real estate development

Legislative Update for the Building Trades

For the New Hampshire Building Trades, the Year Is Off to a Fast Start

March 2018

By Ari B. Pollack* for Granite State Builder Magazine

As in the past, the 2018 legislative year features a number of bills aimed at construction law, land development and, directly or indirectly, home building. We take a look at a handful of the more relevant bills, as well as the New Hampshire Home Builders Association’s legislative position on each proposal.

Proposing the Creation of a Housing Appeals Board

Senate Bill 557, sponsored by Sen. Bob Giuda (R-Warren), proposes the creation of an administrative tribunal to hear and decide developer appeals from local land use decisions. At present, the State Superior Court is the only forum for such appeals — an appellate track that is known to impose delay, expense and, ultimately, uncertainty. As an option available to applicants who may seek to reverse a local development denial or to modify an approval carrying undesirable conditions, the House Appeals Board would present a new option for bringing an appeal. As a housing-oriented forum, the full-time commissioners would be subject matter experts appointed by the State Supreme Court and commissioned by the governor. The proposed board is modeled upon the existing Board of Tax and Land Appeals, which offers an alternative to the State Superior Court for tax abatement appeals.
Because the delays associated with conventional appeals can often kill or harm otherwise successful development proposals, the NHHBA SUPPORTS passage of SB 557.

Relative to the Department of Transportation’s Permitting Procedures

Senate Bill 464, sponsored by Sen. Sharon Carson (R-Londonderry), would impose new and strict timelines upon the Department of Transportation’s review of infrastructure modification applications. Private developers often propose new or redeveloped improvements that have a direct connection to a state highway. In these instances, the developer must obtain a permit from the Department of Transportation (DOT) to create, alter or modify intersections with state highways. This process is often cumbersome, expensive and time-consuming. SB 464 attempts to streamline the DOT application process by imposing a new review clock, with real consequences, upon the state’s consideration. For example, an application not reviewed by DOT in the timeframe imposed by the legislation is “deemed to have a permit by default.”
As these types of administrative timelines have proven effective in the context of environmental permitting, the NHHBA SUPPORTS passage of SB 464.

Reducing the Real Estate Transfer Tax for First-Time Homebuyers

Senate Bill 301, sponsored by Sen. Jeb Bradley (R-Wolfeboro), proposes a temporary reduction of the real estate transfer tax for first-time New Hampshire homebuyers. Reducing the tax from $0.75/$1,000 to $0.50/$1,000 for a period of two years, SB 301 is supported by Governor Sununu and Senate leadership as an additional means of making home ownership more affordable for New Hampshire residents.
As the cost of quality and affordable workforce housing continues to rise, the NHHBA SUPPORTS passage of SB 301.

Relative to Regulatory Reforms

House Bill 1104, sponsored by Rep. Dick Hinch (R-Merrimack), is the recent work product of Governor Sununu’s Regulatory Reform Steering Committee. Amid a list of business-friendly reforms, the highlights relevant to the building trades include: (a) creation of a “certified application preparer program” to streamline minimum impact wetlands applications; (b) a process for prompt and inexpensive resolution of conflicts between the state building code and fire code; and, (c) licensure reciprocity with other state jurisdictions for occupational or professional licenses. HB 1104 has been and will continue to be the subject of much debate, further amendment and tweaks as different or additional reform concepts are introduced to and removed from the conversation.
Generally speaking, and without knowledge of the full and final content of the proposed legislation, the NHHBA SUPPORTS passage of evolving HB 1104.

Relative to Voting on Variances

House Bill 1215, sponsored by Rep. Jim Belanger (R-Hollis), would require that zoning boards of adjustment vote separately on each of the five statutory elements of a variance application. Nearly identical to last year’s HB 86, which was vetoed by Governor Sununu, HB 1215 would override a municipality’s local process and impose standardized voting.
Since most modern development proposals require some form of zoning relief and/or variances, and since the process for considering variances is best left to local custom and staffing resources, the NHHBA OPPOSES passage of HB 1215.

Establishing a Committee to Examine the State’s Adoption of National Codes

House Bill 1254, sponsored by Rep. Steve Beaudoin (R-Rochester), would examine the state’s existing process for considering and adopting national building and life-safety codes. At present, national codes are considered and, potentially, adopted by act of the legislature. Meanwhile, the State Building Code Review Board (BCRB) and the State Fire Control Board (FCB) maintain subject matter jurisdiction over recommendations and local New Hampshire amendments. The process can be confusing for the regulated public, as was recently made evident by the BCRB’s and FCB’s strong recommendation in favor of the 2015 suite of national codes, and the legislature’s clear rejection of the same. As an effort to potentially “start over,” put all ideas on the table, and consider how best to incorporate cost/benefit analyses and input from knowledgeable and interested stakeholders, the NHHBA supports the establishment of a committee.
Therefore, the NHHBA SUPPORTS passage of HB 1254.

Establishing a Commission to Study Water-Dependent Structures Upon Public Waters

House Bill 1810, sponsored by Representative John Mullen (R-Middleton), would establish a legislative commission to consider and recommend changes to the permitting and enforcement process for freshwater docks, waterfront improvements and waterfront structures upon or immediately adjacent to non-tidal public waters. The Commission would consider issues such as size, length, setbacks, shape and coverage in the context of topics including the following: (a) individual property rights; (b) shared public usage; and, (c) public safety, recreation and economic interests.
Because permitting issues for water-dependent structures, beaches and docks are often intertwined with land development and shoreland homebuilding, the NHHBA SUPPORTS passage of HB 1810.

As the legislative year is just getting underway, many of these and other tracked bills will undergo debate, amendment, diversion or defeat as the formal consideration process unfolds. The fate of the above-mentioned bills, and others that may be of interest to the building trades, can be tracked using the New Hampshire General Court website at gencourt.state.nh.us. Members of the NHHBA are encouraged to take an active role in pending legislation affecting the homebuilding industry. Members should consider attending and offering testimony at public hearings relating to pending legislation.


Ari B. Pollack is an attorney and lobbyist employed with Gallagher, Callahan and Gartrell, P.C. in Concord, New Hampshire. Ari is the long-time lobbyist for the New Hampshire Homebuilders Association, and focuses his private practice on New Hampshire land use development, state and local land and environmental permitting, and construction law.

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

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Ari Pollack
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Ari Pollack at 603-545-3630.

Related practice areas:
Shoreland Development
Real Estate Development
Environmental Law

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