2021-0570, Appeal of Town of Amherst

and unrestricted h ousing units. The Applicant previously had been granted a subdivision/sit e plan approval application with the Board for 54 age - restricted of documents in the record. In November 2020, the Applicant filed a The following facts were recited in the HAB’s orders or relate the contents

affirm. Migrela Realty Trust II and GAM R ealty Trust (collectively, the Applicant). We board (Board) of subdivision and site plan approval sought by the respondents, the Housing Appeals Board (HAB) vacating the denial by the Town’s planning HICKS, J. The petitioner, the Town of Amherst (Town), appeals orders of

orally), for the respondent s. Prunier & Prolman, P.A., of Nashua (Gerald R. Prunier on the brief and

on the brief and orally), for the petitioner. Cronin, Bisson & Zalinsky, P.C., of Manchester (Christopher B. Drescher

No. 2021 - 0570 Housing Appeals Board

page is: https://www.courts.nh.gov/our - courts/supreme - court a.m. on the morning of their release. The direct address of the court’s home reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 to press. Errors may be reported by email at the following address: editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concor d, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule p. 2 22 as 2

the HAB, which vacated the Board’s decision and remanded the matter to the required by Section 4.16A of the Zoning Ordinance.” The Applicant appealed to protect and preserve the rural aesthetic the Town has consistently valued, as is The second reason for the denial was that “t he proposed design does not

discrim ination). persons” from Federal Fair Housing Act provisions regarding familial status discrimination); 4 p. 2 2 U.S.C. § 3607(b) (2018) (exempting “housing for older from state fair housing statute’s provisions regarding familial status See, e.g., RSA 354 - A:15, VIII (2022) (exempting “housing for older persons”

be amended by the owners with a 67% vote. 3. Article V of the condominium documents allows those documents to

solely by over 6 p. 2 2 persons. federal law envisioned when it said over 62 units must be occupied of the unrestricted units. That is not consistent with what the 14 is a minority of the units. . .. They are at the will of the majority this instance because only 14 out of the 49 units are elderly housing. separation. That does not e xist here. This is a particular concern in whether that be a separate condominium association, some type of units th ere must be some separation, whether that be physical, are going to be age restricted units mixed with non - age restricted for applying the law and must understan d it and interpret it. If there requirements, the Planning Board in the first instance is responsible housing and for the unrestricted housing. While these are federal 2. T here is a single condominium association for both the senior

household be 6 p. 2 2 or older. . . . units be 62 or older. It requires only that one member of that 1. The application does not require that all residents of the age restricted

in apparent reference to fair housing requirements, the denial stated: perceived conflicts between the proposed project and federa l law. Specifically, reasons that can be grouped into two general categories. First, the Board In April p. 2 2021, the Board denied the subdivision/site plan application for

older unit s and the remaining p. 3 35 units as unrestricted. modified, with the final plan designating 14 units as age - restricted, 65 - and - 49 units. The composition of age - restricted and unrestricted units was also subdivision/site plan application, the project’s density was reduced from 54 to Ordinance (IIHO). During the review process with res pect to the units under the Town’s since - repealed Integrated Innovative Housing conditional use permit (CUP) for “an increased project density” of up to 54 3

Nothing in th is opinion is intended to alter these directives. conditions. herein; or, b) an approval which can include customary and reasonable approval zoning ordinances or planning regulations, and valid concerns not addressed based on legitimate, unsatisfied planning board requests, non - compliance with condominium documents] prior to any new vote, which vote may be: a) a denial The Planning Board shall complete its review of the foregoing [i.e., the over mixed - age housing, are noted later in this opinion. The third stated: Applicant’s provision of condominium documents reasonably addressi ng the Board’s concerns regarding a collaborative discussion of state and federal age - restricted housing rules and the The HAB gave the Board and the Applicant three specific directives on remand. The first two, 1

law.” despite . . . that such an arrangement is in contravention of federal and state permitted younger persons to reside within an age - restricted housing unit, omitted.) The Town explains that “the last version of the [Appl icant ’s] proposal unco ntroverted failure to comply with the elderly housing law.” (Bolding denial, in part, was reasonable in light of the Applicant’s continued and the Board’s denial of the Applicant’s Subdivision Application because the The Town first contends that the HAB “erred in vacating and remanding

it, that said decision is unreasonable.” RSA 679:9, II (Supp. 2021). the board is persuaded by the balance of probabilities, on the evidence before 4). The HAB “shall not reverse or modify a decision except for errors of law or if statute. See Appeal of Chichester Commons, LLC, 175 N.H. at ___ (slip op. at The HAB’s review of a planning board ’ s decision is similarly governed by

Town of Temple, 157 N.H. 642, 649 (2008). a tribunal’ s order presents a question of law, which we review de novo. Guy v. Chi chester Commons, LLC, 175 N.H. at ___ (sli p op. at 4). The interpretation of findings are supported by competent evidence in the record.” Appeal of or to reweigh the evidence, but, rather, to determine whether the HAB ’ s findings, ou r task is not to determine whether we would have found differently be prima facie lawful and reasonable.” Id. “When reviewing the HAB’ s unreasonable.” RSA 541:1 p. 3 3 (2021). The HAB’ s factual findings are “deeme d to preponderance of the evidence before [us], that such order is unjust or the HA B’ s order, “except for errors of law, unless [we are] satisfied, by a clear (slip op. at 4); s ee RSA 679:15 (Supp. 2021). Accordingly, w e will not set aside Appeal of Chi chester Commons, LLC, 175 N.H. ___, ___ (decided Sept. 2, 2022) “Our review of the HAB’ s decision is governed by RSA ch apter 541.”

second written order. The Town now appeals both orders. Board. The Town moved for reconsideration, which the HAB denied in a 1 p. 4 4

Town C ounsel’s review and approval of proposed condominium documents is legal counsel officially review sa id documents.” The HAB noted, however, that [itself] that the condominium documents were . . . unlawful without having misunderstanding of the law, the Planning Board was able to determine for The Town nevertheless argues that “[g]iven the Applicant’s clear

had not yet taken pla ce.” check for the cost of Town C ounsel’s review with a letter explaining that “review denial of the application at that meeting, the Town returned the Applicant’s address any questions that arise from this review.” Following the Board’s with Town C ounsel for review and stated that “[t]he applicant will be happy to engineer acting as the Applicant’s agent noted that the legal documents were and report back to the Board when done.” At the April 7 meeting, the civil paid. The staff report further states that “Town Couns el will begin his review Restrictions had been sent t o Town Counsel and the cost for review had been of Condominium and the Declaration of Covenants, Easements and Director for the A p ril 7, 2021 Board meeting stat es that the revised Declaration finding. The staff report created by the Town’s Community Development asked to advise on the elderly housing law.” The record supports the HAB’s review is “incorrect” and asserts “[t] he record reflects that Town [C] ounsel was The Town contends that the HAB’s statement as to Town C ounsel’s

documents which ordinarily is a condition of approval.” documents” and noted that the Board “never reviewed final condominium federal and state statutes could be “addressed by the condominium elderly component.” The HAB determined that compliance with appli cable noted, the Applicant had been granted a CUP for a project that included “an [us], that such order is unjust or unreasonable.” RSA 5 p. 4 41:13. As the HAB We are not persuaded, “by a clea r preponderance of the evidence before

concerns . . . . documents reasonably addressing the Planning Board’s mixed - age . . . The Applicant shall provide complete RSA 365 - B condominium

unit housing project; associated wit h the proposed, 1 p. 4 4, age - restricted units within a 49 discussion regarding state and federal age - restriction rules The Planning Board and Applicant will engage in a collaborative

remand: approved.” Accordingly, the HAB directed, among other things, that on issue, and determined that “this must be a plan condition should the project be that “compliance with state and federal elderly housing rules” remained an contemplated higher density, age - restricted housing.” The HAB acknowledged on the basi s of “age concerns [was] clearly unreasonable, since the IIHO The HAB found that the Board’s denial of subdivision/site plan approval p. 5 5

hous ing”; (2) “misinterpreted the significance” of a case relied upon by the housing was based on how many units would be designated as elderly (1) “misconstrued that the denial relative to the disagreement over elderly The Town alleges a number of other errors by the HAB, including that it:

deadline rendered the Board’s denial “proper[].” mutually agreeable.”). Accordingly, we are not persuaded that an impending specified in subparagraph (c) and consent to such extension as may be may waive the requirement for planning board action within the time periods waiver of the 6 p. 5 5 - day deadline. See RSA 676:4, I(f) (Supp. 202 2) (“The applicant Town makes no argument that it was legally prohibited fr om accept ing another make it clear that this continuance is the applicant’s final opportunity,” the March 3, 2021 vote to table the application to its next meeting was “intended to extend the 65 - day deadline. Although a Board member stated that the Board’s Moreover, the record reflects that the Applicant had previously agreed to

fault for “consum[ing] [the statutory] time frame.” Accordingly, we reject the Town’s assertion that the Applicant was solely at See Appeal of Chi chester Commons, LLC, 17 p. 5 5 N.H. at ___ (slip op. at 4). upon our review of the record, this finding is supported by competent evidence. aspect of the project, and a mutual failure to effectively collaborate. Based fair housing law requirements, continuing confusion over the age - restricted record reflected ongoing discussion between the parties about federal and state RSA 676:4, I(c) (Supp. 202 2). We disagree. The HAB noted that the certified elderly housing law,” th e Board “properly decided to deny the application.” See incorrectly proclaim[ing] on the record that they satisfied the requirements of frame and more by misapplying federal and state elderly housing laws and on an application within 65 days and since the [Applicant] consumed that time The Town argues, however, that the Board is obligated by statute “to rule

unreasonable. See RSA p. 5 541:13; RSA 679:9, II. application based on its own concerns about legal compliance, was Board ’s failure to follow this customary practice, and instead, to deny the say that it was unjust or unreasonable for the HAB to conclude that the C ounsel is “[o]rdinarily, a condition of site/subdivision approval.” We cannot The Town does not challenge the HAB’s finding that review by Town

the Town has an obligation to pin down what was required.” statutory requirements. It observed, however, that “along with the Applicant, well aware that age - restricted housing must comply with federal and state guessing at what may be relevan t and necessary for inclusion.” The HAB was conditions in a Planning Board approval without the Applicant continuously proposal. It also allows the condominium documents to address final Applicant’s proposal addresses factors unique to the specific development approval.” The HAB further explained that the practice ensures “th at the “customary practice” and “[o]rdinarily, a condition of site/subdivision p. 6 6

existing zoning district ordinances. lighting than any use of the property permitted under the properties by reason of noise, fumes, vibration, or inappropriate [4] That the proposed use will not be more objectionable to nearby

welfare of the neighborhood and the Town of Amherst. the proposed use upon the public health, safety, and general [3] That there will be no significant adverse impacts resulting from

. ...

Plan. . . . that the proposed use is consistent with t he Amherst Master standards for the reduction in dimensional requirements, and dimensional requirements of the zone, or meets Planning Board [1] That the property in question is in conformance with the

conditi ons had been met, including: in its application for a CUP, the Applicant had to prove that a number of Section 4.1 p. 6 6 CUP density” of up to 54 units. Specifically, the HAB noted that related to rural character or aesthetic “were already considered in granting the based on non - compliance with ‘rural aesthetic’” because the appl icable factors preponderance of the evidence, that it was unreasonable to deny this project basis for the Board’s denial was also unreasonable. The HAB found, “by a The Town next challenges the HAB’s finding that the “rural aesthetic”

of subdivision/site plan approval, a review that the Town did not pursue. reviewed by Town C ounsel and his approval of them would be made a condition according to customary practice, the condominium documents would be denial based upon concerns about complian ce to be unreasonable w hen, documents complied with all applicable laws. Rather, it found the Board’s decision. The HAB did not conclude that the proposed condominium None of these alleged errors bear s upon the reasonableness of the HAB’s

incapable of preventing changes to the condominium association.” only 1 4 out of 49 units as age - restricted, those units constituted “a minority made. . . by 2/3 vote of condominium members,” and the project designated c ondominium documents, that because they “allowed for amend ments to be also points out, as an additional defect in the Applicant’s proposed have separate governing controls for the age - restricted housing.” The Town not the ‘mixing of the units’ but rather the proposed plan, as presented, did not age - restricted units and nonrestrictive housing units” when “[t]he issue was Town; and (3) “misguidedly opined that state law does not prohibit a mix of p. 7 7

of “rural aesthetic” ultimately were not essential to its decision. A lthough the In any event, the HAB’s concern s over the lack of an “express definition”

related to a “rural aesthetic.” determination s made when it granted the CUP, including determinations Regulations” somehow provides the Town an opportunity to reconsider projects are subject to the. . . Subdivision and Non - Residential Site Plan We reject the Town’s contention that the IIHO provision stating that “[a]ll IIHO compliance with the Master Plan was considered at the CUP approval stage. advance the goals stated in the Master Plan.” As the HAB concluded, The regulations’ objectives, however, also further the stated purp ose “to

viewscapes.” preserving farmland, forests, grasslands, wetlands, and maintaining rural subdivision regulations recit es the objective “[t]o maintain rural character, (Bolding o mitted.) Specifically, the Town notes that Section 201.2 of the “which include a list of factors to consider t hat pertain to ‘rural character. ’” Section 4.16, the IIHO provision, refers to the Town’s subdivision regulations applicable sections of the Town’s z oning o rdinance. The Town argues that no ‘good definition’ of ‘rural aesthetic’ or ‘rural character’ contained in” the The Town also contends that the HAB “incorrectly claim[ed] that there is

HAB’s ruling on this issue was unjust or un reasonable. See RSA 541:13. Section 4.1 p. 7 7. Accordingly, we find no error, nor can we conclude that the ordinance, not under the Planned Residential Development provisions of application was submitted under the IIHO, which is Section 4.16 of the zoning determination in this case. To the contrary, the record reflects that the CUP erred in concluding that Section 4.17 was inapplicable to the final density Section 4.17(A) of the Town’s zoning ordinance. The Town argues that the HAB project’s density could again be considered at the final approval stage under reconsideration, that the impact on “rural character” due to the proposed The Town nevertheless contends, as it previously argued in its motion for

up to 54 units was approved in ac cordance with the then - existing IIHO.” concluded, however, “[t]he ‘density’ concern left the station when the CUP for and at the same time preserve a rural aesthetic.” As the HAB reasonably and [tha t] is probably an insurmountable hurdle for this applicant to overcome supports this finding, as it stated that the 49 units proposed are “too much reconsideration, but, rather, focused on density. The Board’s decision itself did not focus on the “elements of ‘rural character’” put forth by the Town on Moreover, the HAB observed that in denying the applicati on, the Board

CUP approval.” that the “[r]ural aesthetic is not violated as a result of the 04 January 2019 met, the rural aesthetic of the Town could be impacted.” Accordingly, it ruled It then reasoned that “[i]f the first, third, and fourth CUP conditions are not p. 8 8

JJ., concurred. M AC DONALD, C.J., and BASSETT, HANTZ MARCONI, and DONOVAN,

II. 175 N.H. at ___ (slip op. at 4). We find no error. See RSA 541:13; RSA 679:9, by competent evidence in the record.” Appeal of Chich ester Commons, LLC, evidence, but, rather, to determine whether the HAB’s findings are supported to determine whether we would have found differently or to reweigh the themselves unreasonable. “When reviewing the HAB’ s findings, our task is not reasonably determined that the Board’s articulated grounds for denial were The Town has fail ed to demonstrate err or. As discussed above, the HAB

law, and federal law. based o n facts and said facts’ application to the ordinance, state material to demonstrate that the Planning Board’s denial was evidence in the eight ( p. 8 8) volumes and five (5) years’ worth of Board’s decision - making as there was ample discussion and There was nothing unlawful or unreasonable in the Planning

statutory standard of review. Rather, the Town vaguely ass erts: The Town cites no concrete evidence of the HAB’s failure to follow its

Record and came to its own conclusion.” findings.” Instead, according to the Town, the HAB “reviewed the Certified decision proper deference and “disregarded the Planning Board’s well - r easoned those of the Board. It asserts that the HAB failed to accord the Board’s Finally, the Town argues that the HAB erred by substituting its views for

further. of the 04 January 2019 CUP approval,” we need not address this argument with respect to the HAB’s ruling that ‘[r]ural aesthetic is not violated as a result ‘for up to 54 units’ satisfied this ‘undefined concept.’” Having found no error aesthetics’ is misplaced,” but nevert heless concluded that “the grant of the CUP HAB observed that “[d]enying a project using the undefined concept of ‘rural demonstrated satisfaction of the “rural aesthetic” concept. In other words, the suppleme ntal or alternative to it s ruling that the 2019 CUP approval observation was, as the introductory language makes clear, merely concept within the Town Zoning Ordinance or Planning R egulations,” that aesthetic is hampered by the fact that there is no express definition of the HAB state d that “[i]n addition to the foregoing, any detailed analysis of rural