Planning Board Deviation From Past Practices When Reviewing a Land Use Project Can Result in Reversal of a Board Decision

Appeal of Town of Amherst
NH Supreme Court No. 2021-0570
Wednesday, January 18, 2023

Migrela Realty Trust II and GAM Realty Trust (hereinafter Applicant) sought approval of a mixed elderly restricted and unrestricted housing project in the Town of Amherst. The project was granted a Conditional Use Permit for an increased project density of up to 54 units. During the review process for the subdivision/site plan the project was reduced to 49 units, with 14 of those units age restricted 65-and-older consistent with RSA 354-A:15, and the remaining units unrestricted. 

The Amherst Planning denied approval due to perceived conflicts between federal law on age restricted housing and concern the project would be under a common, condominium regime.  The Applicant appealed to the Housing Appeals Board (HAB) and the Board vacated and remanded the matter back to the planning board with instructions to undertake a collaborative discussion of state and federal age-restricted housing rules and the provision of condominium documents that addressed concerns about mixed-age housing.  The HAB ordered the planning board to make a new decision based upon legitimate unsatisfied planning board requests if the new vote is to deny, or if an approval include customary and reasonable approval conditions.

The Supreme Court affirmed the decision of the HAB finding that the original rejection by the planning board on the federal law age-restrict housing issue was inconsistent with the board’s past practice of resolving those matters through town counsel review of condominium documents as a condition of approval.  As stated by the Court “[w]e cannot say that it was unjust or unreasonable for the HAB to conclude that the 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 rural aesthetic concerns of the planning board were previously addressed during the CUP process.


Additional Information: 

Practice Pointer:  When a planning board deviates from well established past practices when reviewing a land use project this could provide a basis to find the action of the board is unreasonable leading to overturning a board decision.