Judge rules in favor of Newport senior housing developer

By PATRICK O’GRADY

Valley News Correspondent

Published: 10-08-2024 5:00 PM

NEWPORT — A Hillsborough Superior Court judge’s ruling late last week allows a developer to move forward with plans for a proposed 96-unit senior housing project in North Newport without reapplying for two variances, as the Newport Planning Board had required.

The board “acted unlawfully” in requiring the developer to reapply for the variances as a condition of its site plan approval in March, Judge Michael Klass has ruled.

Citing state law, Klass said Walpole, N.H.-based Avanru Development and North Newport Holdings LLC should have been granted a six-month extension of the two variances because the developer filed the site plan for the proposed project on Route 10 next to the town’s airport when the variances were still in effect.

“The Planning Board’s decision on appeal is modified by striking the two conditions that required petitioners to re-obtain the 2022 variances,” Klass wrote in his 10-page decision issued Friday.

The Newport Zoning Board of Adjustment first granted two variances to Avanru Development on March 17, 2022.

One variance allows multi-family housing in the rural district and the second allows the building to exceed the maximum height of 30 feet.

Because the variances expire after two years, the Planning Board made reapplying for the variances a condition when it approved the site plan on March 19 of this year.

Avanru filed its court appeal in April but agreed to seek the variances a second time. On May 16, the ZBA denied the multi-family housing variance and did not hear the other variance.

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Last week’s ruling allows the project to move forward, although there is still an appeal period.

Avanru CEO Jack Franks said Monday the ruling is good news for his plans to bring housing to Newport.

“We are certainly pleased with the outcome of the Superior Court’s decision to vacate the Planning Board’s requirement for variances previously approved,” Franks said, adding that the company will “wait for the 30-day appeal period before any additional decisions are made.”

The town “had no comment at this time,” Town Manager Kyle Harris said in an email. For his part, Planning Board Chairman Dave Burnham said Monday he had not seen the decision.

Klass’ decision hinged on whether the six-month extension is triggered from the date of the site plan filing or site plan or approval.

The town argued that the six-month extension can only be granted if the variances were still in effect at the time of the Planning Board’s approval. But Klass disagreed.

Klass said the language of the state law, RSA 674:33, I-a(a), clearly grants the holder of the variance the right to the extension once the completed application is filed.

“The Court is persuaded that the statute’s use of the clause ‘filed in reliance upon the variance’ is the sole condition necessary to trigger the right to a six-month extension,” the judge wrote.

“Critically, and contrary to the Town’s position, there is no requirement that requires planning board approval prior to triggering the right to a six-month extension. In advocating for approval within the initial two-year period, the Town appears to insert a requirement that is not included in the statute.”

Klass said Avanru “is afforded the protection of the six-month safe harbor” because it filed its site plan within two years from the date that the variances were issued.

Franks said the delays and disputes with the town have pushed construction back until 2026 at the earliest as he needs to secure funding.

“We have missed this year’s funding opportunity (with the New Hampshire Housing Finance Authority) for project’s of this size, delaying us yet again for this much needed senior housing,” Franks said.

Patrick O’Grady can be reached at pogclmt@gmail.com.