Ten Harris Road, LLC submitted a site plan application as a workforce housing project and requested a waiver of the 50 percent workforce housing requirement, but the planning board denied the waiver request concluding, among other things, that the provided financial information did not support it. Finding in favor of the applicant, the Housing Appeals Board vacated the planning board’s denial of the waiver request and remanded the matter to the planning board with instructions.
In this appeal, the New Hampshire Supreme Court held that when an applicant seeks a waiver of a workforce housing percentage requirement, a planning board cannot place the burden on the applicant to identify an appropriate percentage and demonstrate that the proposed reduced percentage is warranted and deny the waiver request if it does not do so.
The New Hampshire Supreme Court concluded that interpreting the town’s ordinance as placing the burden of identifying an appropriate workforce housing percentage below 50 percent solely upon the applicant seeking a waiver of the workforce housing requirement would produce an absurd result. The Court explained that such an interpretation would require an applicant to submit a new application requesting a different percentage of workforce housing each time the planning board decides that the requested percentage is inappropriate or unwarranted and that the planning board would have no obligation to engage with the applicant or discuss a mutually acceptable percentage. In addition, the applicant would not have the benefit of the planning board’s views on the project before it submitted its next waiver request, which would impose an onerous burden on applicants in both time and financial resources, while relieving the planning board of any obligation to express its views on what it might find appropriate for the project.
The Court further concluded that such an interpretation would contravene the legislature’s clear intent of encouraging the development of workforce housing throughout the state, citing RSA 672:1, III(e) (“Opportunity for development of [workforce] housing shall not be prohibited or unreasonably discouraged by use of municipal planning and zoning powers or by unreasonable interpretation of such power.”) and RSA 674:59, I (“In every municipality that exercises the power to adopt land use ordinances and regulations, such ordinances and regulations shall provide reasonable and realistic opportunities for the development of workforce housing . . . .”).
The Court finally concluded that such an interpretation would allow a planning board to engage in dilatory tactics that would contravene its duty to assist citizens in the application process, citing Richmond Co. v. City of Concord, 149 N.H. 312, 315 (2003) (noting that a planning board’s duty to provide assistance to all its citizens is “aimed at preventing municipalities from ignoring an application or otherwise engaging in dilatory tactics in order to delay a project”).
Thus, the New Hampshire Supreme Court affirmed the Housing Appeals Board’s vacation of the planning board’s denial of the waiver request. The Court declined to review whether the Housing Appeals Board acted unlawfully or otherwise exceeded the scope of its authority by remanding the matter to the planning board with instructions finding that the Town did not preserve that issue.
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