Legislative Update Feb. 14, 2023

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Home is where the heart is

(As long as it has municipal water and sewer)

House Bill 44 would require a municipality to allow the owner of any single-family lot in a residential zoned district served by municipal water and sewer to construct up to four residential dwelling units, as a matter of right.  

Importantly, the lot and yard standards, setbacks, septic and sewage requirements, adequate water supply, parking requirements, and other municipal ordinances would still have to be met by the owner.  And all relevant building code and fire code requirements would also still apply.

Last week, the House Municipal and County Committee voted 11-9 to recommend to the full House of Representatives that the bill should pass (the motion is “ought to pass” or OTP). 

NHAR testified in favor of the bill, arguing that property owners should have the right to determine how best to utilize their private property as long as that use does not impact the health or safety of the community. HB 44 ensures that municipalities retain all of their existing authority to protect health and safety concerns but grants the private property owner more authority over the use of their own land. 

In the ongoing discussion on how best to balance the needs for governmental control over land use and the protection of private property rights, NHAR believes this bill tips the scales ever so slightly towards the property owner.

More rural communities, without municipal water and sewer, would not be impacted by HB 44. The new law is similar to one that went into effect in Maine earlier this year. 

The full House of Representatives is expected to vote on the bill later this month.

NHDES legislation has no love for 
Supreme Court precedent on accessory structures

In 2020, the New Hampshire Supreme Court sided with property owners in Moultonborough over the NH Department of Environmental Services (NHDES) in a case where the owners were trying to rebuild a boathouse which had collapsed on their waterfront property. 

The town had granted approval, and the owners had almost completed construction, when NHDES issued a Letter of Deficiency informing them that the structure was 27 feet tall, and therefore not compliant with DES regulations. 

DES argued that the structure was an “accessory structure” as defined by RSA 483-B:4, II and that DES therefore had the authority to restrict the height of accessory structures pursuant to RSA 483-B:17, IV. DES also argued that the structure was not made “more nearly conforming” than the original nonconforming structure. 

However, the Supreme Court ruled that DES was incorrect in its interpretation and the statute did not grant NHDES such authority.

Senate Bill 229 is, among other things, an attempt by NHDES to eliminate the statutory grounds which the Supreme Court used in its decision. However, the NHDES did not indicate such at the hearing, instead mentioning to the committee that there “has been supposition that the language could mean that NHDES only has authority to regulate small accessory structures and not large ones.” They failed to mention that this “supposition” which “could mean” DES doesn’t have authority was, in fact,  made by the NH Supreme Court. 

NHAR has raised concerns about this change and has asked for sections of the bill related to accessory structures to be removed so a more thorough discussion relative to it merits can be had by the Senate Committee.

Roses are red,
Violets are blue,
ADUs are even better
when property owners are allowed two

The current mandate on NH municipalities to require accessory dwelling units in all residential zones (RSA 674:72) has been in existence for nearly six years. None of the concerns raised by towns back in 2017 – that the law would create overly dense neighborhoods, impact parking and overtax sewer and water – have occurred.

House Bill 423 would mandate that municipalities allow a property owner a detached accessory dwelling unit as well as an attached ADU. The property owner would have to adhere to all existing ordinances to ensure adequate provisions for water supply and sewage disposal; as well as any setback requirements. 

NHAR testified in favor of the bill. The House will take action on the bill in the next several weeks.

Quote of the Week

We’re headed in the right direction, but we need to be permitting a lot more.  A little bit of housing permitting activity from every community can help us get out of the crisis.” 

Noah Hodgetts, Principal Planner
New Hampshire Department of Business & Economic Affairs

NHAR’s legislative chart can be found here.
For more information, contact New Hampshire Realtors CEO Bob Quinn: bob@nhar.com.

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