After years-long challenges from “a group of abutters and other concerned citizens,” the New Hampshire Supreme Court reached a decision allowing development of a housing development along North Mill Pond in Portsmouth. In 2021, Iron Horse Properties, LLC, requested various approvals from the Portsmouth planning board regarding its planned redevelopment of the property. The company’s proposal provided for three apartment buildings totaling 152 housing units and requisite parking. Previously, the site had industrial, and railroad uses, and the old rail infrastructure remained and, according to the developer, created a safety hazard. Iron Horse had submitted a proposal once before, for 178 units, but it was denied a variance by the ZBA. Its proximity to North Mill Pond means it contains a 100-foot wetlands buffer, which required conditional use permit to permit construction.
In addition to the rail setback and wetland buffer, the site contains view corridors to ensure that sightlines from perpendicular city streets to the water are not interrupted, and it contains a municipal sewer easement for pipes carrying wastewater to a nearby pumping station. Due to these restrictions and other land use requirements, Iron Horse sought a site review permit, lot line revision permit, and two conditional use permits: one for shared parking and one of building in the wetland buffer zone. On April 15, 2021, the planning board approved all the permits.
A “group of abutters and other concerned citizens” filed an appeal to the zoning board, which granted the appeal, effectively reversing the planning board’s approvals. Iron Horse filed a motion for rehearing, which was denied, then appealed to the Housing Appeals Board. Of the nine claims the citizen group made before the ZBA, the Housing Appeals Board (“HAB”) dismissed three and reversed six, meaning Iron Horse had prevailed. The group then appealed to the Supreme Court. Supreme Court in reversing HAB decisions is limited to “errors of law” and “clear preponderance of the evidence … that such order is unjust or unreasonable.” R.S.A. 541:13. Similarly, the HAB must accept the factual findings of municipal boards as reasonable, and it is limited in reversing such decisions only for “errors of law” and when convinced “by the balance of probabilities … that said decision is unreasonable.” R.S.A. 777:6 and 678:9, I-II.
The first thing the Court had to address was whether the proposed project met the six criteria for a conditional wetland use permit under the Portsmouth zoning ordinance. Even though the petitioners express “some doubt” about all six criteria, they only briefed – and so the court only ruled on – two of them.
One was subsection (2), which allows conditional use permits in a wetland buffer only if “[t]here is no alternative location outside the wetland buffer that is feasible and reasonable for the proposed use, activity or alteration.” The petitioners argued that “smaller, truncated, and/or reconfigured versions” of the building could be placed elsewhere on the lot without violating the rail setback, view corridors, and sewer easement. The Court found for Iron Horse that the Planning Board and HAB did not err in finding no alternative was “reasonably feasible” or “viable” (which the Court says are synonyms). This is because the representative for the developer indicated at the initial hearing in 2021 that a smaller project would not be viable financially, as the project could not be built within economic likelihood of paying for itself. The Court found economic challenges sufficient to show infeasibility. It also found that the board was entitled to accept the representative’s claim as fact. In doing so, it cited Dietz v. Town of Tuftonboro, in which it wrote, “it was not unreasonable for the [boards] to credit the representations made by [the applicant’s] attorney that ‘the cost would be prohibitive.’” 171 N.H. 614, 624 (2019).
The next criterion was in subsection (5): “The proposal is the alternative with the least adverse impact to areas and environments…” Similar to above, the Court found that moving the buildings to encroach less on the wetland buffer was not a workable alternative because it either would have required shrinking the buildings (infeasible) or run into the rail setback, view corridors, or sewer easement. It considered the representative’s statement before the planning board again, as well as the four previously considered site plans, all of which would have also encroached into the buffer. The Court notes that the Portsmouth city attorney advised the planning board and that the wetland buffer had been previously disturbed as weighing toward the board was not unreasonable.
The second thing the court had to consider was whether the permit was lawful in the first place; local boards have wide discretion, but that discretion does not survive illegality. Under the doctrine of Fisher v. Dover land use boards cannot grant applications without material changes from a similar application that had been previously denied. Before the 2021 permit applications, Iron Horse applied for a variance in 2019 for a slightly different version of the project, which the ZBA rejected; in its appeal here, the ZBA said the new proposal was not materially different, and the Housing Appeals Board disagreed. The petitioners said the HAB must accept ZBA findings as fact and cannot allow approval of a previously rejected proposal. The Court disagreed.
The Court highlighted the material differences. The 2019 plan noted the height of the buildings at 60 feet, requiring a variance from the allowed 50 feet. The final 2021 plan measured it at 50 feet from the “new average grade plane” and even though the petitioners objected to the measurement, they conceded it was “exceeding 50’ and reaching almost 60’ in height.” The HAB was right to find that the zoning board did not have the facts upon which to base its ruling that the proposals were materially the same, so the Supreme Court affirmed the HAB’s ruling.
The Supreme Court affirmed the Housing Appeals Board decision as neither legally erroneous nor unjust or unreasonable and effectively ended challenges preventing the new housing development in Portsmouth.