Housing Appeals Board comes under fire at NH Senate hearing

Local officials say panel would be ‘harmful’ to state’s economy

Before the New Hampshire Housing Appeals Board has even been formed, it has come under attack, with two Senate bills calling for its repeal.

In response, business and housing groups have rushed the board’s defense. And at first blush, it appears that many members of the Senate Judiciary Committee seemed to be on their side during Tuesday’s hearing.

The appeals board, passed as part of last year’s budget compromise, is modeled on the Board of Tax and Land Appeals. It is as an attempt to settle disputes between developers and municipalities without going to Superior Court. The board, like a court, could overrule or remand a local board’s decision and then either side could appeal the board’s decision, just as in Superior Court, to the state Supreme Court.

A diverse collation of groups – ranging from the Business and Industry Association of New Hampshire, the New Hampshire Association of Realtors, the Homebuilders Association and housing affordability groups – came together last session to back the board . Many were back to defend it on Tuesday.

“Establishing the Housing Appeals Board is one of the top priorities of the BIA,” said David Juvet, who added that the workforce shortage is the top priority, as is “having to provide places for the workforce to live.”

But municipal officials contend that planning boards already follow the law and that the board is not only necessary but could be detrimental.

Phillip E. Wilson, a former member of the North Hampton Planning Board and the Rockingham Planning Commission, argued that a Housing Appeals Board would overrule local control. This would jeopardize “this remarkable diversity that results and persists from local planning boards proposing master plans uniquely suited to their community and cultures.” That diversity is why so many people visit this state, he said.

The appeals board, he said, would “homogenize” the state, making it more like New Jersey, causing tourism to diminish.

“Ultimately it will be harmful for our economy, which is supposed to be our rationale” for the board.

When asked by Sen. Harold French, R-Franklin, if an individual “is unfairly denied, why not give them a cheaper way to challenge the decision?” Wilson said that he “doesn’t remember a single time” that his planning board had a decision overturned by the court. “It just doesn’t happen,” he said.

Housing advocates disagreed.

Elliott Berry, who directs New Hampshire Legal Assistance’s housing project, said it happened in the three times he challenged it, and they delayed the process for years with a cost of over six figures.

Elissa Margolin, director of Housing Action NH, cited a legislative study committee report that said that 75 to 100 cases a year go to court, including use in addition to housing matters.

The problem, she said, “is most of our members don’t even appeal. They resist because they have to work with communities, even if they feel it’s unfair,” Margolin said.

Instead, they “negotiate” and agree to planning board conditions, said Ben Frost, managing director of public affairs at the New Hampshire Housing Finance Authority.

“They want to get to yes, so the result is fewer homes and more expensive homes” and even fewer apartment complexes, he said. This contributes to a vacancy rate that is currently, “shockingly,” at less than 1%.

On the Seacoast, where three of the four municipal officials were calling for the Housing Appeals Board repeal, it was down to less than a third of a percent, contributing to up to yearlong backups in emergency shelters, he said.

The New Hampshire Municipal Association stayed neutral when the bill passed, mainly because backers crafted a bill that did “not usurp local authority,” said its lobbyist, Cordell Johnston.

Under current law, the board is appointed by the Superior court, follows state law, and includes a lawyer, an engineer, a surveyor and others who are familiar with housing regulations.

But now the NHMA now backs repeal because “we have never heard so much reaction to bill, said Johnston, adding that he believes it is an “overreaction.”

But he also does believe the board will cause a hardship, since it will mean traveling to Concord, rather than dealing with it in a local court. He also suggested that it would be better to speed up the court process, perhaps by adding a judge and creating a special land use docket.

One of the two bills – Senate Bill 721 – does something similar: It repeals the board, but gives courts 90 days to make a decision following an appeal. SB 735 just scraps the appeals board.

Most of the Judiciary Committee members’ questions indicated that committee members had problems with the repeal bill, perhaps Sen. Sharon Carson, R-Londonderry most of all.

“It’s not about taking away the right of the planning board,” she said. “It’s trying to keep people from having to go to court. It’s an attempt to mediate.”