Published in NH Bar News (5/20/2020)
Significant amendments to encourage workforce and residential housing development are working their way through the NH House. HB 1632, as written as of March 11, 2020 seeks to expand financial incentives under RSA 162-K to workforce housing development, and is currently in the House Ways and Means Committee. It is offered in connection with HB 1629, which has the more imminent status of “Ought to Pass with Amendment.” While HB 1629 is held out as a bill “Relative to training and procedures for zoning and planning boards,” a closer look reveals that the Bill’s provisions reach much farther.
Indeed, for new planning or zoning board members only, the Bill now mandates the formerly optional Office of Strategic Initiatives (“OSI”) training for municipal boards described in RSA 673:3-a. The Bill also tasks the OSI with developing a test for new members. But many planning and zoning boards do not have high turnover, so the odds of having a voting majority of new members is usually quite low. As such, the Bill’s stated purpose of “training”, by applying it only to new board members, is likely to take years to be fully effective in many towns.
One of the Bill’s far-reaching amendments applies to RSA 674:21, II, the so-called Innovative Land Use Controls statute. The Bill seeks to mandate that any density, lot size, or other dimensional incentives afforded to “housing for older persons” shall automatically be afforded and “deemed applicable to all types of housing development.” Note that this far-reaching provision applies not only to workforce housing, but to “all types of housing.” In a time when residential development is the most profitable type in our state, this type of amendment could have significant implications for municipalities. It may be that, if the legislature extends these benefits or relaxed standards to housing across the board, some municipalities will not have the time or means to provide the additional infrastructure that increased housing requires. “Housing for older persons” typically has far less of an impact on municipal resources (schools, first responders, sanitation, etc.) than typical residential development. While housing can be built in mere months, the municipal infrastructure usually takes much longer to implement, assuming a municipality can figure out how to pay for it.
Another provision of the Bill amends RSA 674:21, IV(a) by allowing Planning Boards the ability to waive regulations in municipal “Inclusionary Zoning” ordinances if the same would make a low or moderate income housing development less profitable. The intent is to support affordable housing by permitting waiver of economically cumbersome provisions. But as written, the Bill may have the effect of creating the possibility of appealing a denial that is otherwise validly grounded in noncompliance with municipal law, simply because compliance negatively affects profitability.
Perhaps the most broad-reaching effects of the Bill may arise from the proposed amendments to RSA 674:33 with respect to ZBA decisions, and proposed amendments to RSA 676:4 with respect to Planning Board decisions. It seems the proponents of the Bill took inspiration from our Commonwealth neighbor to the south in seeking to impose a 90 day deadline on ZBA decisions and tightening the Planning Board deadlines, along with an additional requirement for a written decision backing up any denial. Conversely though, the Bill contains no requirement for a written decision supporting an approval. The new deadlines reduce delays which often impose significant costs and unpredictability on developments. The written decision requirement adds transparency and accountability to decrease the likelihood of boards making arbitrary or capricious denials (or approvals). One potential problem, however, lies in the proposed amendments to RSA 676:4 with respect to Planning Board decisions. The Bill proposes a timeline of 30 days for the superior court to act on infractions of the above referenced planning board deadline, and requires the court to fast track the claim. These provisions lack the proverbial “or what” substance, likely because the legislature may be reluctant to step on judiciary toes.
Last, the Bill attempts to provide the Court with statutory authority to award attorneys’ fees to a prevailing party in any appeal on the matters described above, subject to the limitation that attorneys’ fees against a municipality would only be recoverable in instances of bad faith, gross negligence, or malice. This provision encourages transparency and accountability by providing a penalty for municipalities intentionally delaying decisions or denying approvals without good cause.
While the Bill may fail to recognize the impacts of forcing residential development on any given community, it does make significant advances in eliminating never-ending delays and arbitrary decisions. This effect alone can have a dramatic positive impact on all economic development in NH, be it commercial or residential.
Christopher Swiniarski is an attorney in the Real Estate and Corporate Departments at McLane Middleton, Professional Association. He can be reached at (603) 628-1322 or [email protected].