Reasons Not to Amend Our Increased Density Workforce Housing Ordinance

The Planning Board is considering placing an amendment to the Increased Density Workforce Housing requirements of the Hollis Zoning ordinance. I strongly recommend against amending these sections in 2021. I will address the problems with changing the Increased Density Workforce Housing ordinance below.  Our Town planner has made a claim that some of the changes implemented to our Increased Density Workforce Housing ordinance in 2020 are not compliant with state RSA.  This legal claim is being used without justification to push relaxation of our ordinance.

1. Town’s Legal Review Withheld from Its Residents

The planner has claimed that his position is supported by a letter the Town Attorney provided on the subject. On several occasions I have requested this letter so that the planning board and town residents can make informed decisions regarding necessary changes if any. Inexplicably, this information has been withheld and yet we are asked to blindly accept changes as being “required”

If changes are needed why not support the argument with citations and facts. At the October 6th Joint meeting with the ZBA and Planning Board a ZBA member made a similar request which has not been addressed. It seems that the town attorney should be asked to specifically identify what if anything contradicts state law. The town planner has not provided legal support for his claims and is not qualified to do so. I am requesting that the planning board table further discussions unless and until the legal review is available. Why should the process continue under these circumstances?

2. Summary of Increased Density Workforce Housing and Present Ordinance Compliance

Below is an objective summary of the requirements of the state’s increased density Workforce Housing statues. The entire statutes are available on the state website for your review. The first sentence of the increased density Workforce Housing Statute (RSA 674:59) states the following: “In every municipality that exercises the power to adopt land use ordinances and regulations such ordinances and regulations shall provide reasonable and realistic opportunities for the development of workforce housing including rental multifamily housing.

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It goes on to say: This paragraph may be satisfied by the adoption of inclusionary zoning as defined in RSA 674:21, IV(a)

The referenced language of RSA 674:21, IV(a) below defines inclusionary zoning as: “Inclusionary zoning is land use regulations which provide a voluntary incentive or benefit to a property owner in order to induce units which are affordable to persons of low and moderate income.”

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For example, our density bonus of 10% additional units if WFH is produced or our Multi-family WFH zone.The state guidebook Meeting the Workforce Housing Challenge serves to inform municipalities on the legal implementation of the Increased Density Workforce Housing Statutes.  It indicates that compliance is achieved if: “Workforce Housing is economically viable in the majority of residentially zoned land and at least 5 units per structure are allowed somewhere”. Present Hollis Zoning Ordinance clearly meets this requirement.

3. The Present 100ft Buffer Is Justified and Economically Viable

A claim was made that the 100 ft. buffer in the multifamily zone is somehow in conflict with the statute and induces costs on the developer, but the ordinance is written in a way that allows density necessary to be affordable so how is this not compliant with state RSA? I’m not aware of anything in state RSA that disallows such a buffer. If such a statute exists, the town deserves a citation.  In fact, the buffer is very reasonable considering the intense land use allowed in the multifamily zone. There are other 100-foot buffers implemented in Hollis Ordinance.  100-foot buffers are applied to wetlands as well as to scenic roads. Considering the density of the multifamily zone, a 100-foot buffer certainly allows for viable development of multifamily units. 

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As an example, the development on Old Runnels bridge Rd has 32 units even if all units were valued at only 350K the gross sale of the development is over 11 Million dollars. It seems that with gross sales of this level, a 100-foot buffer would certainly be economically viable.

4. Precise Requirements of State Law and NH Supreme Court Suncoast vs Windham Case

State Law Requires that workforce Housing be economically viable to construct in the majority of residentially zoned land and at least 5 units per structure are allowed somewhere.  What specifically about our present ordinance does not comply?  The town planner has cited the NH Supreme Court case Suncoast vs Windham (available online) in support of his argument but the decision in this case points out that a town must only provide “reasonable and realistic opportunities for workforce housing” Which our present ordinance certainly does.  Why hasn’t this been explained to you?

5. Builder’s Remedy Does Not Eliminate Local Control

Another misleading argument is that the threat of a builder’s remedy somehow eliminates the town’s influence on other project aspects.  It is true that in the case of Suncoast vs Windham the NH supreme court issued a builder’s remedy to allow the construction of 5 units however the court specifically remanded the project back to the planning board for approval of all other project aspects.

A direct quote from the decision is included below.  Bold emphasis added.

“The Court GRANTS Sun Coast's request for a "builder's remedy" as follows: Sun Coast shall be permitted to build its project without meeting the pertinent zoning requirement, but it must now return to the Planning Board (which shall accept its site plan/subdivision applications as complete) and obtain from this Board requisite approvals.”

 

The town planner has often claimed that a builder’s remedy is a terrible outcome to be avoided at all costs.  As I have demonstrated, his claim is not founded and is misleading.  The process of a builder’s remedy still allows the town input on other project aspects.  Why should we weaken the zoning ordinance we have in fear of this?

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Recommendation Relating to Amending the Increased Density Workforce Housing Ordinance

In conclusion, please ask the planning board to question all aspects of potential changes to the zoning ordinance.  Please request that no further action be taken until an explanation of why a change is needed is provided and justified.  The town’s residents deserve a legal analysis of our existing ordinance by a qualified lawyer.  We all deserve a transparent process and justification of any proposed changes.