For the first time, the state’s Housing Appeals Board has rejected a local planning board decision, overturning the January rejection of a four-lot subdivision in Francestown.
The three-person board was created by the legislature in 2020 to speed up appeals of decisions by town or city planning boards, which previously could be appealed only to Superior Court.
This ruling to reject a local decision is the first of its kind to make it through the Housing Appeal Board. It has held or scheduled hearings for appeals in six towns so far, including Pembroke and Chichester.
The dispute concerns the Francestown Planning Board’s decision in January to deny a four-lot subdivision. As reported in the Monadnock Ledger-Transcript, the Housing Appeals Board said the ruling didn’t conform to the town’s subdivision regulations and was inconsistent with the intent and spirit of zoning ordinances meant to protect the view shed and maintain the character of the neighborhood.
The board ruled in a May 7 order that the Planning Board hadn’t cited any objective zoning violations in their denial and thus made an “unreasonable” decision, the Ledger-Transcript reported. “The Planning Board relied on opinions and concerns which were subjective, legally undefined, or unreasonable in denying this subdivision.”
In most towns, planning boards consist of volunteer residents who are either appointed or elected.
As a reflection of the detail on which planning board decisions can often turn, there was debate about whether tree cutting in late 2019 could be considered as part of maintaining “viewshed buffer,” and whether the the “purpose” section of the subdivision regulations and the “preamble” section of the zoning ordinance are “specific regulatory provisions” or there only to “provide guidance to the Planning Board.”
Francestown’s Planning Board and Select Board have 30 days from the announcement to appeal the decision, Select Board Chair Henry Kunhardt told the Ledger-Transcript.
Kunhardt told the newspaper that although it’s too soon to identify any trends in from the appeals board, this process has been a lesson in its new powers. Now that there’s an easier appeals process, planning boards must make sure they have solid reasons to reject a plan, the paper quoted Kunhardt as saying, which might lead Francestown to consider ways to improve zoning and subdivision regulations.
The Housing Appeals Board, appointed by the governor and Executive Council, is roughly equivalent to the Board of Land and Tax Appeals, which is an alternative to Superior Court for appeals of property assessments and eminent domain cases. It was established last year and its purview was spelled out in RSA 679. It can rule on decisions about variances, special exceptions, limits within historic districts, and “whether ordinances and regulations provide a reasonable and realistic opportunity for the development of workforce housing.”
Appeals of planning and zoning decisions do not have to be taken to the Housing Appeal Board; they can still go to Superior Court, although that process will take longer and might cost more in legal fees.
The Housing Appeals Board is limited to saying whether a decision by the local body should stand or whether it should be reversed or reconsidered.
Its members are Gregory Michael, an attorney and former circuit court judge, and Elizabeth Fischer, a Dover real estate agent. A third member has yet to be named.
