The following summary is based on a decision of the Merrimack County Superior Court. Please note that (a) superior court opinions are not binding on the New Hampshire Supreme Court, and (b) at the time this summary went to print, it was still possible for this decision to be appealed to the New Hampshire Supreme Court.
In the first lawsuit to reach a superior court regarding RSA 674:59, the new “workforce housing” statute, the Town of Hooksett successfully demonstrated that it had provided reasonable and realistic opportunities for the development of single-family workforce housing.
The developer submitted a site plan review application and a variance application for a proposed workforce housing development consisting of single-family homes on lots of smaller size and with less frontage than the town’s zoning ordinance required. After the applications were denied, the developer appealed to the superior court on a variety of grounds, including a claim under RSA 674:59 that the town had failed to provide the required opportunities for workforce housing. Had the developer prevailed on this claim, the court could have not only reversed the town’s denials of the application but also could have issued a so-called “builder’s remedy,” granting the developer permission to begin constructing the project without further action by the town. RSA 674:91.
Critically important in this case was the fact that the Planning Board had received evidence during its public hearing regarding the town’s “fair share” of workforce housing. The code enforcement officer submitted a document calculating the town’s fair share of current and reasonably foreseeable workforce housing needs, and demonstrating that the existing housing stock was sufficient to accommodate it. The trial court accepted this as reasonable evidence that the town had met its burden. In addition, although the developer argued that the town was required to permit workforce housing in that zoning district, the court noted that the law requires only that a town allow it “in a majority, but not necessarily all,” of the residential zones in town. RSA 674:59.