James Logan owns a parcel of unimproved land measuring 97.76 acres in the Town of Candia’s residential zoning district with 1196 feet of frontage on a local roadway. Candia’s residential zoning district requires a minimum of three acres to a lot. Under Candia’s zoning ordinance, elderly housing projects are required to have two hundred feet of frontage on roads considered “arterial"; this property was on an arterial road but did not have that amount of frontage. Logan went to Candia’s Planning Board (PB) on March 17, 2021 to discuss his idea to build an elderly housing unit on his lot, notifying them that this project would require a waiver for the frontage requirement. On July 5, 2022, Logan officially applied to the PB for a site plan and subdivision review and conditional use permit to allow the construction of his elderly residential unit and submitted with his application site plans, a transportation impact assessment, and requests for three waivers including one for the aforementioned frontage requirement. The PB held a public hearing on this matter over the course of both its August and October 2022 meetings, and on October 24, 2022 issued a notice of decision stating that they denied Logan’s application for the following reasons:
- The waiver Logan requested did not meet the criteria for unreasonable hardship and waiving the frontage requirement would be incongruent with the spirit and intent of the ordinance.
- Logan’s proposed project would conflict with the rural “character” of the town.
- The project would adversely impact abutters.
On November 18, 2022, Logan appealed to the Housing Appeals Board (HAB) with a statutory complaint that the PB’s denial of his application for the conditional use permit and waiver of the arterial road frontage requirement were unreasonable and unlawful. He also requested declaratory judgment that the town ordinance’s arterial road frontage requirement should be rendered void because it violated the equal protection provisions in both the United States and New Hampshire constitutions. The Town of Candia moved to dismiss the constitutional complaint with the argument that the HAB lacks subject matter jurisdiction over declaratory judgment requests.
As far as Logan’s complaints that the PB’s denial of his conditional use permit and arterial road frontage requirement waiver applications were unlawful and unreasonable, the HAB ruled that Logan’s arguments demonstrated how his proposed use of the lot was reasonable but that he had failed to meet the burden of proof that denying him the waiver would cause him unnecessary hardship. The HAB ruled that Candia also failed to establish that granting the waiver would cause it unnecessary hardship, as any roadway inadequacies would be ameliorated by Logan’s pledge to donate $430,000 to road improvements if his application was granted. Because it found the PB’s denials not unlawful or unreasonable, the HAB did not need to analyze the spirit and intent of the ordinance issue.
With respect to Logan’s constitutional complaint and Candia’s subsequent motion to dismiss, the HAB found that it does have jurisdiction. Under RSA 679:5, I, the HAB has jurisdiction over appeals of PB decisions and innovative land use controls, and under RSA 679:5, II, it has the authority to award the necessary remedies to the superior courts; declaratory judgment and relief are considered broad remedies. To resolve this complaint, then, the HAB has scheduled a conference with both parties.