Real Estate & Development

NH Superior Court Declares Exclusionary Multifamily Zoning Unlawful

March 2005

By Ari B. Pollack*

Proponents of affordable multifamily housing won a victory in a recently released New Hampshire Superior Court opinion considering the exclusionary effect of zoning directed at multifamily housing. In the matter of Great Bridge Properties, LLC v. Town of Ossipee, Judge Mohl found that certain of the multifamily housing provisions of the Town of Ossipee zoning ordinance unlawfully restrict the development of low- and moderate-income affordable housing. See Strafford County Superior Court, Docket No. 04-E-110, Findings, Rulings, and Orders dated Feb. 7, 2005 ("Order").

In Great Bridge, a developer of low- and moderate-income affordable housing sought variances to construct six (6), four-unit buildings in a multifamily housing complex. The complex was to be located on a single lot consisting of approximately nine (9) acres. Variances were necessary since the Ossipee zoning ordinance prohibited construction of more than one principal structure per lot and otherwise restricted the scope of multifamily housing. The developer's proposal included a mixture of one, two and three bedroom apartments and reservation of substantial acreage for green space.

In striking down portions of the zoning ordinance, Judge Mohl's Order cites evidence gathered from an economic study of the Carroll County region and the Town of Ossipee. Compared to the region, the study concludes that Ossipee provides a disproportionately low offering of low- and moderate-income housing. In particular, relying on utilizing census data, the study indicated Ossipee's share of low- and moderate-income housing should approach nine (9) percent. The study found, however, that the Town was only providing a little over four (4) percent of the region's need for affordable multifamily housing.

The Order also considers the interaction of the New Hampshire Housing Finance Authority ("NHHFA") and the availability of government funding to aid programs directed at developing affordable housing. Specifically, the Order adopted testimony from the NHHFA's Director of Management and Development that multi-unit, cluster projects offer a more efficient and cost-effective delivery of resources than single-family or subdivision-style development. For this reason, the Order finds zoning that restricts locating multiple structures on a single lot, or clustering, indirectly hinders the development of affordable housing.

The Order provides the Town of Ossipee with sixty (60) days to replace the unlawful zoning provisions with legal regulations. The Order denies the developer's request to bypass the planning board site plan review process, but requires that the Planning Board conduct an expedited review of the project.

While the Order may be modified by reconsideration or appeal, it is also possible that the parties will resolve the remaining steps toward development by private settlement or stipulation.

*Ari B. Pollack is admitted in New Hampshire and Massachusetts.

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