.
Supporters at the hearing repeatedly brought up the state’s housing crisis, and the effect of low housing production on the state’s businesses.
“Employers are challenged to attract workers because many job applicants are unable to find affordable housing. That’s because many towns put up roadblocks to affordable housing for working people,” David Juvet, senior vice president at the Business and Industry Association told the Judiciary Committee.
