NH Supreme Court decision sends Swanzey affordable-housing project back to ZBA

Aug. 17—The N.H. Supreme Court ruled Tuesday that the Swanzey Zoning Board of Adjustment erred when it rejected an affordable housing complex for seniors proposed in the town's business district in 2020.

The decision, which upholds an earlier decision by a Cheshire County Superior County judge, sends the question of whether the 76-unit project qualifies for a special exception back to the town board.

Many local residents expressed opposition to the project when the Walpole-based Avanru Development Group Ltd. brought the proposal for the four-story apartment building at 115 Homestead Highway (Route 32) before the board more than two years ago.

Jack Franks, Avanru's CEO, said in a phone interview Tuesday that he is "looking forward to a fair, equitable process moving forward."

"With vacancy rates less than one percent statewide, affordable housing and senior housing is more important than ever," Franks said. "This senior housing facility will go a long way in assisting those seniors who are looking for quality affordable housing."

Avanru has another housing project already underway in town, constructing 84 units of workforce housing on Route 10.

Swanzey Town Administrator Michael Branley was unreachable for comment Tuesday. Keith Thibault, the chairman of the zoning board, also could not be reached for comment.

The 2.5-acre site near Keene Dillant-Hopkins Airport where the project is proposed is in the business zone, which permits multifamily dwellings by special exception. That means for a project to go forward, the zoning board must determine it meets certain criteria.

The board in 2020 found that the application did not meet two of four criteria.

First, board members held that the proposed development was not similar to a use already authorized in the district. And second, based on testimony of nearby residents who said the building could alter the area's natural character, the board also held it would be "offensive" to the neighborhood, using a term from the town zoning ordinance.

Representing Swanzey in oral arguments before the court last winter, Concord-based attorney Michael Courtney said local land-use rules — requiring, for a special exception, that a development wouldn't be "injurious, obnoxious, or offensive" to the surrounding area — are meant to weigh community input. Therefore, the zoning board was justified in rejecting the project because residents felt it would sully that area's natural features, Courtney argued.

"We want greenage, we don't want overcrowded," he said. "We want people to drive by our town and not feel like you're in downtown Manchester."

But the Supreme Court in its decision Tuesday unanimously rejected the argument that the project could be considered "offensive" based on its aesthetics alone.

"Equating 'offensive' with 'unpopular' is not consonant with the overall design and purpose of the Ordinance," the decision, which involved four of the five Supreme Court justices, states.

The decision notes that the town's zoning ordinance deems multi-family dwelling use in the business district to be "essentially desirable" but requires that the board consider the proposed location and whether such a use would present "unique problems" there.

"The ZBA did not identify or address any unique problems that may be inherent in, or associated with, the multi-family dwelling use," the decision states.

Moreover, the proposal complies with all of the design requirements in the zoning ordinance and the exact structure could be built by right — without the need for a special exception — if it were a hotel or nursing home, according to the Supreme Court decision.

On whether the zoning board erred on the first criteria, which requires that "a proposed use is similar to one or more of the uses already authorized in that district," the Supreme Court was divided 2-2. (An equally divided court affirms the decision of a lower court, according to case law cited in the Tuesday ruling.)

Avanru has previously argued that the proposed project is similar to a nursing home or a hotel, both of which are allowed in the business district without the need for a special exception.

However, the zoning board compared it to other multi-family dwelling projects in the business district, concluding, based on "density setbacks and utilization of the land," that the proposed project was not similar to previously approved multi-family dwelling projects in the district.

The superior court in December 2021 ruled that the zoning board should have compared Avanru's project only to those uses permitted by right in the business district, and therefore erred when it considered previously approved exception projects.

Supreme Court Justices Gary Hicks and James Bassett would have reversed the lower court's decision based on their interpretation of the phrase "uses already authorized" in the ordinance, according to the Tuesday ruling, but Justices Gordon MacDonald and Patrick Donovan would affirm the lower court's decision.

Hicks and Bassett argue, according to the decision, that had Swanzey meant for the ordinance to compare project proposals only to the 14 uses permitted in the district without a special exception, it would have simply stated "permitted" uses, rather than the broader "uses already authorized."

MacDonald and Donovan, on the other hand, argue that a special exception relates to a specific use in a specific location. Therefore, they contend in the decision, a location-specific examination renders comparisons between special exception projects immaterial.

While the Supreme Court ruling is a win for Avanru, the decision unanimously upheld a decision by the lower court not to grant the developers a "builder's remedy." Such a remedy would have given Avanru the right to complete the project without having to return to the zoning board, according to the decision.

Ryan Spencer can be reached at 352-1234, extension 1412, or rspencer@keenesentinel.com. Follow him on Twitter at @rspencerKS