Roxbury notches victory before NH Supreme Court

Unanimous NH Supreme Court reversed ruling in case involving plans for a three-lot subdivision along Middletown Road

The tiny town of Roxbury took on the NH Housing Appeals Board and won.

In a ruling released Tuesday, Nov. 14, a unanimous NH Supreme Court reversed a ruling by the board in a case involving plans for a three-lot subdivision along Middletown Road.

The Roxbury Planning Board decided not to allow the subdivision, finding the road is virtually impassable at times during mud and snow season.

In September 2021, Auburn-based Greatwoods Unity Forests LLC appealed this decision to the state Housing Appeals Board, which ultimately found in favor of the developer. The town appealed to the state Supreme Court. 

Mark Funk, a selectman in the town of about 225 people, expressed pleasure with the NH Supreme Court ruling.

“That’s really an amazing win I think for a small town battling the state,” he said. “It takes a lot of guts for a small town to do this. You know, it’s expensive. A lot of people in town were not happy with us spending that money, but I think that’s worthwhile.”

He said earlier this year that the town had spent more than $50,000 on the case. 

Funk said he knows of no way to recover those costs. 

The court said in its ruling that the state panel erroneously substituted its own judgment for that of the local board — three members of which live on Middletown Road. The planning board also relied on testimony from Fire Chief Tim Mason and others about problems with the road.

The Housing Appeals Board visited the road on Nov. 30, 2021, and found the surface in good condition, while noting a portion is unpaved. It later ruled the planning board’s denial of the subdivision application was unreasonable.

Attorney Patricia Panciocco, who represented Greatwoods Unity Forests, declined to comment Tuesday about the NH Supreme Court’s decision. Greatwoods did not immediately return a call for comment.

Amy Manzelli, an attorney representing the town in the case, said in an interview Tuesday that she was gratified with the decision.

“The Housing Appeals Board substituted their own judgment based on that one-time, short, fair-weather site visit in lieu of the expert evidence,” said Manzelli, of BCM Environmental & Land Law in Concord.

The three-member board was established by the NH Legislature in 2020 as a streamlined way to appeal local rulings about housing developments. People can also appeal through Superior Court. 

Some lawmakers were concerned that local boards sometimes succumb to loud neighborhood opposition and kill housing projects that should be allowed under land use regulations.

Some have criticized the Housing Appeals Board as being slanted to developers, but Manzelli said she has not seen this.

“I think the process at the Housing Appeals Board is a good one,” she said. “Anytime there is a new appellate agency, it is a typical process for their jurisprudence to grow and evolve and this case is part of that process.”

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