NH Supreme Court hears arguments in feud over Swanzey senior-housing proposal – The Keene Sentinel

CONCORD — What does the word “offensive” mean?

New Hampshire’s top jurists are poised to take a crack at the question, following oral arguments Tuesday in a state Supreme Court case involving plans to build 76 affordable units for seniors on Old Homestead Highway in Swanzey.

At the hearing, held in person and broadcast online, justices questioned whether town zoning officials had erred by considering public objections to that project when they denied it a special exception last year.

Representing Swanzey before the court, Concord-based attorney Michael P. 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. The town’s zoning board was therefore justified, Courtney argued, in rejecting the 115 Old Homestead Highway (Route 32) apartments because residents felt they would sully that area’s rural features.

“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.”

Swanzey residents had criticized the four-story apartment complex, between Keene Dillant-Hopkins Airport and Wilson Pond, which they said would tower over the shorter buildings nearby and generate more traffic.

To grant a special exception, the zoning board must determine that a development would be similar to an authorized use in a given area, that it wouldn’t harm property values or be offensive to the neighborhood, that it wouldn’t be a nuisance or hazard to vehicles or pedestrians, and that facilities would be provided to allow for its proper use. Board members found that the Old Homestead Highway project failed the first two prongs.

In his ruling last year, though, Judge David Ruoff said the board erred by comparing the development — which would be in Swanzey’s business zoning district, where multi-family dwellings typically aren’t allowed — to projects that had been granted special exceptions, rather than authorized uses in that area.

Ruoff vacated and remanded the zoning board’s decision, giving it another chance to rule on the matter. Instead, the board appealed his order to the N.H. Supreme Court early this year.

In his arguments to the justices Tuesday, J.P. Harris, an attorney for the Walpole-based Avanru Development Group, agreed with Ruoff that it’s inappropriate for zoning officials to consider public opinion on the aesthetics of a certain project.

Making decisions based on community input — especially on a development’s appearance — essentially turns zoning board hearings into a popularity contest,” Harris said. Instead, he said the board should stick to a plain-text reading of Swanzey’s land-use rules, which don’t define “offensive” but say no building should harm neighbors due to noise, odor, lights, smoke, vibrations or other irritants.

“When you combine them all together, they do provide some guidance that’s articulated in the zoning ordinance, that my client met,” he said.

Harris added that Swanzey’s zoning board should have found the Avanru proposal similar to uses already authorized in the business district, calling multi-family housing a “close cousin” of nursing homes, which are allowed there.

Board members had argued that the apartment complex is unlike other developments that have gotten special exceptions in the town’s business district. But referring to the list of automatically eligible uses, rather than projects that were individually approved, would create an easier standard and avoid the “disparate treatment that Avanru suffered,” according to Harris.

The court seemed curious about that argument, with Associate Justice James P. Bassett noting that because Swanzey requires a special exception for multi-family housing in some places, the town seems to want specific justification for that growth.

That process also lets the zoning board consider how a proposed development would fit into the character of a neighborhood, Courtney, the attorney for Swanzey, said. Even though the Avanru project would comply with technical criteria — including height restrictions, distance from the road and available parking — Courtney said board members should be able to account for broader factors, too.

“Just because they meet the requirements for a four-story building does not mean they get the exception,” he said. “They still have to go through the criteria.”

But claiming the zoning board “jumped its jurisdictional boundary,” Harris said Swanzey’s planning board has more authority to consider public input, especially on aesthetics, than the zoning board. He asked the Supreme Court to send the Avanru project directly to that panel rather than remanding it.

A decision in the case is unlikely until next year.

Matthew Bachler, Swanzey’s director of planning and economic development, said after the hearing Tuesday that town officials still feel the zoning board acted within its authority on the Avanru proposal. Bachler said he’s hopeful the high court will uphold board members’ initial ruling.

“We continue to stand by the decision the zoning board made in the case,” he said.

Echoing remarks he’s made in the past, though, Avanru President and CEO Jack Franks said he feels the zoning board was prejudiced against his company because the Old Homestead Highway apartments would be rented to low-income seniors.

“I don’t think there is any good reason, ever, to deny one of the most vulnerable protected classes of people — our seniors — housing,” he said Tuesday afternoon.

A separate Avanru project to create 84 units on Route 10, which Swanzey officials approved earlier this year, remains in the financing phase, according to Franks. And the company would proceed with both developments if its Old Homestead Highway plans are eventually OK’d, he said.

The Supreme Court’s decision could produce a much larger housing boom, Franks said, if it rules broadly to limit local officials’ authority to spurn residential growth.

“This issue comes up all over the state of New Hampshire,” he said. “Until developers like me stand up and push back on these … municipalities that willfully discriminate against development projects they don’t like, this kind of behavior will continue to happen.”