SB 306-FN - AS AMENDED BY THE SENATE
SENATE BILL 306-FN
SPONSORS: Sen. Giuda, Dist 2; Sen. Rosenwald, Dist 13; Sen. Bradley, Dist 3; Sen. Carson, Dist 14; Sen. Feltes, Dist 15; Sen. Fuller Clark, Dist 21; Sen. Watters, Dist 4; Rep. Butler, Carr. 7; Rep. Wallner, Merr. 10; Rep. Hinch, Hills. 21; Rep. Porter, Hills. 1
COMMITTEE: Election Law and Municipal Affairs
This bill establishes a housing appeals board to hear appeals of decisions of municipal boards, committees, and commissions regarding questions of housing and housing development. The bill makes an appropriation to the housing appeals board for the administration of the board's duties.
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Explanation: Matter added to current law appears in bold italics.
Matter removed from current law appears [in brackets and struckthrough.]
Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.
03/14/2019 1041s 19-1047
STATE OF NEW HAMPSHIRE
In the Year of Our Lord Two Thousand Nineteen
Be it Enacted by the Senate and House of Representatives in General Court convened:
1 Findings. The general court declares that:
I. An adequate supply of housing that is affordable to a range of incomes is essential to New Hampshire’s economic and community development goals.
II. Access to an efficient and inexpensive legal appeals process is fundamental to protecting private property rights against unreasonable governmental regulation and processes.
III. Individual homeowners who are denied local permits for additions or other simple modifications to their homes often abandon their legal right to appeal because of the time and expense involved in a superior court appeal.
IV. Abutters and other parties with standing to appeal local land use decisions on housing developments often abandon their legal right to appeal because of the costs associated with court appeals.
V. There are several factors that inhibit builders’ ability to meet the demand for new housing in New Hampshire. Significant among these factors are local land use regulations and board practices that can arbitrarily thwart development or impose costly delays. These powers are delegated to municipalities by the state, and must be used in a manner that is consistent with state law.
VI. Builders may appeal local land use decisions to the superior court, but such appeals are expensive and time consuming, often leading builders to either abandon their appeals or completely avoid seeking development permits.
VII. The cost of litigating such matters in court is significant, and by establishing an alternative process, but without eliminating the option of court appeals, will help to reduce costs of litigation for all parties.
VIII. It is appropriate and necessary to establish an alternative track for review of local decisions on housing and housing development without diminishing anyone’s existing legal right to pursue a remedy in superior court and without affecting local control or changing the legal standards by which local decisions are adjudicated.
HOUSING APPEALS BOARD
679:1 Board Established. There is hereby established a housing appeals board, hereinafter referred to as the board, which shall be composed of 3 members who shall individually and collectively be learned and experienced in questions of land use law or housing development or both. At least one member shall be an attorney licensed to practice law in the state of New Hampshire, and at least one member shall be either a professional engineer or land surveyor. The members of the board shall be full-time employees and shall not engage in any other employment, appointments, or duties during their terms that is in conflict with their duties as members of the board.
679:2 Appointment; Term; Chair. The members of the board shall be appointed by the supreme court and commissioned by the governor for a term of 5 years and until their successors are appointed and qualified; provided, however, that any vacancy on the board shall be filled for the unexpired term. The initial members of the board shall serve staggered terms of 3, 4, and 5 years. The supreme court shall designate one member as chair to serve in that capacity for the duration of his or her term.
679:3 Removal. Any member may be removed by the same authority for inefficiency, neglect of duty, or malfeasance in office; but, before removal, the member shall be furnished with a copy of the charges and have an opportunity to be heard in defense.
679:4 Compensation. Each member of the board shall receive the annual salary prescribed by RSA 94:1-a and reasonable expenses, including transportation, subject to the approval of the governor and council.
679:5 Authority; Duties.
I. It shall be the duty of the board and it shall have power and authority to hear and affirm, reverse, or modify, in whole or in part, appeals of final decisions of municipal boards, committees, and commissions regarding questions of housing and housing development. This includes, but is not limited to:
(a) Planning board decisions on subdivisions or site plans.
(b) Board of adjustment decisions on variances, special exceptions, administrative appeals, and ordinance administration.
(c) The use of innovative land use controls.
(d) Growth management controls and interim growth management controls.
(e) Decisions of historic district commissions, heritage commissions, and conservation commissions.
(f) Other municipal permits and fees applicable to housing and housing developments.
(g) Matters subject to the board’s authority may include mixed-use combinations of residential and nonresidential uses. Such different uses may occur on separate properties, provided such properties are all part of a common scheme of development.
II. In exercising its authority under this chapter, the board shall have the power to award all remedies available to the superior courts in similar cases, including permission to develop the proposed housing.
III. Relative to RSA 674:58 through RSA 674:61, the board shall have the power and authority to hear and determine appeals of decisions of local land use boards regarding proposals for workforce housing, including but not limited to whether the municipality’s land use ordinances and regulations provide a reasonable and realistic opportunity for the development of workforce housing; whether the local land use board has imposed conditions of approval that render the proposal economically unviable; and whether a denial by a local land use board was unreasonable or unlawful.
IV. After local remedies have been exhausted, appeals may be brought before the board by an applicant to the municipal board, committee, or commission, or by any other aggrieved or injured party who can demonstrate legal standing to appeal pursuant to RSA 677:4 or RSA 677:15. The municipality shall be a party to the action. If the applicant is not the party initiating the action before the board, then the applicant shall automatically be an intervenor. The board shall grant intervenor status to abutters and to any other aggrieved or injured party who can demonstrate legal standing to appeal pursuant to RSA 677:4 or RSA 677:15.
679:6 Timing of Appeals and Board Proceedings.
I. Appeals shall be filed with the board within 30 days of the final decision of a municipal board, committee, or commission. At the same time an appeal is filed with the board, the applicant shall notify the municipal board, committee, or commission of such appeal.
II. The municipal board, committee, or commission shall within 30 days of receipt of such notice submit to the board a certified record of its proceedings on the matter subject to the appeal.
III. The board shall hold a hearing on the merits within 90 days of its receipt of a notice of appeal.
IV. The board shall make a decision on an appeal within 60 days after conducting a hearing on the merits.
679:7 Jurisdiction; Court Appeals.
I. In matters within its authority the board shall have concurrent, appellate jurisdiction with the superior court. An election by any party to bring an action before the board shall be deemed a waiver of any right to bring an action in the superior court, but shall not abrogate any party’s right to appeal decisions of the board to the supreme court; as such, the board shall retain jurisdiction of any matter originally brought before it. At any time during an appeal to the board, if the board determines that it does not have jurisdiction to hear the appeal, the appellant shall have 30 days to file an appeal with the superior court.
II. In an appeal of a local decision on housing or housing development, any claim that is within the board’s authority under RSA 679:5 and that has previously been or is subsequently included in an appeal in superior court by another party to the decision or by any other aggrieved or injured party who can demonstrate legal standing to appeal pursuant to RSA 677:4 or RSA 677:15 shall automatically be stayed by the court to provide the party with standing the opportunity to intervene in the matter before the board. If intervenor status is granted, the stay of the court action regarding those claims shall continue during the pendency of the appeal to the board. After the board has decided the appeal, the court shall dismiss the matter before it to the extent the matter has been resolved by the board. Any claim included in an appeal to superior court that is not within the board’s authority shall not be subject to automatic stay by the court.
679:8 Quorum; Disqualification; Temporary Members.
I. In all matters a majority of the board shall constitute a quorum to transact business.
II. No member of the board shall represent a party or testify as an expert witness or render any professional service for any party or interest before the board, and any member having an interest in the subject matter shall be disqualified to act therein.
III. If, in the event of a disqualification or temporary disability of a member or members of the board, it shall become necessary to do so, the board, subject to the approval of the supreme court, shall appoint such number of temporary board members as shall be necessary to meet the requirements herein imposed. Such temporary board members shall serve with respect to such matter until the same has been fully disposed of before the board.
IV. Temporary board members shall have the same qualifications as regular board members in whose place they are acting.
V. A temporary board member shall be compensated at the rate of $75 for each day devoted to the work of the board and shall be reimbursed the necessary and reasonable expenses incurred by him or her in the performance of his or her duties.
VI. In the event of a vacancy on the board, the appellant may elect to continue the proceedings while awaiting the appointment of a successor board member.
679:9 Hearing Procedure; Standard of Review.
I. Appeals to the board shall be consistent with appeals to the superior court pursuant to RSA 677:4 through RSA 677:16. Appeals shall be on the certified record, and except in such cases as justice may warrant, in the sole discretion of the board, no additional evidence will be introduced. Consistent with the contested case provisions of RSA 541-A, the rules of evidence shall not strictly apply. In addition to the provisions of RSA 91-A, the board shall record the proceedings of any hearing before it and shall make such recording available to the public for inspection and recording from the date of the hearing to a date which is 15 working days after the board has made a final decision on the matter which is the subject of the hearing, or, if an appeal is made from such decision, the date upon which the matter has been finally adjudicated, whichever date is later.
II. The board shall not reverse or modify a decision except for errors of law or if the board is persuaded by the balance of probabilities, on the evidence before it, that said decision is unreasonable.
679:10 Representation by Nonattorneys. Nonattorneys, including professional engineers, architects, and land surveyors, may represent any party before the board. Nothing in this section shall prevent the board from denying representation by any individual it deems to be improper, inappropriate, or unable to adequately represent the interests of the applicant to the municipal board, committee, or commission.
679:11 Board Meetings. The board's deliberative processes in adjudicatory proceedings held pursuant to RSA 541-A shall be exempt from the public meeting and notice provisions of RSA 91-A. Decisions and orders in adjudicatory proceedings shall be publicly available, but only after they have been reduced to writing, signed by a quorum of the board, and served upon the parties, and shall set forth the board's rulings of law and findings of fact in support of its decisions. Discussions and actions by the board concerning procedural, administrative, legal, and internal matters shall be exempt from the meeting and notice provisions of RSA 91-A:2.
679:12 Rules and Regulations. The board may adopt rules under RSA 541-A necessary for carrying out its functions including but not limited to rules of procedure to be followed in hearings conducted by it not inconsistent with the provisions of this chapter.
679:13 Administration of Oaths, Subpoenas, Etc.; Fees. The board shall have authority to administer oaths and to compel the attendance of witnesses to proceedings before it. The board shall have the power to subpoena and subpoena duces tecum. Witnesses compelled to appear shall be paid the same fee and mileage that are paid to witnesses in the superior court of the state. A subpoena or subpoena duces tecum of the board may be served by any person designated in the subpoena or subpoena duces tecum to serve it. Any testimony given by a person duly sworn shall be subject to the pains and penalties of perjury. All applications or petitions to the board for which no filing fee has been otherwise specified by statute shall be accompanied by a $250 filing fee. Costs and attorney's fees may be taxed as in the superior court.
679:14 Notice. The board shall serve notice in writing of the time, place, and cause of any hearing upon all parties at least 20 days prior to the date of the hearing.
679:15 Appeal. Decisions of the board may be appealed to the supreme court by any party in accordance with the provisions of RSA 541 as from time to time amended.
679:16 Enforcement of Decisions. After a decision of the board becomes final, the board shall, at the request of any party, file a certified abstract thereof in the Merrimack county superior court. The clerk of said court shall forthwith enter judgment thereon and such judgment may be enforced as with any final judgment of the superior court.
679:17 Staff. The board shall have such clerical, administrative, and technical staff as may be necessary within the limits of the appropriation made therefor.
679:18 Office. The board shall be provided with an office in Concord in which its records, documents, and books shall be kept, and with a suitable room in which it may hold hearings.
679:19 Neglect to Comply With Board's Orders. Neglect or failure on the part of any municipality to comply with such orders shall be deemed willful neglect of duty, and it shall be subject to the penalties and damages provided by law in such cases.
DD housing appeals board member
DD housing appeals board chair
4 Appropriation; Housing Appeals Board. The sums of $400,000 for the fiscal year ending June 30, 2020 and $400,000 for the fiscal year ending June 30, 2021 are hereby appropriated to the housing appeals board established pursuant to RSA 679 for the proper administration of said chapter. Said sums shall not lapse until June 30, 2021. The governor is authorized to draw a warrant for said sums out of any money in the treasury not otherwise appropriated.
SB 306-FN- FISCAL NOTE
AS AMENDED BY THE SENATE (AMENDMENTS #2019-0858s and #2019-1041s)
FISCAL IMPACT: [ X ] State [ ] County [ X ] Local [ ] None
Estimated Increase / (Decrease)
[ X ] General [ ] Education [ ] Highway [ ] Other
This bill establishes a 3 member Housing Appeals Board with authority to hear and affirm, reverse, or modify appeals of final decisions of municipal boards, committees and commissions regarding questions of housing and housing development. The Board shall have concurrent, appellate jurisdiction with the Superior Court and may adopt rules under RSA 541-A necessary for carrying out its functions. The Board shall charge a $250 filing fee when no filing fee has been otherwise specified by statute. Members of the Board shall be appointed by the Supreme Court and commissioned by the Governor for a term of 5 years and shall be full time unclassified employees, designated as salary grade DD (salary and benefits for each member estimated at $98,000 in FY 2020 and $107,000 in FY 2021). At least one board member shall be an attorney licensed to practice law in the state and at least one member shall be either a professional engineer or land surveyor. The Board is directed to hire clerical, administrative and technical staff within the limits of the appropriation made therefor. The Board shall be provided with an office in Concord. The bill appropriates $400,000 for the fiscal year ending June 30, 2020 and $400,000 for the fiscal year ending June 30, 2021 for the proper administration of the chapter. The appropriations shall not lapse until June 30, 2021. The governor is authorized to draw a warrant for said sums out of any money in the treasury not otherwise appropriated.
The New Hampshire Municipal Association states appellants may choose to appeal a land use board decision to either the appeals board or Superior Court. The appeals board would have an expedited process and would not be strictly bound by rules of evidence. Appeals to this board may be less costly for a municipality to defend than an appeal to Superior Court. However, the availability of this option may result in an increased number of appeals, thereby increasing municipal costs. The association is unable to estimate the cost associated with such appeals or the number of appeals, therefore the effect on municipal expenditures is indeterminable. There should be no effect on municipal revenues.
Though the Judicial Branch has not provided a fiscal note worksheet for this bill, the Branch did provide a worksheet to a similar bill (SB 557) in the 2018 legislative session. The Branch indicated there is a potential savings to the Judicial Branch due to a possible reduction in appeals filed in Superior Court. However, there is a potential cost to the Supreme Court to recruit, interview and appoint members of the Housing Appeals Board. The Judicial Branch indicates that appeals from decisions of the Housing Appeals Board would be to the Supreme Court pursuant to RSA 541 and additional costs may be incurred due to these additional appeals. There is no way to estimate the number of appeals that may be accepted for full appellate review, limited review or appeals that may be declined by the Supreme Court.
The Board of Tax and Land Appeals (BTLA) indicated there is no fiscal impact to the BTLA because the bill provides no appellate authority to the BTLA.
New Hampshire Municipal Association, Judicial Branch and Board of Tax and Land Appeals
|Jan. 3, 2019||Introduced 01/03/2019 and Referred to Election Law and Municipal Affairs; SJ 4|
|Feb. 6, 2019||Hearing: 02/06/2019, Room 102, LOB, 10:15 am; SC 9|
|March 14, 2019||Committee Report: Ought to Pass with Amendment # 2019-0858s, 03/14/2019; SC 13|
|March 14, 2019||Committee Amendment # 2019-0858s, AA, VV; 03/14/2019; SJ 8|
|March 14, 2019||Sen. Giuda Floor Amendment # 2019-1041s, AA, VV; 03/14/2019; SJ 8|
|March 14, 2019||Without Objection, Sen. Cavanaugh Moved the Question, MA; 03/14/2019; SJ 8|
|March 14, 2019||Ought to Pass with Amendments 2019-0858s, and 2019-1041s, MA, VV; Refer to Finance Rule 4-5; 03/14/2019; SJ 8|
|March 28, 2019||Committee Report: Ought to Pass, 03/28/2019; SC 15|
|March 27, 2019||Committee Report: Ought to Pass, 03/27/2019; SC 15|
|Feb. 6, 2019||Senate||Hearing|
|March 14, 2019||Senate||Floor Vote|
|March 28, 2019||Senate||Floor Vote|
|March 27, 2019||Senate||Floor Vote|