Published in the Union Leader (6/19/2017)
Q: My family wants to construct an in-law apartment for my aging mother, but our town’s zoning bylaws have not been updated to reflect New Hampshire’s new law allowing accessory dwelling units. How can we begin construction if the zoning bylaws do not mirror the state’s new statute?
A: It is not uncommon for local zoning regulations to lag behind continually evolving state land use laws. Here, New Hampshire’s new accessory dwelling unit law should provide basic guidance for permitting your in-law apartment, despite your town’s outdated ordinance.
As of June 1, the statute is aimed at combating New Hampshire’s housing shortage by allowing residential property owners to add at least one accessory dwelling unit to their existing home. Regardless of the current state of your town ordinance, there are a few key points to consider on your path to quickly constructing a legal in-law apartment in New Hampshire.
First, your local ordinance may already provide a path to permitting that works for your specific construction project. Consider that even if your local ordinance contains newly invalidated provisions resulting from the new state law, the invalid provisions may not actually hinder your project, and that following existing directives may be the fastest way to your desired result. If this is the case, follow the permitting directives of the zoning bylaw to effect the most expedited path to permitting and construction.
Second, if your local ordinance addresses in-law apartments, but contains a newly illegal limitation — such as requiring occupants to be related, limiting the number of bedrooms, requiring separate water and sewer systems, limiting units to less than 750 square feet, and mandating that at least one door remain unlocked between units — then consider following the permitting directives of the existing ordinance while submitting a waiver related to the invalid provision.
Third, if your local ordinance fails to address in-law apartments or accessory dwelling units, then under the new law, your in-law apartment is permitted — by right — on approval of a building permit application. If this is the case, file a building permit application and follow the local building permit procedure.
Finally, realize that change can be challenging and that you may encounter municipal resistance to your project. In this case, consider hiring a land use attorney to help negotiate the municipal process and move your project forward.
Josh Lanzetta can be reached at [email protected].
Know the Law is a bi-weekly column sponsored by McLane Middleton, Professional Association. We invite your questions of business law. Questions and ideas for future columns should be addressed to: McLane Middleton, 900 Elm St., Manchester, NH 03101 or emailed to [email protected]. Know the Law provides general legal information, not legal advice. We recommend that you consult a lawyer for guidance specific to your particular situation.