City Hall Ignores New Hampshire Law
By Buck Fuller*
How long can Portsmouth City Hall ignore the New Hampshire laws (Revised Statutes Annotated or RSAs) that govern city or town actions? These include RSAs that govern workforce housing.
On December 30, 2021, the Portsmouth Planning Board gave a 50-year Conditional Use Permit (CUP) to the applicant for developing 2454 Lafayette Road. The Cinemagic Theatre in Southgate Plaza is located on this site. The Permit allowed for building a condominium building 5 stories high of 95 units instead of the zoned 4 stories. These condo units were to be SOLD.
In exchange, 20% of the condos had to be workforce housing. State law, RSA 672:58 IV, requires that these workforce housing units be sold at no more than 100% of the area median income (AMI) level for a 4-person family. In Portsmouth, the AMI is $116,400.
Now comes the Cinemagic!
On April 3, 2023, through the City Manager the applicant/developer asked the City Council to make a decision that was not theirs to make. The applicant/developer asked the Council to do the following:
Change the Planning Board’s RSA-compliant plan for 2454 Lafayette Road of 95 condominium units for sale, with 20% workforce housing units affordable to a household with an income of no more than 100% of the AMI for a 4-person household.
To now be (magically):
The applicant/developer now wants the option to either be 95 condominium units for sale OR a non-compliant project of 95 apartment rental units with 20% workforce housing units with no more than 100% of the AMI for a 3-person household. These are to be RENTED.
That means that the applicant/developer practiced a sleight-of-hand by keeping the rented units at 100% of the AMI for a 3-person family rather than reducing the rental income to 60% of the AMI for a 3-person family as required for rented units.
The dollar amount the applicant/developer receives for a 60% AMI rental unit is $1,572.00. A 100% AMI unit would rent for $2,516.00, nearly $1000 more per month. Multiply that times 19 units for 12 months and the total is over $215,000 per year in extra income for the applicant/developer.
Here’s the reality (not the magic):
This proposed change is in violation of RSA 672:58 IV, which states:
Workforce housing means housing which is intended for sale and which is affordable to a household with an income of no more than 100% of the AMI for a 4-person household.
Workforce housing also means rental housing which is affordable to a household with no more than 60% of the AMI of a 3-person household.
The applicant/developer, apparently with the City Manager’s agreement, wants the option to change from the condos to be SOLD to apartments to be RENTED and that the workforce housing apartments would be rented at 100% of a 3-person family, not the 60% stipulated by the RSA.
If you want to be at 100% AMI you have to sell the property. However, if you want to rent, you have to be at 60% of Portsmouth’s AMI of a 3-person household.
Furthermore, since the Planning Board had approved the units to be for sale, the applicant/developer should go back to the Planning Board for approval of the development as rental units at the lower median income level for the 20% of the units. The City Council does not have the authority to make these changes to the CUP.
An Appeal Has Been Made
At the April 17th City Council meeting there was an Appeal made by Petra Huda and Esther Kennedy pursuant to New Hampshire’s RSA 677:2 and RSA 677:3, Motion for Rehearing of a Local Decision Made by a Legislative Body. The legislative body in this case is the Portsmouth City Council.
New Hampshire’s RSA 672:58 IV supersedes the City Zoning Ordinance. The requirements of the New Hampshire RSA 672:58 IV, define workforce housing.
That means that the Planning Board, Planning Department, City Manager and the City Council individually or collectively do not have the authority to change the definitions and requirements of RSA 672:58 IV.
Per the Appeal, the Portsmouth City Council needs to send the applicant/developer’s request back to the Portsmouth Land Use Boards for full review. Stay tuned!
Buck Fuller is the pen name for a concerned Portsmouth citizen who wishes to remain anonymous.
