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THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

Housing Appeals Board

No. 2021-0570

 APPEAL OF TOWN OF AMHERST

(New Hampshire Housing Appeals Board)

Argued: September 15, 2022

Opinion Issued: January 18, 2023

Cronin, Bisson & Zalinsky, P.C., of Manchester (Christopher B. Drescher

on the brief and orally), for the petitioner.

Prunier & Prolman, P.A., of Nashua (Gerald R. Prunier on the brief and 

orally), for the respondents.

HICKS, J. The petitioner, the Town of Amherst (Town), appeals orders of 

the Housing Appeals Board (HAB) vacating the denial by the Town’s planning 

board (Board) of subdivision and site plan approval sought by the respondents, 

Migrela Realty Trust II and GAM Realty Trust (collectively, the Applicant). We 

affirm.

The following facts were recited in the HAB’s orders or relate the contents 

of documents in the record. In November 2020, the Applicant filed a 

subdivision/site plan approval application with the Board for 54 age-restricted 

and unrestricted housing units. The Applicant previously had been granted a 
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conditional use permit (CUP) for “an increased project density” of up to 54 

units under the Town’s since-repealed Integrated Innovative Housing 

Ordinance (IIHO). During the review process with respect to the 

subdivision/site plan application, the project’s density was reduced from 54 to 

49 units. The composition of age-restricted and unrestricted units was also 

modified, with the final plan designating 14 units as age-restricted, 65-andolder units and the remaining 35 units as unrestricted.

In April 2021, the Board denied the subdivision/site plan application for 

reasons that can be grouped into two general categories. First, the Board 

perceived conflicts between the proposed project and federal law. Specifically, 

in apparent reference to fair housing requirements, the denial stated:

1. The application does not require that all residents of the age restricted 

units be 62 or older. It requires only that one member of that 

household be 62 or older. . . .

2. There is a single condominium association for both the senior 

housing and for the unrestricted housing. While these are federal 

requirements, the Planning Board in the first instance is responsible 

for applying the law and must understand it and interpret it. If there 

are going to be age restricted units mixed with non-age restricted 

units there must be some separation, whether that be physical, 

whether that be a separate condominium association, some type of 

separation. That does not exist here. This is a particular concern in 

this instance because only 14 out of the 49 units are elderly housing. 

14 is a minority of the units . . . . They are at the will of the majority 

of the unrestricted units. That is not consistent with what the 

federal law envisioned when it said over 62 units must be occupied 

solely by over 62 persons.

3. Article V of the condominium documents allows those documents to 

be amended by the owners with a 67% vote.

See, e.g., RSA 354-A:15, VIII (2022) (exempting “housing for older persons” 

from state fair housing statute’s provisions regarding familial status 

discrimination); 42 U.S.C. § 3607(b) (2018) (exempting “housing for older 

persons” from Federal Fair Housing Act provisions regarding familial status 

discrimination).

The second reason for the denial was that “the proposed design does not 

protect and preserve the rural aesthetic the Town has consistently valued, as is 

required by Section 4.16A of the Zoning Ordinance.” The Applicant appealed to 

the HAB, which vacated the Board’s decision and remanded the matter to the
3

Board.

1 The Town moved for reconsideration, which the HAB denied in a 

second written order. The Town now appeals both orders.

“Our review of the HAB’s decision is governed by RSA chapter 541.” 

Appeal of Chichester Commons, LLC, 175 N.H. ___, ___ (decided Sept. 2, 2022)

(slip op. at 4); see RSA 679:15 (Supp. 2021). Accordingly, we will not set aside 

the HAB’s order, “except for errors of law, unless [we are] satisfied, by a clear 

preponderance of the evidence before [us], that such order is unjust or 

unreasonable.” RSA 541:13 (2021). The HAB’s factual findings are “deemed to 

be prima facie lawful and reasonable.” Id. “When reviewing the HAB’s 

findings, our task is not to determine whether we would have found differently 

or to reweigh the evidence, but, rather, to determine whether the HAB’s 

findings are supported by competent evidence in the record.” Appeal of 

Chichester Commons, LLC, 175 N.H. at ___ (slip op. at 4). The interpretation of 

a tribunal’s order presents a question of law, which we review de novo. Guy v. 

Town of Temple, 157 N.H. 642, 649 (2008).

The HAB’s review of a planning board’s decision is similarly governed by 

statute. See Appeal of Chichester Commons, LLC, 175 N.H. at ___ (slip op. at 

4). The HAB “shall not reverse or modify a decision except for errors of law or if 

the board is persuaded by the balance of probabilities, on the evidence before 

it, that said decision is unreasonable.” RSA 679:9, II (Supp. 2021).

The Town first contends that the HAB “erred in vacating and remanding 

the Board’s denial of the Applicant’s Subdivision Application because the 

denial, in part, was reasonable in light of the Applicant’s continued and 

uncontroverted failure to comply with the elderly housing law.” (Bolding 

omitted.) The Town explains that “the last version of the [Applicant’s] proposal 

permitted younger persons to reside within an age-restricted housing unit, 

despite . . . that such an arrangement is in contravention of federal and state 

law.”

 

1 The HAB gave the Board and the Applicant three specific directives on remand. The first two, 

regarding a collaborative discussion of state and federal age-restricted housing rules and the 

Applicant’s provision of condominium documents reasonably addressing the Board’s concerns 

over mixed-age housing, are noted later in this opinion. The third stated:

The Planning Board shall complete its review of the foregoing [i.e., the 

condominium documents] prior to any new vote, which vote may be: a) a denial 

based on legitimate, unsatisfied planning board requests, non-compliance with 

zoning ordinances or planning regulations, and valid concerns not addressed 

herein; or, b) an approval which can include customary and reasonable approval 

conditions. 

Nothing in this opinion is intended to alter these directives.
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The HAB found that the Board’s denial of subdivision/site plan approval 

on the basis of “age concerns [was] clearly unreasonable, since the IIHO 

contemplated higher density, age-restricted housing.” The HAB acknowledged 

that “compliance with state and federal elderly housing rules” remained an 

issue, and determined that “this must be a plan condition should the project be 

approved.” Accordingly, the HAB directed, among other things, that on 

remand:

The Planning Board and Applicant will engage in a collaborative 

discussion regarding state and federal age-restriction rules 

associated with the proposed, 14, age-restricted units within a 49-

unit housing project; 

. . . The Applicant shall provide complete RSA 365-B condominium 

documents reasonably addressing the Planning Board’s mixed-age 

concerns . . . .

We are not persuaded, “by a clear preponderance of the evidence before 

[us], that such order is unjust or unreasonable.” RSA 541:13. As the HAB 

noted, the Applicant had been granted a CUP for a project that included “an 

elderly component.” The HAB determined that compliance with applicable 

federal and state statutes could be “addressed by the condominium 

documents” and noted that the Board “never reviewed final condominium 

documents which ordinarily is a condition of approval.” 

The Town contends that the HAB’s statement as to Town Counsel’s 

review is “incorrect” and asserts “[t]he record reflects that Town [C]ounsel was 

asked to advise on the elderly housing law.” The record supports the HAB’s 

finding. The staff report created by the Town’s Community Development 

Director for the April 7, 2021 Board meeting states that the revised Declaration 

of Condominium and the Declaration of Covenants, Easements and 

Restrictions had been sent to Town Counsel and the cost for review had been 

paid. The staff report further states that “Town Counsel will begin his review 

and report back to the Board when done.” At the April 7 meeting, the civil 

engineer acting as the Applicant’s agent noted that the legal documents were 

with Town Counsel for review and stated that “[t]he applicant will be happy to

address any questions that arise from this review.” Following the Board’s 

denial of the application at that meeting, the Town returned the Applicant’s 

check for the cost of Town Counsel’s review with a letter explaining that “review 

had not yet taken place.”

The Town nevertheless argues that “[g]iven the Applicant’s clear 

misunderstanding of the law, the Planning Board was able to determine for 

[itself] that the condominium documents were . . . unlawful without having 

legal counsel officially review said documents.” The HAB noted, however, that 

Town Counsel’s review and approval of proposed condominium documents is 
5

“customary practice” and “[o]rdinarily, a condition of site/subdivision 

approval.” The HAB further explained that the practice ensures “that the 

Applicant’s proposal addresses factors unique to the specific development 

proposal. It also allows the condominium documents to address final 

conditions in a Planning Board approval without the Applicant continuously 

guessing at what may be relevant and necessary for inclusion.” The HAB was 

well aware that age-restricted housing must comply with federal and state 

statutory requirements. It observed, however, that “along with the Applicant, 

the Town has an obligation to pin down what was required.”

The Town does not challenge the HAB’s finding that review by Town 

Counsel is “[o]rdinarily, a condition of site/subdivision approval.” We cannot 

say that it was unjust or unreasonable for the HAB to conclude that the 

Board’s failure to follow this customary practice, and instead, to deny the 

application based on its own concerns about legal compliance, was 

unreasonable. See RSA 541:13; RSA 679:9, II.

The Town argues, however, that the Board is obligated by statute “to rule

on an application within 65 days and since the [Applicant] consumed that time 

frame and more by misapplying federal and state elderly housing laws and 

incorrectly proclaim[ing] on the record that they satisfied the requirements of 

elderly housing law,” the Board “properly decided to deny the application.” See

RSA 676:4, I(c) (Supp. 2022). We disagree. The HAB noted that the certified 

record reflected ongoing discussion between the parties about federal and state 

fair housing law requirements, continuing confusion over the age-restricted 

aspect of the project, and a mutual failure to effectively collaborate. Based 

upon our review of the record, this finding is supported by competent evidence. 

See Appeal of Chichester Commons, LLC, 175 N.H. at ___ (slip op. at 4). 

Accordingly, we reject the Town’s assertion that the Applicant was solely at 

fault for “consum[ing] [the statutory] time frame.” 

Moreover, the record reflects that the Applicant had previously agreed to 

extend the 65-day deadline. Although a Board member stated that the Board’s 

March 3, 2021 vote to table the application to its next meeting was “intended to 

make it clear that this continuance is the applicant’s final opportunity,” the 

Town makes no argument that it was legally prohibited from accepting another 

waiver of the 65-day deadline. See RSA 676:4, I(f) (Supp. 2022) (“The applicant 

may waive the requirement for planning board action within the time periods 

specified in subparagraph (c) and consent to such extension as may be 

mutually agreeable.”). Accordingly, we are not persuaded that an impending 

deadline rendered the Board’s denial “proper[].” 

The Town alleges a number of other errors by the HAB, including that it: 

(1) “misconstrued that the denial relative to the disagreement over elderly 

housing was based on how many units would be designated as elderly 

housing”; (2) “misinterpreted the significance” of a case relied upon by the 
6

Town; and (3) “misguidedly opined that state law does not prohibit a mix of 

age-restricted units and nonrestrictive housing units” when “[t]he issue was 

not the ‘mixing of the units’ but rather the proposed plan, as presented, did not 

have separate governing controls for the age-restricted housing.” The Town 

also points out, as an additional defect in the Applicant’s proposed 

condominium documents, that because they “allowed for amendments to be 

made . . . by 2/3 vote of condominium members,” and the project designated 

only 14 out of 49 units as age-restricted, those units constituted “a minority 

incapable of preventing changes to the condominium association.” 

None of these alleged errors bears upon the reasonableness of the HAB’s 

decision. The HAB did not conclude that the proposed condominium 

documents complied with all applicable laws. Rather, it found the Board’s 

denial based upon concerns about compliance to be unreasonable when, 

according to customary practice, the condominium documents would be 

reviewed by Town Counsel and his approval of them would be made a condition 

of subdivision/site plan approval, a review that the Town did not pursue.

The Town next challenges the HAB’s finding that the “rural aesthetic” 

basis for the Board’s denial was also unreasonable. The HAB found, “by a 

preponderance of the evidence, that it was unreasonable to deny this project 

based on non-compliance with ‘rural aesthetic’” because the applicable factors 

related to rural character or aesthetic “were already considered in granting the 

Section 4.16 CUP density” of up to 54 units. Specifically, the HAB noted that 

in its application for a CUP, the Applicant had to prove that a number of 

conditions had been met, including:

[1] That the property in question is in conformance with the 

dimensional requirements of the zone, or meets Planning Board 

standards for the reduction in dimensional requirements, and 

that the proposed use is consistent with the Amherst Master 

Plan. . . .

. . . .

[3] That there will be no significant adverse impacts resulting from 

the proposed use upon the public health, safety, and general 

welfare of the neighborhood and the Town of Amherst.

[4] That the proposed use will not be more objectionable to nearby

properties by reason of noise, fumes, vibration, or inappropriate 

lighting than any use of the property permitted under the 

existing zoning district ordinances.
7

It then reasoned that “[i]f the first, third, and fourth CUP conditions are not

met, the rural aesthetic of the Town could be impacted.” Accordingly, it ruled 

that the “[r]ural aesthetic is not violated as a result of the 04 January 2019 

CUP approval.” 

Moreover, the HAB observed that in denying the application, the Board 

did not focus on the “elements of ‘rural character’” put forth by the Town on 

reconsideration, but, rather, focused on density. The Board’s decision itself 

supports this finding, as it stated that the 49 units proposed are “too much 

and [that] is probably an insurmountable hurdle for this applicant to overcome 

and at the same time preserve a rural aesthetic.” As the HAB reasonably 

concluded, however, “[t]he ‘density’ concern left the station when the CUP for 

up to 54 units was approved in accordance with the then-existing IIHO.”

The Town nevertheless contends, as it previously argued in its motion for 

reconsideration, that the impact on “rural character” due to the proposed 

project’s density could again be considered at the final approval stage under 

Section 4.17(A) of the Town’s zoning ordinance. The Town argues that the HAB 

erred in concluding that Section 4.17 was inapplicable to the final density 

determination in this case. To the contrary, the record reflects that the CUP 

application was submitted under the IIHO, which is Section 4.16 of the zoning 

ordinance, not under the Planned Residential Development provisions of 

Section 4.17. Accordingly, we find no error, nor can we conclude that the 

HAB’s ruling on this issue was unjust or unreasonable. See RSA 541:13.

The Town also contends that the HAB “incorrectly claim[ed] that there is 

no ‘good definition’ of ‘rural aesthetic’ or ‘rural character’ contained in” the 

applicable sections of the Town’s zoning ordinance. The Town argues that 

Section 4.16, the IIHO provision, refers to the Town’s subdivision regulations 

“which include a list of factors to consider that pertain to ‘rural character.’”

(Bolding omitted.) Specifically, the Town notes that Section 201.2 of the 

subdivision regulations recites the objective “[t]o maintain rural character, 

preserving farmland, forests, grasslands, wetlands, and maintaining rural 

viewscapes.” 

The regulations’ objectives, however, also further the stated purpose “to 

advance the goals stated in the Master Plan.” As the HAB concluded, 

compliance with the Master Plan was considered at the CUP approval stage. 

We reject the Town’s contention that the IIHO provision stating that “[a]ll IIHO 

projects are subject to the . . . Subdivision and Non-Residential Site Plan 

Regulations” somehow provides the Town an opportunity to reconsider 

determinations made when it granted the CUP, including determinations 

related to a “rural aesthetic.”

In any event, the HAB’s concerns over the lack of an “express definition” 

of “rural aesthetic” ultimately were not essential to its decision. Although the 
8

HAB stated that “[i]n addition to the foregoing, any detailed analysis of rural 

aesthetic is hampered by the fact that there is no express definition of the 

concept within the Town Zoning Ordinance or Planning Regulations,” that 

observation was, as the introductory language makes clear, merely 

supplemental or alternative to its ruling that the 2019 CUP approval 

demonstrated satisfaction of the “rural aesthetic” concept. In other words, the 

HAB observed that “[d]enying a project using the undefined concept of ‘rural 

aesthetics’ is misplaced,” but nevertheless concluded that “the grant of the CUP 

‘for up to 54 units’ satisfied this ‘undefined concept.’” Having found no error 

with respect to the HAB’s ruling that ‘[r]ural aesthetic is not violated as a result 

of the 04 January 2019 CUP approval,” we need not address this argument 

further. 

Finally, the Town argues that the HAB erred by substituting its views for 

those of the Board. It asserts that the HAB failed to accord the Board’s 

decision proper deference and “disregarded the Planning Board’s well-reasoned 

findings.” Instead, according to the Town, the HAB “reviewed the Certified 

Record and came to its own conclusion.”

The Town cites no concrete evidence of the HAB’s failure to follow its 

statutory standard of review. Rather, the Town vaguely asserts:

There was nothing unlawful or unreasonable in the Planning 

Board’s decision-making as there was ample discussion and 

evidence in the eight (8) volumes and five (5) years’ worth of 

material to demonstrate that the Planning Board’s denial was 

based on facts and said facts’ application to the ordinance, state 

law, and federal law. 

The Town has failed to demonstrate error. As discussed above, the HAB 

reasonably determined that the Board’s articulated grounds for denial were 

themselves unreasonable. “When reviewing the HAB’s findings, our task is not 

to determine whether we would have found differently or to reweigh the 

evidence, but, rather, to determine whether the HAB’s findings are supported 

by competent evidence in the record.” Appeal of Chichester Commons, LLC, 

175 N.H. at ___ (slip op. at 4). We find no error. See RSA 541:13; RSA 679:9, 

II.

Affirmed.

MACDONALD, C.J., and BASSETT, HANTZ MARCONI, and DONOVAN, 

JJ., concurred.