Alfano Law Office, PLLC

Alfano Law Office, PLLC
Phone: (603) 856-8411 • Fax (603) 290-5521
4 Park Street, Concord, NH 03301
  • Home
  • Real Estate Law
    • Road Law
    • Commercial Real Estate Law
    • Tax Abatements
    • Business Law
  • Estate Planning
  • About Us
    • Paul J. Alfano, Real Estate Attorney
    • John F. Hayes, Attorney
    • Terrie Harman, Attorney
    • Privacy Policy
  • Articles
  • Contact Us
    • Directions
  • Road Law Guide
  • NH Tax Abatement
    • Tax Abatement Team
    • Grounds for Abatement
    • Municipal Application
    • Owners of Properties Outside New Hampshire
    • Transfer Tax Allocation
    • Recent Laws and Rulings
  • Resources and Links
    • Allobar Strategies
    • Calendar and Key Dates
    • Equalization Ratio
    • NAPTA
  • Covid-19 Updates
You are here: Home / General / New Hampshire Housing Appeals Board Primer

New Hampshire Housing Appeals Board Primer

Effective July 1, 2020, a new option exists for appealing certain land use decisions involving questions of “housing” or “housing development.” The New Hampshire Housing Appeals Board is meant to provide a faster and more cost-effective route for appealing local zoning decisions than the superior court. The board is based in Concord, NH. Their jurisdiction and procedures are found in RSA 679.

1) Composition of the Housing Appeals Board

The Housing Appeals Board will be made up of three members. They will be experienced in land use or housing development. At least one will be an attorney and another a professional engineer or land surveyor. All board members will be appointed by the New Hampshire Supreme Court and commissioned by the governor for 5-year terms.

The board member roles are meant to be full-time positions. The members are precluded from representing or testifying in the land use cases that appear before the board.

2) Housing Appeals Board Authority

The board can hear appeals from final decisions of municipal boards, committees, and commissions. It has the authority to affirm, reverse, or modify these final decisions.

While the board’s authority only covers questions of “housing” and “housing development,” the statute describes these terms in a relatively broad manner and may include appeals from:

  • Planning board decisions on subdivisions or site plans.
  • Board of adjustment decisions on variances, special exceptions, administrative appeals, and ordinance administration.
  • The use of innovative land use controls.
  • Growth management controls and interim growth management controls.
  • Decisions of historic district commissions, heritage commissions, and conservation commissions.
  • Other municipal permits and fees applicable to housing and housing developments.
  • Questions involving mixed-use combinations of residential and nonresidential uses. Such different uses may occur on separate properties, provided such properties are all part of a common scheme of development.
  • Local land use boards regarding proposals for workforce housing.

The board’s authority parallels that of the superior courts. In deciding the appeal, the board can award all remedies available to the superior courts in similar cases. This includes permission to develop the proposed housing. In this way, the board has concurrent, appellate jurisdiction with the superior court; however, bringing an action before the board is a waiver of any right to bring an action in the superior court.

Similarly, the board may:

  • Administer oaths and compel attendance of witnesses to proceedings before it.
  • Issue subpoenas and subpoenas duces tecum.
  • Assess costs and attorneys’ fees as in the superior court (witness fees and mileage are also paid the same as in superior court).

3) Appeal Procedure

Before filing an appeal, the appellant must exhaust all local remedies.

Afterward, the appeal can be filed by the applicant or by any aggrieved party that can demonstrate legal standing. Parties that can demonstrate standing will be granted intervenor status in the proceedings. For example, if an aggrieved neighbor appeals the approval of the proposed development next door through this process, the developer applicant would be afforded intervenor status in the appeal before the board.

The statute essentially has made the Housing Appeals Board the preferred venue for these types of appeals. If one party files an appeal to the superior court and the opposing party files an appeal with the board, the superior court case would be automatically stayed during the pendency of the appeal to the board (regardless of which appeal was filed first). In this situation, once the board has decided the appeal, the superior court must dismiss the matter before it to extent the matter has been resolved by the board. However, any claim not within the board’s authority shall not be subject to automatic stay by the superior court.

4) Deadlines

Appeals to the board must be filed 30 days from the final decision of the municipal board.

The appellant must notify the municipal board when filing the appeal. Additionally, the government must be made a party to the proceeding. Once this notice is received, the municipal board has 30 days to submit a certified record of its proceedings on the subject matter of the appeal.

The board must hold a hearing within 90 days of receipt of the notice of appeal. At least 20 days prior to the date of the hearing, the board must serve notice in writing of the time, place, and cause of any hearing upon all parties; however, the board’s deliberative processes shall be exempt from public meeting and notice provisions of RSA 91-A.

After the hearing on the appeal, the board must make a decision within 60 days.

5) Standards for the Board’s Hearings

The standards for the board’s hearings are consistent with appeals to the superior court pursuant to RSA 677:4 and RSA 677:16. This means the appeal must be on the certified record. No additional evidence will be introduced unless, in the sole discretion of the board, justice warrants the inclusion of new evidence.

In the appeal hearing, the typical rules of evidence do not strictly apply. Nonattorneys, including professional engineers, architects, and land surveyors, may represent any party before the board. The board has the authority to adopt additional rules of procedure to be followed in the hearings.

The board may not reverse or modify a decision except for errors of law, or if the board is persuaded by the balance of probabilities, on the evidence before it, the decision is unreasonable. Decisions and orders in adjudicatory proceedings shall be publicly available after they have been reduced to writing, signed by a quorum of the board, and served upon the parties. They shall set forth the board’s rulings of law and findings of fact in support of its decisions. Proceedings also will be recorded and later made available to the public.

Decisions of the board may be appealed to the New Hampshire Supreme Court.

To enforce the board’s decision, any party may request the board file a certified abstract with the Merrimack County Superior Court. The clerk will enter judgment the same as any final judgment of the superior court.

To prevent the local government from ignoring the board’s decision, the statute specifically states that neglect or failure on the part of any municipality to comply with such orders shall be deemed willful neglect of duty. It shall be subject to the penalties and damages provided by law in such cases.

Filed Under: General, Real Estate Law

The above information is for informational purposes only and does not constitute legal advice.

Important Registry Updates
Important Court Updates

Subscribe to the Alfano Law Property Rights Alert

Sign Up Now

For Email Newsletters you can trust.
Allobar Strategies

NH Tax Abatement

  • Road Law Guide
  • NH Tax Abatement
    • Tax Abatement Team
    • Grounds for Abatement
    • Municipal Application
    • Owners of Properties Outside New Hampshire
    • Transfer Tax Allocation
    • Recent Laws and Rulings
  • Resources and Links
    • Allobar Strategies
    • Calendar and Key Dates
    • Equalization Ratio
    • NAPTA
  • Covid-19 Updates

NH Real Estate Law Articles

  • Common Neighborly Legal Issues
  • Court Updates
  • Easements
  • Estate Planning
  • General
  • Historic Designation
  • Legal Terms
  • Legislation
    • Business Law
  • New Hampshire Property Tax Alerts
  • Private Road Maintenance
  • Private Roads
  • Property
  • Property Investments
  • Property Rights
  • Property Tax Law
  • Quieting Title
  • Real Estate Law
  • Revocable Trust
  • Road Law
  • Tax Abatement
  • Taxes
  • Zoning Boards of Adjustments

Recent Articles

Private Roads and Easements – What’s the Difference?

You probably think there should be a difference between … [Read More...]

Environmental Clean Up on a Property – Who is Responsible?

Environmental issues are everywhere. Hazards like heavy … [Read More...]

Reasons to Review Your Estate Plan

Have you taken the time to set up your estate plan? If you … [Read More...]

What to Know About Maintaining, Repairing, and Extending Easements on a Property

An easement is a piece of land that people, other than the … [Read More...]

Article Archives

  • June 2022
  • May 2022
  • April 2022
  • March 2022
  • February 2022
  • January 2022
  • December 2021
  • November 2021
  • October 2021
  • September 2021
  • August 2021
  • July 2021
  • June 2021
  • May 2021
  • April 2021
  • March 2021
  • January 2021
  • December 2020
  • November 2020
  • October 2020
  • September 2020
  • August 2020
  • July 2020
  • June 2020
  • May 2020
  • March 2020
  • February 2020
  • January 2020
  • December 2019
  • November 2019
  • October 2019
  • September 2019
  • August 2019
  • July 2019
  • June 2019
  • May 2019
  • April 2019
  • March 2019
  • February 2019
  • January 2019
  • December 2018
  • November 2018
  • October 2018
  • September 2018
  • August 2018
  • July 2018
  • June 2018
  • May 2018
  • April 2018
  • March 2018
  • October 2017
  • May 2017
  • April 2017
  • March 2017
  • February 2017
  • January 2017
  • November 2016
  • October 2016
  • September 2016
  • August 2016
  • June 2016
  • April 2016
  • March 2016
  • January 2016
  • December 2015
  • October 2015
  • September 2015
  • August 2015
  • July 2015
  • June 2015
  • May 2015
  • April 2015
  • March 2015
  • February 2015
  • January 2015
  • December 2014
  • November 2014
  • September 2014
  • August 2014
  • June 2013
  • February 2012
  • December 2011
  • May 2011
  • July 2010
  • December 2005
  • Facebook
  • LinkedIn
  • Twitter

Alfano Law Office, PLLC, 4 Park Street, Concord, NH 03301 USA | Phone: (603) 856-8411
Copyright © 2022 · Alfano Law Office, PLLC. All Rights Reserved · Website design by InterActive Synergy, LLC