Housing Appeals Board Decision Affirmed by New Hampshire Supreme Court in Planning Board Appeal
In a January 18, 2023 opinion, the New Hampshire Supreme Court (the “Court”) affirmed an order rendered by the Housing Appeals Board (the “HAB”) vacating the Town of Amherst’s Planning Board’s (the “Board”) denial of a subdivision and site plan submitted by Migrela Realty Trust II and GAM Realty Trust (collectively the “Applicant”).
The facts surrounding this case first began in November 2020, when the Applicant filed a subdivision and site plan approval application with the Board for fifty-four age-restricted and unrestricted housing units. In April 2021, the Board denied the project based on concerns with state and federal housing law, specifically as it relates to elderly housing discrimination. The Board additionally found that the project failed to comply with “rural aesthetic” design requirements as required by zoning ordinances. The Applicant appealed the denial to the HAB, which vacated the Board’s decision, and the Board subsequently appealed to the New Hampshire Supreme Court.
In its opinion, the Court first explained its review process of decisions rendered by the HAB, reasoning that it will not set aside an order issued by the HAB except for errors of law, unless there can be established by a clear preponderance of the evidence that such finding is unjust or unreasonable. RSA 541:13 (2021).
The Board first argued that the HAB erred in its finding that the Board’s denial was unreasonable when the Applicant continually failed to demonstrate compliance with elderly housing law. The HAB acknowledged that certain issues with elderly housing laws needed to be addressed but found that the remedy should be to make compliance with housing law a condition for site approval, rather than flatly denying the application. Specifically, the HAB directed on remand that the Board and Applicant “…engage in a collaborative discussion regarding state and federal age-restriction rules associated with the proposed…”
The Board next contended that the HAB erred in its assessment of the Board’s legal review of the application. The HAB found that although the application was given to the Board’s legal counsel, along with a check from the Applicant for the cost of the legal review, counsel never actually conducted a legal review. Rather, Applicant’s check was returned with a letter explaining that the “review had not yet taken place.” The Board asserted that it was able to determine for itself that the application did not meet state and federal elderly housing requirements. The HAB found that this was a break from custom and such was unreasonable.
For its final argument, the Board alleged that the HAB erred in its finding that it was unreasonable for the Board to deny the project based on alleged non-compliance with “rural aesthetic” requirements. The HAB concluded that it was unjust to deny the application based on these requirements, when the Applicant had previously been granted a conditional use permit, of which the rural aesthetic criteria was included.
The Court found that no reversible error on the part of the HAB could be shown, and that no decision by the HAB was shown to be unjust or unreasonable and the HAB’s order was affirmed.
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