Two baby steps toward helping wineries, breweries and brew pubs survive

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Everybody loves wineries and craft breweries. Everyone except New Hampshire state statutes, that is. New Hampshire statutes show about as much affection for wineries and craft breweries as the English have for the French, or snooty wine drinkers have for rowdy beer drinkers. 

For example, say you own a winery or craft brewery in New Hampshire, but your location is not exactly on the beaten path. You’re not drawing a lot of tourists down your windy rural road. However, lawmakers have graciously allowed you to have a separate retail outlet, and you created one in a busy tourist area. 

Great for business! Unless people want to taste your product before buying it. 

State law says that breweries and wineries can have a single license for on-premises alcohol sales—at the manufacturing location. Want to sell open drinks at your retail location—where potential customers actually are? Sorry. 

You can sell closed-container drinks at your retail outlet, but not open-container drinks. Because,., safety. Or something. 

This has been a problem for Apollo Vineyards in Derry. Restricted to serving wine only at their vineyard, they’re losing potential sales that could come from being able to serve at a retail outlet in a more prominent location.

House Bill 1076 would sort-of fix that problem by allowing wineries and breweries to choose whether to use their one on-premises license at the manufacturing facility or at the retail outlet.

Shouldn’t they be able to sell at both places, you might ask. 

What do you think this is, the 21st century?

So what about brew pubs, which are a separate category in state law? Let’s say you own several restaurants in New Hampshire but have decided to also open a single brew pub because, well, brew pubs are cool and hip and trendy and you have a great idea for one. 

Trivia question: Is it legal for you to do that?

Don’t be ridiculous. This is New Hampshire. Of course it isn’t legal.

State law prevents a beer manufacturer from also owning multiple on-premises alcohol licenses (such as for a restaurant or bar).

It turns out that this particular law has caused a huge problem for the owners of Lost Cowboy Brewing Co., which is under construction in Nashua. It’s being opened by Michael Timothy’s Group, which owns Buckley’s Great Steaks in Merrimack and Surf in Nashua and Portsmouth, among other restaurants. 

Technically, their new venture is not a restaurant, but a beer manufacturer. So, technically, they can’t own it and be licensed to sell alcohol at their other restaurants. 

House Bill 1380 would fix that by allowing a company that owns a beer manufacturing license to also hold licenses that allow the sale of alcoholic beverages for consumption on-or off-site. And, as amended, it would allow the owner to sell the beer from his brewery at one of his restaurants. Just one. 

Now, you might be wondering what possible public health or safety justification there could be for prohibiting a company from distributing beer it makes at a local brew pub to more than one restaurant it owns elsewhere in the state. 

Well, welcome to New Hampshire alcohol laws. The ghosts of Prohibition haunt these statutes. Each tiny step into modernity, such as the bills listed above, exorcises one of those pesky Prohibition ghosts, even though others usually work their way into the bills to pull them back a bit toward the 1930s. It’s a seemingly never-ending struggle between the future and the past.

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Housing bills seek to restore some limited property rights while maintaining local control

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There’s a growing consensus that New Hampshire’s overly restrictive land-use regulations need to be addressed to reverse the state’s housing shortage. Whether changes should be made at the state or local level, though, remains a major point of contention.

State-level solutions generate reflexive opposition from people who view local land-use regulation as an entirely local issue. Yet some of this opposition, maybe most, is based on an important misconception.

Opponents of state action commonly assert that bills to address the housing shortage are an effort by legislators to take for themselves powers that belong at the local level. This is mistaken. 

Decisions about land use will continue to be made locally. Under many of the bills working their way through the Legislature this session, those decisions will be made by individuals at the local level rather than by local governments—boards and bureaucrats—or voters.

Changes in Manchester

Realizing the desperate need for housing, some local governments are changing their ordinances to allow more development. In Manchester, for example, several proposed amendments to the city’s zoning ordinance would represent small but important steps to relax land-use regulations in the Queen City. 

The amendments would permit four-unit housing to be built on lots currently zoned for three-unit housing, drop the required number of parking spaces for multifamily housing from 1.5 spaces per unit to one space per unit, and no longer require property owners to petition the city’s planning board for a conditional use permit before building accessory dwelling units (ADUs).

These steps are the beginning of a bigger set of reforms being studied in the city. Not every municipality is moving in this direction, though, prompting state lawmakers to intervene in limited but meaningful ways. 

But these interventions don’t amount to the creation of statewide zoning. They just return some decision-making authority to property owners, from whom it was taken in the first place.

Legislation to restore limited rights to property owners

Consider the following bills: allowing one ADU, attached or detached, by right and allowing up to two per lot under certain conditions (HB 1291), forbidding municipalities from banning manufactured housing (HB 1361), allowing the expansion of a single-family residence within an urban residential zone to no more than two residential units without review if it meets certain requirements (HB 1399), and preventing local zoning regulations from requiring more than one residential parking space per unit (HB 1400).

Yes, these would be state laws, albeit modest ones. No, they would not amount to a uniform state zoning code. They would restore some limited rights to property owners while retaining local authority to regulate in each of these areas.

Currently, if a property owner wants to add a second ADU or convert a single-family home into a duplex within an urban residential zoning district—even if the developments wouldn’t encroach on neighboring property, disturb anyone, or change the outward appearance of the property whatsoever—local ordinances can prohibit them from doing so. 

Contrary to popular belief, local governments do not hold that power by right. The power to regulate private property is, under New Hampshire’s Constitution, granted to local governments by the state. 

With each of the bills above, lawmakers are not proposing to impose a single uniform ordinance statewide. They are proposing to reduce the regulation of property in these very limited areas altogether, thus restoring a small measure of rights originally held by property owners. 

Manufactured housing—prefabricated homes that are transported to sites—is an easy, quick, and often inexpensive way to put more people into homes. Under HB 1361, municipalities can still regulate manufactured housing but not to the extent that it is effectively banned. 

Parking space requirements are a pernicious roadblock to creating more multifamily housing. In zoning districts that require 1.5 parking spaces per housing unit, that means every duplex, three-family, and four-family building needs enough land set aside for three, 4.5, and six spaces, respectively. Where municipalities require two parking spaces per housing unit, that means every duplex, three-family, and four-family building must have four, six, and eight spaces, respectively. 

Often these stringent requirements keep a lot of multifamily housing from being created, either through development or single-family expansions. By preventing local governments from requiring more than one space per residential unit, HB 1400 would restore to property owners the authority to decide whether a unit needs more than one parking space on site. 

Because these kinds of state proposals would supersede local ordinances, they rub some the wrong way. Local control has long been a very important principle in New Hampshire.

The state’s historical adherence to local control, however, shouldn’t justify unlimited local control. Local governments are still governments, and as a result, their ordinances can be fundamentally oppressive.  

At the same time, we shouldn’t always assume that the state government overruling some local ordinances automatically represents state overreach. In the case of these four bills, such actions seek to pull back the centralized planning powers of local governments and protect Granite Staters’ property rights. 

Isn’t that what governments are instituted to do, to secure our rights? If so, then private property rights are chief among them.

When you consider that these state laws would be superseding some of the most overly restrictive local regulations that limit property rights throughout the state, and that state lawmakers have only resorted to these very modest steps because of inaction on the part of municipalities, then such proposals look less like top-down state government control and more like state government doing the bare minimum to protect Granite Staters’ property rights and address the state’s housing shortage.



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Legislators vote to strengthen local tax caps, especially for school districts

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While crime stories, campus protests and political drama captured much of the media attention this week, a bill with tremendous potential consequences for taxpayers quietly passed the House on Thursday.

Senate Bill 383, which has passed both chambers in slightly different versions, would strengthen local tax caps and allow school district caps to be tied to enrollment. 

Under current state law, town and school district tax caps can apply to estimated taxes “as shown on the budget.” That excludes off-budget warrant articles that might also have a tax impact. SB 383 would cover the budget and “all other warrant articles with a tax impact.”

RSA 32:5-b II mandates that a town or district “tax cap shall be either a fixed dollar amount or a fixed percentage applied to the amount of local taxes raised by the town or district for the prior fiscal year…”

SB 383 authorizes voters to use “a multiplication factor” that would cap tax increases at the inflation rate times population growth. That’s been the general idea behind tax caps from the start. The bill lets towns use this more precise formula rather than a fixed amount or rate. Those fixed numbers were always basically a proxy for the multiplier anyway.

Perhaps most consequentially, SB 383 creates a new formula for school district tax caps. The school district formula would be a combination of inflation times enrollment, rather than municipal population growth. That’s an important change. School budgets can be the largest portion of local budgets and the largest driver of local spending and tax increases.

Our 2023 analysis of district school spending in New Hampshire found that there generally wasn’t a strong correlation between school enrollments and local school spending. New Hampshire public school districts lost 29,946 students from 2001-2019, but increased spending by an inflation-adjusted $937 million. School district budgets tend to grow faster than the inflation rate, and faster than all other areas of government spending, even when enrollment is falling, we found. 

In Manchester, for example, school district enrollment fell by 13% from 1995-2018. During those same years, city school district spending grew by a remarkable 68%. 

This year, the Manchester school district’s proposed budget was 7.9% higher than the 2020-21 school budget—after adjusting for inflation—though enrollment was 4.3% lower than in the 2020-21 school year.

Now, Manchester has a tax cap, and that cap applies to the school district’s proposed budget. Neither the city nor the school district is allowed to propose a budget that exceeds the average inflation rate of the prior three years. 

(City tax caps are regulated in a separate section of state law (RSA 49) than are town tax caps. Manchester’s cap, like Nashua’s, is tied to the inflation rate.)

Though SB 383 doesn’t apply to cities, and thus wouldn’t affect Manchester’s school district tax cap, Manchester’s experience shows how the formula in the bill would put a further constraint on spending.

Manchester’s school district taxes have been restrained by this cap for more than a decade, but spending still grew rapidly despite falling enrollment. The formula Manchester uses does not take into account district enrollment. If it had, the cap would’ve been lower, and therefore might have prompted some efficiencies in district budgeting.

The city school district accounts for about 52% of Manchester’s budget, which shows how consequential the new caps allowed in SB 383 could be. 

The formulas allowed in SB 383 are more flexible than the fixed number or rate caps towns and districts can adopt now. That could weaken some of the opposition to tax caps, leading to their more widespread adoption. At the same time, the bill lets voters strengthen caps by covering warrant articles that have tax impacts and by tying school district tax changes to enrollment. On the whole, the bill would turn tax caps into a more powerful and more appealing tool for taxpayers.

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EdChoice analysis finds EFAs save taxpayers nearly $9 million this year, $23 million annually from currently enrolled students

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A new fiscal analysis of the New Hampshire Education Freedom Account Program finds that EFAs have generated nearly $9 million in taxpayer savings in the 2023-24 school year and are projected to generate $23 million in savings annually from the current cohort of students.

It also shows that the total $24.8 million ESA program cost for fiscal year 2024 represents just 0.7% of the $3.5 billion funding that New Hampshire public schools receive from local, state, and federal sources and 0.3% of the state’s total expenditures on public services in fiscal year 2023.

The Education Freedom Account Program allows low- and middle-income households to deposit their per-pupil state adequate education grant into an education savings account (ESA) designated for various educational purposes such as private school tuition, tutoring, textbooks, curriculum, educational therapies, and related expenses.

The study finds that:

  • During school year 2023-24, the program’s third year, the program generated an estimated $8.7 million in net fiscal benefits for state and local taxpayers combined.
  • In the long run, the program will generate $23.1 million in net fiscal benefits annually from this third-year cohort of students.
  • The New Hampshire Education Freedom Account Program provides ESAs worth an average of $5,255 for eligible students. This amount is worth 23% of the total per-pupil cost for New Hampshire public schools.
  • The total cost for New Hampshire’s ESA program is $24.8 million for the third year (school year 2023-24). This cost represents 0.7% of the $3.5 billion funding that New Hampshire public schools receive from local, state, and federal sources. The program cost represents 0.3% of the state’s total expenditure on public services.

Again, a comprehensive fiscal analysis of New Hampshire’s EFA program finds an overall cost savings to taxpayers.

One interesting note about this latest analysis is the switcher rate. A “switcher” is a student who would have enrolled in a district public school if not for the school choice program. New Hampshire’s EFA program is not reserved exclusively for students enrolled in a public school. Students enrolled in private schools or home-school programs also are eligible. A large percentage of students in New Hampshire’s EFA program were not enrolled in a public school when they applied for and received an EFA. But it turns out that many of those students had been public school students before.

A separate EdChoice study, published in March, used anonymized student data provided by the state’s EFA administrator, the Children’s Scholarship Fund New Hampshire. EdChoice was able to determine that many students previously identified as private-school students, and therefore not switchers, had actually been enrolled in a public school the year before, or were entering the public education system in New Hampshire for the first time (either as kindergarten or first grade students, or as movers to New Hampshire). The actual switcher rate for New Hampshire’s EFA program is closer to 45% than the previously reported 11%.

You can download and read the full EdChoice EFA fiscal analysis here: 04 24 NH Brief.

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Median home price hitting $500k signals urgent need for land-use reform

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New Hampshire’s median home price hit an unprecedented half-million dollars in March, just two years after passing $400,000 for the first time, underscoring the urgency of making changes to local land-use regulations. 

The change represents “a 16 percent drop in affordability from a year ago,” according to the New Hampshire Association of Realtors (NHAR) report.

For context, the state housing affordability index was 59 in March. In other words, the median household income in New Hampshire ($90,845) is a mere 59% of what one needs to qualify for the median-priced home at current interest rates.

Such poor affordability prospects haven’t always plagued Granite Staters. According to NHAR, the affordability index hit upwards of 150 in March 2017 and even reached a high of 200 in 2013. 

The culprit, as the NHAR concluded (and many Granite Staters know by now), is a “lack of New Hampshire housing inventory….” 

NHAR President Joanie McIntire emphasized the point. 

“The problem remains the shortage of available housing that is continuing to make homeownership more difficult than ever for those workers needed to help an economy thrive,” she said.

There is no doubt that New Hampshire’s supply of homes is nowhere close to meeting residents’ demand for homes. In a functioning market, when prices signal such huge demand builders would be expected to increase supply rapidly.

New Hampshire unfortunately doesn’t have a functioning market thanks to a thick layer of local government regulations. 

Exclusionary zoning—the use of zoning ordinances to exclude certain types of land uses from zoning districts—has run rampant in New Hampshire municipalities for decades, choking the supply of housing throughout the state.

Since our 2021 study identifying zoning as a major cause of the state’s housing shortage, there’s been a growing consensus that the current land-use landscape in the Granite State has to change. 

As if to emphasize our analysis of the New Hampshire market, the Fall/Winter 2023 edition of the Journal of Housing and Community Development last December published this summary of the link between restrictive zoning and housing affordability: 

Restrictive zoning codes contribute to socioeconomic divisions, worsen the housing affordability crisis, and artificially inflate housing prices. The insufficient housing supply further emphasizes the importance of exploring opportunities for increasing housing stock through land use reform.

The correlation between states’ median home prices and their land-use freedom is particularly damning. Among the 25 states with the lowest median home prices, according to Redfin and Bankrate 2023 data, 20 of them also rank in the top 25 for most land-use freedom, according to the Cato Institute’s Freedom in the 50 States 2023. 

Conversely, of the 25 states with the highest median home prices, 20 of them are found in the bottom 25 for the least amount of land-use freedom. 

In these rankings, New Hampshire has the 14th-highest median home price and is the 12th-most restrictive state when it comes to land-use freedom.

The relationship, reflected in numerous studies, is clear: Less land-use freedom shrinks the supply of housing, which leads to inflated home prices.

Another way to look at the problem is through building permits. New Hampshire publishes building permit approvals collected by the U.S. Census Bureau. These data show a sharp and sustained reduction in building permit approvals since the early 1980s, showing that the housing supply problem long predates the pandemic or the 2007–08 recession. 

From 1984–1988, more than 10,000 residential building permits (single-family and multifamily) were issued per year in the state, with the peak being 18,015 in 1986. The last time more than 5,000 residential building permits were issued in a single year was 2006—18 years ago.  

The median home price in New Hampshire cracked $200,000 for the first time in 2002. For the next two decades, home construction did not come close to meeting demand. By 2021, the median home price had doubled to $400,000. Now it’s $500,000. Despite astronomical demand for new homes, the number of residential building permits issued in 2023 was just 4,512, a decline of 271 from the year before. 

Builders make money by building and selling homes and apartments. They want to meet this demand. Too many local governments have made it too costly or difficult for them to do so. 

At this point it’s clear that relaxing local restrictions on land-use freedom in New Hampshire is critical to opening the market forces that will allow supply to meet demand. The more urgently policymakers act to lift regulatory obstacles to home construction, the more quickly builders will be able to respond to these flashing-red market signals and provide Granite Staters the housing they so desperately want. 

 

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How the big “HOMEnibus” housing bill would do more harm than good

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By Jason Sorens

The New Hampshire House of Representatives recently passed a couple of bills to make certain types of housing easier to build: single-family conversions to duplexes on lots with adequate sewer capacity, and detached accessory dwelling units. A more ambitious Senate bill comes up for a vote of the full chamber this Thursday, but unlike the cleaner, smaller House bills, this one has both pro-housing and anti-housing elements. 

As amended, this bill, dubbed the “HOMEnibus Act,” would do the following:

  1. Extend the existing Community Revitalization Tax Relief Incentive to cover conversions of office, industrial, and commercial uses to residential use. This is an optional program municipalities can choose to adopt. It makes it so that rehabilitation or conversion won’t incur additional property tax as a result of improvements that raise the value of a property. This incentive could result in more residential conversions, but it also reduces the property tax benefit a town receives from such conversions, which may make planning and zoning boards less likely to want to approve such developments in the first place. It’s hard to imagine that the incentive would make the housing shortage worse, but it also might not make it any better.
  2. Allow local governments that currently operate under direct democracy (towns without charters and village districts) plus Coos County to let their governing body–typically, the select board–adopt and amend zoning ordinances without a vote of the people. A vote of the people would be necessary to give the select board this power. The assumption seems to be that the people who show up on town election day are less pro-housing than select boards are. I’m unaware of direct evidence on this point. Based on evidence from Texas, Nolan Gray thinks voters are less pro-zoning than officials are. But my experience in New England suggests that the reverse might be true here, though it probably varies by town. Certainly, in places like Canaan and Dalton, the public vote requirement has stopped zoning from being adopted at all.
  3. Require planning boards to consider “alternative parking solutions” proposed by residential developers to meet on-site minimum parking requirements, and if the developer can demonstrate that these alternative solutions would meet parking demand, planning boards must accept them. Alternative solutions could include nearby off-site parking lots, agreements with ride-share companies, public transportation availability, or walkable infrastructure as designated in a master plan or zoning ordinance. This is a straightforwardly pro-housing, pro-property rights measure. It is also rather tepid, given that other states like Minnesota are proposing to abolish all on-site parking minimums statewide for all uses, but it’s better than nothing.
  4. Authorize mandatory inclusionary zoning (IZ) that would require up to 15 percent of new dwelling units be deed-restricted below-market housing provided the developer is granted a density bonus of at least 25% more units than what the base zoning allows. Unfortunately, this is an anti-housing measure, creating a type of rent control tax on new development, as Yale law professor Robert Ellickson pointed out  more than 40 years ago. Research in the Baltimore-Washington area finds that mandatory inclusionary zoning increases the cost of market-rate housing. Other peer-reviewed studies have consistently found a similar result: adopting mandatory IZ increases housing costs and distorts the market away from single-family development toward multifamily development. (However, one non-peer-reviewed study finds that moving away from mandatory to voluntary IZ does not reduce housing costs.)

The original version of the bill also had a major reform to minimum lot sizes that would have been pro-housing, but that was amended out. There is good reason to believe that the net effect of the current version of this bill would be to make housing less abundant and more costly.

Jason Sorens of Amherst is a senior research fellow at the American Institute for Economic Research.



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For Education Freedom Accounts, capping income at 400% of poverty would exclude these moderate-income families

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As legislators consider making more Granite State families eligible for the popular Education Freedom Account (EFA) program, there appears to be some disagreement about what types of families would be able to use the program depending on where the income limits are set.

Currently, only families whose income does not exceed 350% of the federal poverty level can access an Education Freedom Account. The House has already passed a bill to expand eligibility to 500% of the federal poverty level. In the Senate, there’s been some discussion about setting the line at 400%.

Considering whether to expand eligibility for the EFA program to families earning no more than 400% versus 500% of the federal poverty level is not a trivial matter. 

To many New Hampshire families, the difference between 400% and 500% is the difference between finding the educational environment that meets their childrens’ needs or being stuck in a setting that doesn’t work for them.

Last week, we reported on Christine M.’s family of three. Christine and her husband work three jobs but can’t afford private school. They would qualify for an EFA with an income cap set at the 500% level, but not at the 400% threshold. 

Many other Granite State families find themselves in similar situations because 500% of the federal poverty level is hardly “rich.” 

The following chart shows what the eligible income caps would be under both the 400% and 500% expansions compared to the current eligibility standard of 350% of the federal poverty level.

 

Household/Family Size 350% of 2024 federal poverty level 400% of 2024 federal poverty level 500% of 2024 federal poverty level
2 $71,540 $81,760 $102,200
3 $90,370 $103,280 $129,100
4 $109,200 $124,800 $156,000
5 $128,030 $146,320 $182,900
6 $146,860 $167,840 $209,800
7 $165,690 $189,360 $236,700
8 $184,520 $210,880 $263,600

*For each additional person, add $18,830 at the 350% level, $21,520 at the 400% level, and $26,900 at the 500% level.

At these income thresholds, many families that few would consider affluent would be left out of the program. 

The following families would not be eligible for an EFA at the 400% level but would be eligible at the 500% level (according to the most recent data available of annual mean incomes in New Hampshire from the U.S. Bureau of Labor Statistics):

  • A single registered nurse with one school-age child earning $83,420 per year;
  • A single dental hygienist with one school-age child earning $86,570 per year;
  • A married waiter and secondary school teacher with one school-age child earning a combined $103,820 per year;
  • A married childcare worker and school psychologist with one school-age child earning a combined $104,000 per year;
  • A married real estate agent and housekeeping cleaner with two school-age children earning a combined $127,660 per year;
  • A married mental health/substance abuse social worker and journalist with two school-age children earning a combined $125,720 per year;
  • A married middle school teacher and accountant with three school-age children earning a combined $146,410 per year;
  • A married paramedic and physical therapist with three school-age children earning a combined $149,850 per year.

Each of these far-from-rich families would be excluded from EFA eligibility under a new cap of 400%. 

Under 500%, however, they would all qualify for the program. 

This raises the question, then: What’s the real purpose of an income cap when families like these are left out?



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How one licensing requirement limits patient access to PAs

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New Hampshire’s health care provider shortage has been a major news story for years. The demand for health care is growing as New Hampshire’s population ages. Yet the supply of providers is not keeping pace with demand, as physicians retire and too few young people enter the field, particularly in the three primary care occupations: physicians, physician assistants (PAs) and advanced practice registered nurses (APRNs). 

To illustrate the problem, a nationwide review of health care industry job listings on Indeed.com last fall found that New Hampshire had more than 1,000 listings per 100,000 residents, the highest number of listings per-capita in the United States.

Every New Hampshire county but Rockingham has at least some area experiencing a shortage of primary care providers.

The state’s 2023 annual report on the health care workforce availability found a very low rate of PAs offering outpatient primary care in New Hampshire per 100,000 residents. 

Counting providers offering outpatient primary care, the state found that New Hampshire has 54 physicians and 30.5 APRNs per 100,000 residents. But the rate for PAs is only 9.2 per 100,000. 

That falls even lower in rural areas. The number of physicians and APRNs per resident who offer outpatient primary care actually increases in rural parts of the state (to 56.9 for physicians and 36.3 for APRNs). But the number of PAs per resident offering that care falls from an already low 9.2 to just 6.3.

One likely reason for the shortage of PAs offering outpatient primary care, particularly in rural areas, is that the state essentially treats PAs as apprentices rather than the advanced practice health care professionals—with master’s-level education credentials and national industry certification—that they are.

State law (RSA 328-D:3) mandates that all PAs must have completed a nationally accredited PA education program (these are master’s degree programs) and have passed a national proficiency exam. 

RSA 328-D:3-b VII states that PAs “may provide any legal medical service for which they have been prepared by their education, training, and experience and are competent to perform.”

And yet the law prohibits them from offering the very same medical services they’re trained and qualified to perform unless they first obtain “a written collaboration agreement with a sole practice physician or a physician representing a group or health system….” 

The collaboration agreement is not supervision. The physician signing the agreement does not supervise the PA’s work and is not liable for the quality of the PA’s work product (outside of any direct involvement in a specific case). “Collaboration” is defined in law (RSA 328:D-1) as merely consultation or referral. 

APRNs, who have similar training to PAs, do not have a similar requirement. The law rightly treats them like advanced-degree professionals. PAs, despite having master’s-level medical training and being required by law to practice only within their area of training and expertise, are treated like untrained apprentices.

House Bill 1222 would remove the requirement that PAs enter into a collaboration agreement before being allowed to practice what they’re educated and trained to do.  

HB 1222 does not change the scope of practice for PAs in any way. Every other legal restriction on their work would remain. The bill would simply allow them to offer the services they’re fully qualified to offer without first finding a doctor to sign a contract agreeing to talk to them from time to time.

Despite their title, PAs are not really “assistants.” Under state law, they are authorized to offer services including, but not limited to:

“a) Obtaining and performing comprehensive health histories and physical examinations; 

“(b) Evaluating, diagnosing, managing, and providing medical treatment; 

“(c) Ordering, performing, and interpreting diagnostic studies and therapeutic procedures; 

“(d) Educating patients on health promotion and disease prevention;

“(e) Providing consultation upon request; 

“(f) Writing medical orders….”

PAs function as primary care providers, at a level below physicians but on par with APRNs. The requirement for a collaboration agreement is an unnecessary regulation that reduces the supply of PAs while likely hurting Granite Staters.

Some might consider this requirement a harmless rule that adds an extra layer of protection for patients. But if the requirement reduces the supply of trained, educated and licensed primary care providers in the state, as appears to be the case, then it hurts patients. By reducing the supply of providers and increasing wait times, it could reduce Granite Staters’ access to care, causing worse health outcomes. 

A proposed floor amendment would remove the collaboration agreement requirement after PAs have completed at least 8,000 hours of clinical practice. That’s a high hours requirement, and an unnecessary one. It would still create a needless barrier to entry into a profession that New Hampshire should by trying to expand, not limit. 

But if the choice is between the status quo and lifting the requirement after 8,000 hours, the pro-patient answer is easy. Patients would be better off if the state encouraged more people to become PAs by giving them a path by which to escape the collaboration agreement eventually.  

When licensing denies people services they need in the name of protecting them from fully educated, trained and credentialed professionals, it winds up hurting the very people it’s designed to protect by prohibiting them from accessing the care they need. The collaboration agreement is a perfect example of this unintended consequence.

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House and Senate to vote on second round of anti-EFA bills this week

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The second group of bills to saddle the Education Freedom Account program with onerous red tape will be considered this week by the state House and Senate.

State lawmakers took up the first set of regulatory measures last week, voting down both House Bills 1512 and 1594. 

This week, the House will vote on HB 1418, 1610 and 1654, while the Senate considers Senate Bill 525. 

HB 1418, 1610 and 1654 seek to impose new controls on the EFA program, both its providers and participants. 

HB 1418 prohibits the purchase of school uniforms with EFA funds. 

In some academic settings, school uniforms are an essential part of a student’s education. The only way to receive an education at these institutions is to purchase and wear the required uniform. The point of the uniform typically is to instill a positive culture and reduce distractions. 

Uniforms “create an atmosphere in our schools that promotes discipline and order and learning,” as President Bill Clinton put it in 1996 when endorsing school uniforms during a visit to the Long Beach, Calif., school district (which still requires uniforms). Uniforms have long been viewed as a valuable tool for creating a disciplined, structured learning environment, so it’s unclear why they wouldn’t be an allowed educational expense.

The two other House bills, HB 1610 and 1654, target providers. Both bills would impose a set of costly requirements on EFA providers that would fundamentally discourage their participation in the program.

HB 1610 would require all educational settings in the state to administer standardized statewide tests in English language arts, reading and math. 

One characteristic of the growing education marketplace is a shift away from using standardized assessments as a primary measurement of student learning progress. In choosing an unconventional educational environment that accepts EFA funds, a parent might specifically seek a learning model that doesn’t assess student progress with standardized testing at all. 

The diversity of curricula and instructional methods among EFA vendors makes it impossible for a single standardized test to measure student learning accurately. Many (possibly most) curricula would not be aligned to the test. HB 1610 would lead to artificially low scores simply because of misalignment, creating the false impression that rich, quality programs are inadequate. 

By requiring all EFA education providers to administer standardized statewide assessments to the program’s participants, HB 1610 would force a one-size-fits-all learning measure on a decentralized and diverse program with a variety of learning models to choose from. Forcing this uniformity on families who strive to escape such constrictions might be the whole point. 

HB 1654, meanwhile, would subject all EFA providers to an annual state review to check their adherence to state and federal anti-discrimination laws. 

The legislation is duplicative, as all education service providers in the EFA program are required by state law to comply with state and federal anti-discrimination laws. Adding an additional layer of compliance costs on these vendors only serves to increase costs and further discourage provider participation in the program.

Over to the Senate, SB 525 takes proposed oversight of the EFA program to a new level. Similar to HB 1594 last week, the Senate’s bill would require EFA participants’ household incomes to be at or below the income cap for eligibility (currently 350% of the federal poverty level) each year during the student’s participation in the program. Currently, income is verified upon application.

Were annual income testing to become law, some students would lose their EFA even when parents receive small raises. This would create needless and potentially damaging disruptions to these students’ educations. You can read our analysis of the House’s similar measure here. 

Beyond that, SB 525 would also set reporting requirements and annual income verification audits for the program. Under SB 525, the state would verify continued income eligibility compliance among participants by subjecting a random one-third of EFA families to an audit every year. 

The Legislative Budget Assistant’s office wrote that it does not have authority to review families’ private records, so the state would have to obtain participating families’ financial records before reviews could be conducted. The large percentage of reviews required in the bill runs against the LBA’s standards and practices for audits, as it bases sample sizes on a program’s risk assessment. The LBA wrote in a fiscal note on the bill that conducting the hundreds of reviews required by SB 525 could add costs to the LBA’s budget and affect its ability to conduct its other required audits in a timely fashion.

Such an intrusive income verification regime would not only burden a state agency with hundreds of additional audits annually but would suppress participation in a program that, as we’ve noted before, saves taxpayers money. 

Any benefits to the state from these bills would be minimal, while the costs to participating families would be significant and the impact on taxpayers would be negative. These regulations seem to serve no other purpose beyond crippling EFAs and restricting their use. 

 

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Manchester considers first housing-friendly zoning changes to come from major zoning review

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Despite being the main metropolitan area in the state, the City of Manchester’s zoning ordinances are surprisingly hostile to the construction of new multifamily housing. As a review of the city’s zoning ordinances championed by former Mayor Joyce Craig continues, aldermen are considering three relatively small changes unanimously approved by the Planning Board and brought forward by new Mayor Jay Ruais. 

These proposed amendments to the city’s zoning ordinances would represent a small but important step in the long-term effort to make the city’s zoning rules more friendly to new housing development. 

“Specifically, these amendments would help to make the construction of a few types of housing easier in the city by reducing regulatory barriers and by speeding up the permitting process,” Jeff Belanger, director of Planning and Community Development, told aldermen at a recent public hearing. 

The first change would allow four-unit housing to be built on lots currently permitting three-unit housing.

“The ordinance today establishes minimum lot sizes for developing multifamily or townhouse buildings with three dwelling units and then requires additional lot area for each additional dwelling unit,” Belanger explained. “The proposed amendments would change the minimum number of units that could be built on a lot from three to four, meaning that there could be an additional dwelling unit built on the minimum size lot.”

But for these changes to have any meaningful effect, the amendments also address parking requirements, reducing the required number of parking spaces for multifamily housing from 1.5 spaces per unit to one space per unit. 

“The proposed amendments for housing units would not be at all effective really if we didn’t also make adjustments to parking requirements,” Belanger said. “Parking requirements can really limit housing construction because parking takes up land area and adds costs. That’s especially true when it comes to three-family and four-family dwelling units because of the current parking requirements in the zoning ordinance.” 

In zoning districts that require 1.5 parking spaces per unit, the result is that three-family buildings need to set aside five parking spaces and four-family buildings need six parking spaces. And having that fifth parking space triggers an additional regulatory burden. According to Belanger, lots with at least five parking spaces must have a landscaped buffer around them, which costs time, money, and land area. 

Dropping the required number of parking spaces to one per unit would allow four-unit housing to be built on what is now the minimum lot size for three-unit housing, as three-unit and four-unit buildings would only need three and four parking spaces, respectively, keeping them below the five-space threshold. 

The third change would eliminate the need for property owners to receive a conditional use permit from the city’s Planning Board before building accessory dwelling units (ADUs) on their property, bolstering a property owner’s right to build an ADU.

“The benefit of exempting ADUs from Planning Board review is that it makes them faster and cheaper to permit,” Belanger told the aldermen. “Planning Board review usually takes about a month for an ADU application and there are fees associated with it. Both the delay and the fees would be eliminated with this proposal.”

Removing this red tape would help accelerate the construction of ADUs in Manchester, increasing the supply of units in the city and putting more people in homes. 

Interestingly, the Manchester Planning Board unanimously supports all three amendments, though they would take power away from the Planning Board itself. That is a sure sign of how pressing the need is for these types of reforms in the city. 

According to the New Hampshire Zoning Atlas, Manchester permits two-family housing on 23% of its buildable land and three-family, four-family, and five+-family housing on 21% of its buildable land as of 2023. 

That puts Manchester behind seven other cities in the state with respect to duplexes and six other cities with respect to larger multifamilies. (See our breakdown from last year of Manchester’s hostility to duplexes and other multifamilies here.)

“Manchester’s proposed zoning amendment is a modest but meaningful change that will probably result in a few dozen more apartments being built in scattered locations,” said Jason Sorens, senior research fellow at the American Institute for Economic Research and the principal investigator of the zoning atlas. “The city could go even further, especially since some of the changes merely bring the zoning in line with existing densities, but this change would start to chip away at the housing shortage in the city without causing noticeable changes in density at the neighborhood scale.”

There’s more the city can do to free up the supply of housing, such as further rolling back parking minimums, addressing minimum lot sizes, streamlining the permitting process for all types of construction, and opening up more buildable land for duplexes, just to name a few. But these proposed changes before the city now would start the much-needed process of reducing development costs and protecting residents’ property rights. 

“The proposed zoning amendments are not going to fix every housing problem in the city, but they are intended to at least help get at the cause of the housing crisis, which is a lack of supply,” Belanger explained. “They are intended to reduce regulatory barriers to housing production, while respecting the character of neighborhoods.”

State lawmakers are considering a slate of housing bills that would effectively override many municipalities’ zoning codes. And while some view such actions as constituting threats to local control—which New Hampshire rightfully cherishes—inaction on the part of local governments to loosen their own regulations may leave the state with no other choice. 

That is, unless cities like Manchester act first on these kinds of zoning amendments. 

 

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