New Hampshire Housing Appeals Board Took Effect July 1st

June 23, 2020
By: Trevor J. Brown

Effective July 1st, New Hampshire has a new administrative body in place to hear appeals of local land use decisions.  The New Hampshire Housing Appeals Board, an appellate body modeled off of the state’s Board of Tax and Land Appeals, will be empowered to “hear and affirm, reverse, or modify” final decisions made by local “municipal boards, committees, and commissions regarding questions of housing and housing development.”  RSA 679:5, I.  This includes everything from planning board decisions on site plans and subdivisions, to board of adjustment rulings on proposed variances, down to the decisions of local bodies such as historic districts and conservation commissions.  See, id.

Procedural Background and Legislative Journey.

The Housing Appeals Board was initially proposed in the 2019 legislative session as Senate Bill 306.  While Senate Bill 306 eventually died on the table during the 2019 session, the Housing Appeals Board was later moved into the biennium budget, which was approved by the legislature and Governor Sununu in September 2019.  The creation of the Housing Appeals Board was codified as RSA 679, with an effective date of July 1, 2020.

From the introduction of Senate Bill 306 in January of 2019 through this past spring, however, creation of the Housing Appeals Board has generated a great deal of discussion.

At the time Senate Bill 306 was introduced, concerns were raised that the Housing Appeals Board would take away local control.  Opposition to the Bill focused on the fact that the Board would increase administrative oversight at the expense of local decision making.  Opponents also pointed out that under existing law, land use matters involving zoning have an expedited review process in the Superior Court, thereby undercutting the need for the Board.

Advocates, on the other hand, argued that the Board’s purpose was not to usurp local decision making but was to create a quicker and more cost-effective avenue to challenge local land use decisions.  The Superior Court process, advocates charged, was costly and time-consuming, thereby delaying or jeopardizing otherwise viable projects.  Advocates also pointed to New Hampshire’s chronic workforce housing shortage, as the Board would have the power to determine appeals of workforce housing proposals.

While the Housing Appeals Board was eventually included in the budget package despite the tabling of Senate Bill 306, before the Board could even be formed, there was pushback.  In the 2020 legislative session, two Senate Bills – 721 and 735 – were introduced calling for the repeal of the Housing Appeals Board.  Echoing the arguments made in opposition to Senate Bill 306, opponents stated that the Board would subsume local control.  Similarly, advocates echoed their earlier praise, noting the significant workforce housing issues in the state together with the prospects that the Board could expedite appeals, saving time and money.

Senate Bill 721 not only would have repealed the Board, but would have required appeals of “any order or decision of the zoning board of adjustment or any decision of the local legislative body” to be heard by the Superior Court within 90 days of its receipt of the appeal.  Senate Bill 735, on the other hand, just would have repealed the Board.  Ultimately, both Bills were deemed “inexpedient to legislate.”

Composition of Housing Appeals Board.

With the failure of Senate Bills 721 and 735, the Housing Appeals Board will go into effect July 1st of this year.  Similar to the Board of Tax and Land Appeals, the New Hampshire Supreme Court will appoint the three members of the Housing Appeals Board.  See, RSA 679:2.  Specifically, RSA 679:1 requires that the Board include at least one attorney and at least one professional engineer or land surveyor.  On February 13, 2020, the Clerk of the New Hampshire Supreme Court issued a notice stating that the Supreme Court would be accepting applications for the positions.  Members of the Board will be full-time state employees and are not permitted to engage in “any other employment, appointments, or duties during their terms that [are] in conflict with their duties as members of the board.”  RSA 679:1.  The initial members of the Board will serve staggered terms of three, four, and five years.  RSA 679:2.  While the Housing Appeals Board will be in existence as of July 1, 2020, it is unclear when exactly the Board will begin accepting appeals of local land use decisions.

Superior Court or Housing Appeals Board – Where to File?

Although RSA 679 provides that an appellant may appeal to the Housing Appeals Board a final decision by a municipal board, committee, or commission “regarding questions of housing and housing development,” that is not an appellant’s only route of redress.  RSA 679:5, I.  Critically, RSA 679 does not abrogate an appellant’s right to bring suit in Superior Court over housing and housing related issues; rather, the Board has concurrent appellate jurisdiction with the Superior Court in these areas.  See, RSA 679:7.  As such, prospective appellants, having first exhausted all remedies at the local level, must determine whether to file their appeal before the Board or in Superior Court.

There may be advantages for appellants to appeal adverse local decisions before either the Housing Appeals Board or in Superior Court depending on the given facts and circumstances of a case.  For example, advocates of the Board argued that an appeal before the Board would be more cost effective than an appeal in Superior Court.  The filing fee for an appeal to the Housing Appeals Board is $250.  RSA 679:13.  The Superior Court filing fee is $280, but costs can increase when considering the cost of service.  Unlike in Superior Court, parties are permitted to be represented by non-attorneys before the Board, including by engineers, architects, and land surveyors.  RSA 679:10.  Similarly, the Rules of Evidence are not strictly applied before the Board, which may make the venue more accessible for those who are unrepresented or who are represented by non-attorneys.  RSA 679:9, I.  All that said, the Housing Appeals Board will be based in Concord, which could prove to be logistically challenging and more costly for appellants in more distant counties, versus having appeals heard in local county courthouses.  RSA 679:18.  Finally, while the Board is not yet in operation, under the governing statute, the members are required to be “collectively experienced in questions of land use law or housing development, or both.”  RSA 691:1.  Superior Court judges, on the other hand, hear a variety of matters on a daily basis – which may or may not include land use issues.  This factor may have no bearing on the ultimate outcome of an appeal, but nevertheless should be a factor taken into consideration by an appellant deciding where to file.

The timing of the appeals process might be the most significant difference between the Housing Appeals Board and the Superior Court.  Under RSA 679:6, appeals must be filed with the Housing Appeals Board within 30 days of a final decision at the local level.  See, RSA 679:6, I. “At the same time an appeal is filed with the board,” the appellant is required to notify the local government body that rendered the decision.  Id.  Within 30 days of receiving notice, the local board is required to submit to the Housing Appeals Board a certified record of its proceedings on the issue on appeal.  RSA 679:6, II.  Within 90 days of its receipt of a notice of appeal, the Board is required to hold a hearing on the merits; within 60 days of concluding the hearing on the merits, the Board is required to make a decision on the appeal.  RSA 679:6, III and IV.  Accordingly, the statutory scheme contemplates approximately a six month period from the time a decision is made at the local level to when a decision is made at the appellate level.

In Superior Court proceedings, an individual is similarly required to file an appeal of the local government body decisions within 30 days of a final decision at the local level.  See, RSA 677:15, I (requiring an appeal of planning board decision concerning a plat or subdivision to be filed with the Superior Court within 30 days “after the date upon which the board voted to approve or disapprove the application”); RSA 677:4 (providing that “[a]ny person aggrieved by any order or decision of the zoning board of adjustment or any decision of the local legislative body may apply, by petition, to the superior court within 30 days after the date upon which the board voted to deny the motion for rehearing”).  Under RSA 677:15, the Superior Court is required to give “any hearing under this section priority on the court calendar.”  RSA 677:15, IV; see also, RSA 677:5.  Despite this statutory provision, the Superior Court has other demands on its time and resources.  Criminal matters, for example, take necessary priority over civil matters as a constitutional concern.

All that said, it is important to note that regardless of which route an appellant ends up taking, critical prerequisite steps must be taken in order to bring an appeal.  For example, all administrative remedies at the local level must have been pursued and exhausted, including petitioning for a rehearing before the local government body that issued the initial decision.  See, e.g., RSA 679:5, IV (“After local remedies have been exhausted, appeals may be brought before the board…); RSA 677:3, I (“No appeal from any order or decision of the zoning board of adjustment, a board of appeals, or the local legislative body shall be taken unless the appellant shall have made application for rehearing…”).  

Similarly, it important to note that the decisions of planning and other local boards are given a good deal of deference under New Hampshire law.  See, e.g., Collden Corp. v. Town of Wolfeboro, 159 N.H. 747 (2010); Mountain Valley Mall Assocs. v. Municipality of Conway, 144 N.H. 642 (2000) (affirming lower court’s decision and noting that the local board decision was reasonable and not erroneous as matter of law); but see, Trustees of Dartmouth College v. Town of Hanover, 171 N.H. 497 (2018) (finding that the local planning board unreasonably relied upon personal feelings and ad hoc decision-making in denying site plan approval).  Indeed, RSA 679:9 specifically provides that the Housing Appeals Board “shall not reverse or modify” the decision of a local board/commission “except for errors of law or if the board is persuaded by the balance of probabilities on the evidence before it, that said decision is unreasonable.”  RSA 679:9.  This standard is the same as that provided under RSA 677:15, regarding appeal and review of planning board decisions, which states that the Superior Court “may reverse or affirm, wholly or partly, or may modify the decision brought up for review when there is an error of law or when the court is persuaded by the balance of probabilities, on the evidence before it, that said decision is unreasonable.”  RSA 677:15, V.

That said, RSA 679 does change the path to an appeal.  For example, if the matter to be appealed “has previously been or is subsequently included in an appeal in superior court by another party to the decision or by any other aggrieved or injured party who can demonstrate legal standing to appeal,” then the claim “shall automatically be stayed by the court to provide the party with standing the opportunity to intervene in the matter before the board.”  RSA 679:7, I.  “If intervenor status is granted, the stay of the court action regarding those claims shall continue during the pendency of the appeal to the board. After the board has decided the appeal, the court shall dismiss the matter before it to the extent the matter has been resolved by the board. Any claim included in an appeal to superior court that is not within the board’s authority shall not be subject to automatic stay by the court.”  Accordingly, prospective appellants must take into account, regardless of what forum they file in, the possibility of having the matter heard before the Housing Appeals Board as outlined in RSA 679:7.

Finally, it is important to note that, regardless whether an appellant chooses to proceed before the Housing Appeals Board or before the Superior Court, appeals from either body may be taken to the Supreme Court.

Conclusion.

Taken together, the creation of the Housing Appeals Board adds another tool for companies and individuals who are looking to appeal local government decisions on housing and housing development questions.  Depending on the type of appeal at hand, there may be advantages to pursuing an appeal before either the Housing Appeals Board or the Superior Court.  As the Housing Appeals Board gets up and running in the near future, it will become more clear to land owners, abutters, local government officials, and the broader legal community the impact the Board will have on this process.

The attorneys at Sulloway & Hollis understand the challenges of navigating housing and land use litigation, with extensive experience addressing housing and housing development issues before the Superior Court together with extensive experience appearing before other administrative appellate bodies. If you have questions about the Housing Appeals Board or other housing or land use matters, please contact Rob Lanney, Director of Business Development, at rlanney@sulloway.com or (603) 223-2831.