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, based in Concord, NH, is meant to provide a faster and more cost-effective route for appealing local zoning decisions than the superior court. The boards’ jurisdiction and procedures are found in RSA 679.
1) Composition of the Housing Appeals Board
The Housing Appeals Board will be composed of three members experienced in land use or housing development – with at least one being 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, and 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, and 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, including 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.
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, and 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, and 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 and 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, and 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, and it shall be subject to the penalties and damages provided by law in such cases.