Planning Board Decision Reversed Where Town Planning Board Departed from Past Practice of Approving Similar Age-Restricted Condominium Projects Subject to Condition that the Condominium Documents Comply with Federal Housing Law on Age-Restricted Housing

This post was authored by Christina Seid, Jacob D. Fuchsberg Touro Law Center

Migrela Realty Trust II and GAM Realty Trust (collectively, “Respondents”) sought to obtain approvals from the Town of Amhurst (the “Town”) for a new 54-unit mixed housing for older persons and unrestricted housing development. Respondents initially filed an application for a conditional use permit with the Town Planning Board, which approved the conditional use permit (the “CUP”) under the Town’s Integrated Innovated Housing Ordinance (IIHO) with a total “increased project density” of up to 54 units. At some point after the CUP was issued, the IIHO was repealed by the Town. Thereafter, Respondents filed an application for subdivision and site plan review with the Town Planning Board. During this review process, the project was scaled down to 49 units, with 14 of those units being approved for 65-and-older restricted use consistent with the current zoning code, and the remaining 35 units would have no age restriction. In doing so, the Town Planning Board raised the following issues: (i) conflicts between the proposed project and federal law as it relates to the fair housing requirements and the age restricted housing portion of the project; (ii) concern as to how the age-restriction would be applied under the proposed condominium proposal; and (iii) concern that the proposed design is inconsistent with the rural aesthetic the Town values in its zoning code and does not protect and preserve that aesthetic.

The Respondents appealed the Town Planning Board’s decision to the New Hampshire Housing Appeals Board (the “HAB”), which was created by the New Hampshire Legislature in 2020 to provide a swifter and more economically feasible alternative to litigation for residents to appeal local rulings about housing developments. Upon review, the HAB noted that the Respondents had been granted a CUP for a project that included “an elderly component” and that the rural aesthetic concerns raised by the Town Planning Board were previously addressed during the CUP process. The HAB found that the Board’s denial of subdivision/site plan approval on the basis of “age concerns [was]clearly unreasonable, since the IIHO contemplated higher density, age-restricted housing.” Further, the HAB acknowledged that “compliance with state and federal elderly housing rules” remained an issue, and determined that “this must be a plan condition should the project be approved.”

Accordingly, the HAB vacated the Town Planning Board’s decision(s) on the subdivision/site plan application and remanded the matter back to the Town Planning Board with instructions to hold a collaborative discussion on the statue and federal age-restricted housing rules as they relate to those provisions contained in the condominium documents governing the mixed-age housing. The HAB also ordered that the Town Planning Board render a new decision, where (i) any denial is based upon legitimate unsatisfied Town Planning Board requests, and (ii) any approval includes customary and reasonable approval conditions. Thereafter, the Town Planning Board moved for the HAB to reconsider its decision, which the HAB denied in a second order. The Town then appealed both of HAB’s decisions to the New Hampshire Supreme Court (the “Court”).

In affirming the HAB’s decision, the Court found that the Town Planning Board’s original denial based upon the issue of federal law age-restricted housing was inconsistent with the Town Planning Board’s prior practice of conditioning approvals for similar housing projects on Town Counsel review of the condominium documents to ensure compliance with the federal law age-restrictions on housing. In rendering its decision, the Court stated: “[w]e cannot say that it was unjust or unreasonable for the HAB to conclude that the [Town Planning] Board’s failure to follow this customary practice, and instead, to deny the application based on its own concerns about legal compliance, was unreasonable.”  The Court also affirmed the decision of the HAB that the Town Planning Boards concerns relating to the rural aesthetic of the project’s design were previously addressed during the CUP process.

Appeal of Town of Amherst, 175 N.H. 575 294 A.3d 1122 (NH 2023)