Under RSA 672:1, III (e) Municipalities Must Ensure the Exercise of Zoning and Planning Powers do not Discourage the Development of Workforce Housing

Appeal of Town of Windham
New Hampshire Supreme Court Case No. 2021-0473
Tuesday, October 4, 2022

Under RSA 672:1, III (e) municipalities must ensure the exercise of zoning and planning powers do not discourage the development of workforce housing

The Town of Windham appealed a decision of the Housing Appeals Board (HAB) concerning a  housing project involving both workforce and market rate units.  The applicant sought to construct sixteen single-family condominiums, which, together with the existing single-family house, would result in seventeen total units. Windham’s zoning ordinance permitted workforce housing in the applicable zoning district but required that at least 50 percent of the units be workforce housing.  The applicant sought a waiver of that percentage, as permitted under the ordinance, where the 50 percent requirement “creates a financial burden and makes the development not financially viable.” 

In support of its waiver request, the applicant submitted a workforce feasibility analysis from an independent engineering firm, which concluded that developing 50 percent of the units as workforce housing would not be financially feasible and would likely generate a financial loss of approximately $130,000.   The Town’s engineer reviewed and agreed with that analysis.  The planning board denied the waiver because the applicant’s financial information did not support the request.  The applicant appealed the denial of the waiver request to the HAB.  The HAB vacated the board’s denial of the waiver and remanded to the board with instructions to reconsider an appropriate workforce housing percentage in light of the duty imposed under RSA

674:58, III to provide reasonable and realistic workforce housing development opportunities. The Town appealed that decision to the Supreme Court.

The primary focus of the Court’s decision[1] was on the alleged illegality of the HAB ordering the planning board to reconsider the denial of the waiver of the required percentage of workforce housing units under the zoning ordinance.  The Town argued that it was the applicant’s burden to propose a more appropriate percentage of workforce housing, and it was error to put the onus on the Town to determine the appropriate percentage of workforce housing.  The Supreme Court rejected this argument, stating that the Town’s position was in conflict with the mandate of   RSA 672:1, III(e) that the opportunity for workforce housing shall not be unreasonably discouraged by municipal planning and zoning.  Furthermore, the Court reasoned that the Town’s approach would permit the planning board to engage in dilatory tactics, contravening its duty to assist citizens in the land use application process. 





[1] This decision is an order disposing of this case in which no formal opinion of the Court was issued and therefore has no precedential value, but it may, nevertheless, be cited or referenced in pleadings or rulings in any court in this state, so long as it is identified as a non-precedential order and so long as it was issued in a non-confidential case.  N.H. Sup. Ct. RULE 20

Additional Information: 

Practice Pointer:  When addressing land use applications that incorporate workforce housing the burden is on the municipality to ensure that development of such housing shall not be prohibited or unreasonably discouraged by use of municipal planning and zoning powers or by unreasonable interpretation of such powers.