Before delving further, it’s important to recognize that our focus is on a specific subset of land use board members who deliberately oppose various forms of housing development in New Hampshire. We acknowledge that many of New Hampshire’s municipal boards are composed of dedicated community members who empathize with the housing crisis and seek positive solutions. Our intent is to shed light on the challenges posed by a specific, yet pervasive problem without overshadowing the genuine efforts of the many upstanding individuals serving on land use boards across the state.

New Hampshire is currently facing a severe shortage of housing, particularly in the workforce housing sector. The numbers are alarming: we’re short 23,000 housing units now, and projections indicate that by 2040, this shortage could skyrocket to a staggering 90,000 units. Adding to the complexity, New Hampshire holds the distinction of having some of the most stringent building and zoning regulations in the nation, ranked fourth highest according to a study from the Josiah Bartlett Center for Public Policy. Coupled with the state’s strong affinity for local control, little to no safeguards exist to check the power of land use boards outside of the court system. Moreover, when these boards act with bad faith and are brought before the court, the extent of their repercussions often amounts to nothing more than a reprimand. Thus, land use boards composed of development opponents wield the power to impede housing projects at their discretion, as no tangible consequences exist to deter this sort of behavior. As a result, the lack of accountability measures enables and perpetuates a culture of impunity on these boards, obstructing the timely resolution of land use disputes and impeding the development of critically needed housing resources across the state.

Because of the lack of monetary consequences for the intentional obstruction of development, land use board members who are staunchly against development have the capacity to thwart its progress in a number of ways. Misbehavior takes shape when board members intentionally prolong housing approvals processes for unjustified reasons, require unreasonable and unfeasible conditions for development, and persistently reject proposals until developers either abandon them or face financial distress.

As it stands, the only mechanism to hold miscreant boards accountable for bad faith behavior, gross negligence, or malice is a 6-8 month (at minimum) legal process at the expense of developers’ time and resources. The typical outcome of such efforts – the Housing Appeals Board (HAB) issues a remand to the same erring boards in hopes that they will act differently. Relying solely on the court system is an inefficient way to rectify land use boards’ malfeasance. Court processes are time-consuming, costly, and often result in mere requests for boards to behave better without substantial consequences.

With a housing crisis as severe as New Hampshire’s, we cannot afford to wait 6-8 months for every land use-induced development obstacle to be rectified by a court. We need mechanisms in place at the local level, not to override local control, but to ensure that board members operate within the parameters set forth by the law instead of personal biases against development.

While imposing damages on towns due to miscreant behavior might raise concerns about volunteer participation and local control, it’s crucial to strike a balance that holds boards accountable while maintaining the New Hampshire ethos of local character and governance. Penalties for miscreant behavior don’t undermine the spirit of volunteering or the concept of local governance; rather, they discourage misuse of power and promote responsible actions among board members, ensuring that local decisions align with the state’s broader goals and uphold fundamental principles of fairness and due process. For those concerned about the prospect of board members refraining from seeking local office due to concerns about triggering lawsuits against their town, our stance is clear: individuals who are reluctant to take up office due to uncertainties about legal compliance should not occupy decision-making positions in the first place – especially when such positions decide whether a community has access to resources as essential as housing.

As outlined in our Zoning Board Appeal to the Housing Appeals Board, our project’s eligibility for monetary damages arises from the unprecedented level of bad faith behavior and gross negligence exhibited by the Epping Town Board throughout its approvals process, but particularly with respect to the Town Zoning Board. While it is true that damages have not been awarded in court before, the Town Board’s actions go far beyond ordinary negligence; their reckless handling of the sewer infrastructure, their blatant disregard for expert testimony, and their consistent pattern of delaying and hindering the progress of our critically needed workforce housing project indicate a level of negligence that demands redress. By seeking monetary damages, we aim to establish a precedent that holds accountable those responsible for unjustly obstructing housing workforce housing development, creating a powerful deterrent against future misconduct in housing approvals processes across the state. For a comprehensive overview of our project and its approvals process as outlined in our Appeal, click here.