The New Hampshire Housing Appeals Board (“HAB”) issued its first decision in May 2021, Shattuck v. Francestown (May 7, 2021). The decision is a “win” for property owners. It adds much-needed clarity to the approach planning boards should take when considering subdivision applications.
The HAB’s decision comes down to the following two sentences: “[T]o deny a property owner’s subdivision request where the owner is in compliance with the regulations is unreasonable and inconsistent with the owner’s property rights…Generalized concerns of noncompliance which are not specifically itemized in the Town’s zoning ordinance or Planning Regulations do not constitute a viable and reasonable basis for plan denial.”
Background on the HAB
The New Hampshire legislature created the HAB in 2019. Among other things, the HAB has jurisdiction to hear appeals of municipal denials of subdivisions. The HAB will uphold a planning board’s decision unless the decision is unsupported by the record or is legally erroneous as viewed by a reasonable person based on the same evidence. The HAB does not make its own factual findings; the factual findings of the planning board are deemed lawful and reasonable.
Shattuck v. Francestown
The Shattuck case involved a proposed five (5) lot subdivision in Francestown. The planning board denied the plan, citing several reasons, none of which survived the HAB’s scrutiny:
- the application did not conform to the preamble to the zoning ordinance;
- the applicant removed trees (legally) prior to the hearing;
- the application failed to designate building envelopes (even though the planning board failed to fulfill its obligation to designate the building envelopes it wanted to see);
- the application failed to comply with town buffer requirements (which the HAB found did not apply);
- the application failed to provide a sufficient sediment and erosion control plan (where the proposal did not trigger this requirement);
- the application failed to comply generally with local ordinances, the master plan, New Hampshire law and federal law; and
- the planning board found no substantial public benefit would result from it waiving any of the above-listed shortcomings.
The HAB addressed each these reasons and concluded none cited a specific violation of the zoning ordinance.
Not only must planning boards base decisions on objective facts, “all municipalities have a duty to provide reasonable assistance to landowners seeking approvals.” Rather than provide reasonable assistance, the Francestown planning board “repeatedly suggested zoning violations existed with no clear identification of the specific, applicable zoning provisions.”
Subdividing one’s land should not be a protracted game of “whack-a-mole” with shifting, vague demands. Zoning ordinances and subdivision regulations exist to provide clear guidance for developers and planning boards. If a planning board member does not like a provision of an ordinance, he or she may seek to have it changed. However, the member cannot try to impose a non-existent requirement on an applicant. The Shattuck decision defends this principle.
For more information on the Housing Appeals Board, please see the article posted on our website.