Epping overruled again by NH Housing Board, paving way for 315-unit apartment complex

EPPING — For the second time in about a year, New Hampshire's Housing Appeals Board has overruled the town’s Zoning Board, paving the way for a 315-unit multi-family complex to be constructed on Martin Road.

The state board reversed the rejection of a variance this month to allow at least phase 1 of the project, which would include 64 workforce housing units.

The reversal came 13 months after another ruling on the same project on Dec. 5, 2022.

Both relate to appeals of ZBA variance denials, filed by 46 Martin Road LLC, a nearly three-year-old New Hampshire limited liability company with offices in Manchester. It proposed the housing complex on 39 acres at 46 Martin Road, located just west of Route 125's Brickyard Square shopping center.

Originally intended to be a distribution center, in September 2021, the company changed its plans in favor of a housing complex when weight-limit issues on feeder roads in Fremont could not be resolved.

Since then, 46 Martin Road’s managers, lawyers and experts have gone before the town’s Zoning Board to obtain the multiple variances and permits needed to build the 315 units, which includes a 20% workforce housing component.

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The ZBA previously approved variances exempting the project from complying with Epping’s zoning ordinances and allowing on-site water, increased density, height and impervious coverage, as well as a special exception permitting multi-family housing in the Aquifer Protection District, in which the acreage lies.

The company hit its first snag, however, when the town ZBA denied a variance to allow “three habitable stories” where the town ordinance permits only two. The company appealed to the Housing Appeals Board, and the ZBA’s decision was reversed by a ruling dated Dec. 5, 2022.

When the first ruling came down, according to Epping Town Manager Jake Rogers, the town chose not to appeal the decision to the state Supreme Court, which is an option.

The next obstacle in the path of the housing complex arrived Sept. 12, 2022, in a letter to the town from the state Department of Environmental Services. The letter “issued a moratorium on new sewer connections to the town’s sewer collection system and septage receiving at the town’s wastewater treatment facility.”

Unable to connect its proposed housing units to Epping’s sewer system until the moratorium is lifted, 46 Martin Road went back before the ZBA. This time it requested a variance to allow a private on-site septic system to be installed and used for at least the first phase of the project, which would build about 140 units.

According to the Zoning Board minutes, the applicant provided reports and experts who testified the proposed system would be safe for groundwater, for its design had to pass DES scrutiny, inspections and regular testing.

The ZBA members took public comment and denied the variance on the basis that the proposed 22,000 gallons per day on-site septic system violated the town’s ordinance intended to protect the aquifer and public health and safety.

According to the Housing Appeals Board order, “Minutes from the ZBA’s meeting, . . . reflect that the ZBA’s sole concern with the variance request was its potential impact on the underlying aquifer and whether the request is contrary to the public interest.”

According to the Housing Appeals Board ruling, the ZBA lacked hard evidence that the on-site septic system would be a threat to contaminate the aquifer and public health.

“The record contains no evidence from experts that contradicts (46 Martin Road’s) experts, and the ZBA did not request a third-party review of the testimony of (46 Martin Road’s) experts,” according to the Housing Appeals Board order.

A motivating factor to the reversal of Epping’s denial also appears to be the understanding a portion of the housing complex is intended to be “workforce housing.”

“It is also important to recall that the project is a workforce housing project, permitted under the ordinance’s provision allowing flexible use development,” according to the Housing Appeals Board order. “Thus, an overarching purpose, related to the requested variance, is to ‘meet the obligations of the town of Epping to provide a reasonable and realistic opportunity for workforce housing that is not only affordable to build [but] also stable in its costs to own and operate.’”

The Housing Appeals Board reversed the ZBA’s denial, subject to DES’s approval of the temporary 140-unit septic system, with both the state agency and the town inspecting. Further, phase 1 of the housing complex would be the only user of the septic system, and “shall be the first to connect to the municipal water and sewer when it becomes available.”

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Rogers, the Epping manager, said the town is reviewing the decision with its attorney and has not yet determined whether or not it will appeal to the Supreme Court.

According to Rogers, 46 Martin Road has yet to file site plans for review with the Planning Board.

However, in its ruling, the Housing Appeals Board indicates the ZBA is recommending the Planning Board require quarterly water testing on the site as part of potential conditions should the project be approved.

Rogers posted the decision on the town’s website. He recommends town officials and board members throughout the state may find the ruling an interesting glimpse into how the board works, and how its board members think.

This article originally appeared on Portsmouth Herald: Epping ZBA loses second appeal on 315-unit housing project