Posted by: Patricia Salkin | July 20, 2008

New Hampshire Enacts New Law Requiring Workforce Housing, Providing for Accelerated Review and a Builder’s Remedy

Seventeen years ago, the New Hampshire Supreme Court issued a resounding decision in favor of affordable housing.  In the case Britton v. Town of Chester, 134 N.H. 434 (1991) the Court determined that the state’s planning and zoning statutes called for every municipality to provide a reasonable and realistic opportunity for the development of housing that is affordable to low and moderate income households, and particularly for the development of multi-family structures.  However, as has been common in other states, municipalities did not fully heed the Court’s call for action on affordable housing, and the State Legislature stepped in to mandate change.

 

This year the New Hampshire Legislature codified Britton, enacting a law that requires all municipalities to provide reasonable and realistic opportunities for the development of workforce housing, including rental housing.  To determine if such opportunities exist, the collective impact of all local land use regulations must be considered, and workforce housing of some type must be allowed in a majority of land area where residential uses are permitted (but not necessarily multi-family in a majority of such areas).  Recognizing that some municipalities have already done what is necessary under this law, the existing housing stock of a community is to be accounted for to determine if a municipality is providing its “fair share” of current and reasonably foreseeable regional need for workforce housing.  Importantly, reasonable restrictions may still be imposed for environmental protection, water supply, sanitary disposal, traffic safety, and fire and life safety protection.

 

This new law also significantly mitigates the cost of litigation by providing an accelerated appeals mechanism.  If a developer proposes to create workforce housing that meets the statutes definitions and requirements and the local board reviewing the proposal either denies the application or imposes conditions on it that would have an unreasonable financial burden, the developer can petition the superior court for review, and the court must conduct a hearing on the merits within six months.  As a means of addressing exclusionary municipal land use regulations, the court will be able to order the “builder’s remedy,” allowing the developer to proceed without further local review in situations that call for such an award. 

 

The law also provides a series of definitions, including ones for “affordability” (30% cost burden), “workforce housing” (affordable for renters at 60% area median income or owners at 100% area median income), multi-family housing (5 or more units per structure), and “reasonable and realistic opportunities” (addressing the economic viability of a proposal). 

 

The law takes effect on July 1, 2009.

  

Chapter 299, Laws of 2008

 

The text of the new law is available at: http://www.gencourt.state.nh.us/legislation/2008/SB0342.html

 

Special thanks to Ben Frost, the New Hampshire Legislative Liaison for the APA Northern New England Chapter for providing this information. A complete listing of all of the planning related bills in the New Hampshire Legislature this session, along with links to the legislation and an indication of their status is available at:

http://www.htosecure.org/LGCWebSite/NHPA/legislation/2008_Pending_Legislation.pdf   


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