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The Housing Appeals Board: A New Venue to Appeal Land Use Decisions

In 2019, the New Hampshire Legislature established the Housing Appeals Board (“the HAB”), to hear appeals related to decisions of municipal “land use boards, committees, and commissions regarding questions of housing and housing developments.”  This authority apparently includes everything from planning board decisions on subdivisions and site plans, to ZBA decisions in variances and special exception, to decisions of historic district, heritage and conservations commissions, amongst others.  The law is set to go into effect on July 1, 2020; however efforts have been introduced in 2020 to repeal the HAB – although bills from the 2020 legislative session have been in limbo due to the COVID-19 pandemic.  Much remains to be seen as to how this new board will change the legal landscape of land use law in New Hampshire.

The HAB’s authority is, as its name suggests, limited to cases involving housing and does not cover all land use matters, such as strictly commercial development.  The HAB’s jurisdiction does cover mixed-use developments, where there are commercial and residential aspects.  The HAB’s jurisdiction also extends to disputes of whether municipalities are complying with their obligations to provide “reasonable and realistic opportunities for the development of workforce hosing.”

The HAB was established as an alternative to the Superior Court.  Sponsors of the bill that created the HAB expressed the intent of alleviating the costs and expense associated with litigating land use appeals in Superior Court. The HAB will be made up three members, all of whom must be knowledgeable and experienced in matters of land use law or housing developments, one of whom must be attorney licensed to practice law in New Hampshire, and another who must be a professional engineer or land surveyor.

The establishment of the HAB does not change the timing to file an appeal of a land use decision – thirty days after the final decision of the municipal board.  Applicants should remember, however, that decisions of planning boards, building inspectors, etc. involving interpretations or applications of a zoning ordinance are appealable first to the zoning board of adjustment before appealing to the HAB or the Superior Court, and decisions of the zoning board of adjustment are subject to a “motion for rehearing” before appeals can be taken to those bodies.  Also, like appeals in Superior Court, land use appeals at the HAB will be based on the certified record, unless the HAB allows for the introduction of new evidence.

The HAB’s authority to reverse the decision of a municipal land use board is limited to “errors of law” or if the HAB is “persuaded by a balance of probabilities, on the evidence before it,” that the land use decision is unreasonable.  This standard appears to be different from that used by the Superior Court, although the legislative process gives no indication that the intent was to alter the existing standard that land use boards’ findings of fact will be considered “prima facie lawful and reasonable”.  Accordingly, time will tell as to whether the HAB will be required to defer to local boards in evaluating evidence as courts have done for decades.

For more information about the HAB or land use and development law, feel free to contact me or the other attorneys at Donahue, Tucker, & Ciandella at (603)778-0686.