CONCORD — Legislation to create a state-level appeals board with the right to override land-use decisions by local zoning and planning boards appeared to be dead for this year, but has resurfaced as an amendment to the state budget.
Supporters of the measure, like Republican Sen. Bob Giuda of Warren, say the legislation is necessary to address a chronic shortage of affordable housing, made worse by zoning and planning boards that refuse to comply with a state law passed in 2015.
That law (RSA 674:59) requires communities to make reasonable accommodations for “workforce housing.” It was passed after years of protests from builders who claimed it was impossible to build affordable housing in many communities because of what they called “snob zoning,” such as requirements for large lot sizes, setbacks and actual bans against multi-family housing.
“We have a workforce housing law in this state that is not being implemented as intended at a time when we have a workforce crisis in our state,” said Giuda.
The law states that land-use and zoning ordinances in every city and town “shall provide reasonable and realistic opportunities for the development of workforce housing, including rental multi-family housing. In order to provide such opportunities, lot size and overall density requirements for workforce housing shall be reasonable.”
Developers who now feel they have been denied in violation of the law have no recourse but to appeal to Superior Court, which takes a lot of money and a lot of time. The three-member Housing Board of Appeals, established by SB 306, would be less costly and more expeditious.
All local remedies would have to be exhausted before an appeal could be brought before the board, which would then have 60 days to issue a decision after conducting a hearing. Either party unhappy with that decision could then appeal to the state Supreme Court.
The law cuts the Superior Court out of the process, and replaces it with the Housing Board of Appeals.
Opponents cry foul
Opponents like Jane Aitken of the Bedford Residents Association are crying foul, accusing lawmakers of trying to revive a bill that was killed in the House and passed but tabled in the Senate by bringing it into negotiations over the state budget.
“These overreaching provisions would basically nullify the vote of the townspeople — taxpayers who have given their boards direction for what should happen in their own towns,” according to Aitken.
It’s not uncommon for certain policy bills to be brought into the budget in a last-ditch attempt to get them signed into law.
“It happens all the time. It’s part of the process,” says Giuda. “The governor wants this bill; the Senate wants this bill; the employers want this bill. Everyone wants this bill except people who think ‘We should be able to keep those kind of people out of our town.’”
The Senate passed the bill 18-5 on March 28 and then immediately tabled it to be brought up in budget negotiations.
In the House, a similar bill, HB 104, was not so well-received. It came out of the House Judiciary Committee with an 18-0 recommendation against passage and died on the House floor in a voice vote.
“We really value the traditional core of our communities and the way we have protected our towns from becoming just another franchise-filled strip full of Walmarts and McDonalds,” said state Sen. Jeanne Dietsch, whose district includes towns like Bedford and Peterborough.
Dietsch pointed out that the status quo gives local land use boards a lot of negotiating power “because developers and Realtors don’t want to go to Superior Court,” so they are more likely to accommodate changes requested by those boards.
A 120-unit workforce housing project proposed near Bedford High School in July of last year is still awaiting a vote from the Planning Board, now scheduled for June 10.
Over the year of negotiations, it has been downsized from its original plan to 93 units, the proposed road configuration has been redesigned and the wetlands are no longer being affected. The initial plans for four, four-story buildings have been changed to three, three-story buildings.
Developers might not have agreed to those changes if they knew they could get a ruling in 60 days from a state board, rather than wading through a years-long court case, according to Dietsch.
“It seems crazy that the state could tell the town what kind of buildings they have to allow to be built,” said Aitken.
Sources close to the budget negotiations say it’s a long shot for this bill to survive the budgeting process, because the House would have to accede to the Senate position and will expect something in return.