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HB586 Proposed Amendment 2021-0462h; Reasoning and Changes
Representative Susan Homola, Hillsborough, D27
Dear fellow Representatives,
HB586 bill addresses an important need across New Hampshire; the lack of affordable housing. The aim of this amendment is to clear the way for communities to pursue housing options in a manner that is appropriate for each town, without binding them in regulatory statue designed to favor developers and disadvantaging abutting residents, local land use boards, City Councils, and Select Boards. As currently written, HB586 is contrary to how we govern here in New Hampshire.
Overall, this bill favors developers by restricting land use boards with an expedited project approval processes. It removes the Selectmen and City Council from the approval process, and greatly reduces an abutting resident’s access to appeal by financially burdening them with a bond requirement. In addition, it puts the Office of Strategic Initiative in control of setting standards for distribution of tax breaks and “preferential access to state resources” of the state government.
Of great concern is the instantiation of the New Hampshire Housing Champion Certification Program Advisory Board. This advisory board is predominately stocked with special interest groups, and the bill provides little legislative oversight. The makeup of the advisory board heavily favors development interests and fails to ensure a level of playing field of fairness. There is little doubt that the housing push will attract millions of dollars of investment, some of which will be state money. The current makeup of the proposed advisory board invites special interest back-door dealings, lack of transparency and accountability for the taxpayer and the legislature. Presently, HB586 provides all the needed ingredients for potential corruption.
My amendment address many of these major concerns, while still providing each community with a framework for addressing the very important housing needs of their individual towns.
This explanation sheet references two documents:
Document 1: HB586 with Annotated Changes (the bill, plus amendment language annotated in “track changes.”)
Document 2: HB586 Amendment 2021-0462h
Note: Document 3 is not referenced in this explanation sheet, but it shows HB 586 with areas of concern highlighted.
Thank you for your consideration of this amendment, and please feel free to reach out should you have any questions.
REASON FOR AMENDMENT: BINDING LANGUAGE
HB586 as written:
Pg. 2, 3
(3. Local Land Use Planning and Regulatory Powers; Innovative Land Use Controls.)
The bill states that if towns offer incentives (increased density, reduced lot size, expedited approval, or other dimensional or procedural incentives) for senior housing, then it “shall” offer these incentives for Workforce Housing.
Many towns have prioritized senior housing and their voters have approved these developments on smaller lot sizes. For towns dependent on well water, smaller lots sizes increase water demand, and senior housing has been incentivized under the assumption there would be 1-2 residents per smaller lot thus mitigating the effect of smaller lot size on water resources. Workforce Housing will not be limited to 1-2 people, and the demand on ground water is greater. This summer we experienced a significant drought, and the water level for some wells dropped as low as 40 feet. This overtaxed many well systems and caused malfunctions that were costly to repair. If family housing development requirements are automatically linked to senior housing development requirements, this will create a burden on water demand. Towns must have the flexibility to study these issues carefully without binding language that only serves to rush housing development.
A note about the difference of “shall” versus “must”
For years, the word “shall” has been used to imply “must” when used in statutes. Until very recently, law schools taught these words were synonymous. Although the definition of “shall” has been addressed in higher courts, it still causes confusion in interpretation. (For instance, the use of “shall” is very forthrightly used in section 5. Planning and Zoning; Administrative and Enforcement Procedures; Issuance of Decision.) For this reason, replacing “shall” with “may” eliminates any risk of misinterpretation.
REASON FOR AMENDMENT: ISSUES WITH AUTOMATIC REVERSALS OF LAND USE BOARD
(5. Planning and Zoning; Administrative and Enforcement Procedures; Issuance of Decision.)
HB586 Unamended: The bill states that if the Land Use Board fails to provide specific written findings of fact with regard to developers’ application disapprovals, it shall be grounds for an automatic reversal of the board decision. The bill also includes a provision for remand by a superior court upon appeal, which is an appropriate next action in the case that findings of fact are not included with a disapproval. However, the automatic reversal of the land board decision is an inappropriate and overreaching response to a technical problem with a disapproval.
REASON FOR AMENDMENT: UNREASONABLE TIME RESTRAINTS ON LARGE PROJECTS UNDER CONSIDERATION BY ZONING BOARD
Pg. 3 6,VIII
HB586 Unamended: The bill imposes a new time constraint on local zoning boards and does not currently provide any limitation on the number of units that an application may have to receive the benefit of zoning board consideration within a 90-day period. Projects involving many units are often complex and require additional technical review.
REASON FOR AMENDMENT: HB586 FUNDAMENTALY RESTRUCTURES LAND USE APPROVAL PROCESS
(A continuation of Planning Board; Board’s Procedures on Plats)
HB586 Unamended: This bill changes the procedures and timelines currently used by planning boards, City Councils, and Select Boards to consider a development application. These procedures are well-established and understood protocols. What the unamended language does is remove any local authority speed bumps the developer might face in the approval process, and serves to remove the ability of City Council and Select Boards to identify non-compliance with local ordinances and regulations. This reduces local oversight and only serves the interests of developers. This language also allows the same developer to resubmit a denied application, thus grinding down local opposition to project, and putting a financial burden on the local community and residential abutters to who may oppose the proposed project.
REASON FOR THE AMENDMENT: UNDUE FINANCIAL BURDEN ON A RESIDENTIAL ABUTTER TO AN APPEAL, AND THE INCLUSION OF GROSS NEGLIGENCE.
Fee Shifting and Posting of Bond
HB586 Unamended: The bill requires any residential abutter to get a bond in order to appeal to a superior court. This is one of the more concerning parts of this bill. Requiring a bond will push the appeal process out of reach for many individuals, and will certainly eliminate the right to justice for lower income and fixed-income residents. This unfairly provides an advantage to large developers with deep pockets who could use the spoils of development to address legal costs.
In addition, the next paragraph states that when a case is appealed, land use boards can be sued for attorney’s fees and costs when in can be proven that said boards acted with gross negligence, it is likely this will be used by developer’s attorneys to discredit the decisions of land use boards who fail to complete the Office of Strategic Initiative training program. (This training is mentioned at the beginning of the bill.)
REASON FOR THE AMENDMENT: SPECIAL INTEREST GROUPS OVER REPRESENTED ON HOUSING ADVISORY BOARD
New Hampshire Housing Champion Certification
HB586 Unamended: The bill states that the Office of Strategic Initiative will have the authority to determine whatever Housing ordinances and regulations it deems necessary to promote Workforce Housing development even to the point of withholding tax breaks to those municipalities which have legally compliant ordinances. In addition, the New Hampshire Housing Champion Certification Program Advisory Board contains more special interest groups than legislative oversight, and this bill gives these groups the ability to use tax breaks to induce benefits for their causes, without any oversight to the taxpayer or the legislation. This is egregious, and it makes this process vulnerable to corruption and lack of transparency.
NOTE: Due to the formatting restrictions of this website, the full amendment cannot be viewed here. If anyone wishes to view it, please email me and the amendment can be shared as a PDF document.