NH Zoning Atlas offers groundbreaking insight into local building restrictions

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In 2021, we published a landmark study that showed how local land use regulations drove New Hampshire’s housing shortage. That study changed the conversation on affordable housing in New Hampshire, from one focused on government subsidies to one focused on regulations. This week, the Center for Ethics in Society at Saint Anselm College set the next housing policy landmark when it released the New Hampshire Housing Atlas.

The New Hampshire Zoning Atlas is the most powerful tool Granite Staters have ever had for understanding local zoning ordinances. It catalogues—and maps—23,000 pages of zoning regulations in 2,139 districts in 269 jurisdictions. Never has this information been available in one place, much less open for public examination. 

In the atlas, users can quickly find the building and land use restrictions in one community, or search the state to see what restrictions are in effect across multiple communities. The search tool and maps reveal just how severely New Hampshire municipalities have restricted people’s housing options, and how much freer some towns are than others. 

The atlas shows that single-family homes are allowed by right on 90% of New Hampshire’s buildable land, and by public hearing on another 6%. Sounds good, right? 

A closer look, though reveals that single family homes on lots of less than one acre are illegal—yes, literally illegal—on most of that property. It is legal to build a home on less than one acre in only 16% of the state’s buildable land.

You might think of zoning as “allowing” certain types of property uses. In reality, zoning is a prohibition. It carves communities into areas in which most uses of private property are outlawed. Large minimum lot size requirements are the perfect example of a regulation that outlaws a once common housing preference. The result is a nearly statewide prohibition on the construction of affordable starter homes.  

People generally have no problem with municipalities using zoning to, say, keep industrial operations out of residential neighborhoods. The New Hampshire Zoning Atlas shows, however, that municipalities commonly use this power to outlaw small yards, duplexes, apartments and any mixing of commercial and residential activities. The maps show that it isn’t unusual for municipalities to take zoning restrictions to absurd extremes.

Lebanon’s rural lands 3 zone has a huge 10-acre minimum lot size for single-family homes, which we knew from previous research. But the atlas shows that Hanover isn’t alone. Meredith’s forest and conservation district also has a 10-acre minimum lot size. Marlowe’s rural lands district has a minimum lot size of 20 acres!

Neighboring towns can have huge discrepancies in the types of homes they allow. 

No portion of Bedford, Merrimack or New Boston has a minimum lot size of five acres or more. But significant portions of Mont Vernon and Amherst do. Two-family housing is allowed in most of Londonderry, but in only a small sliver of Derry. 

Though the New Hampshire Zoning Atlas is itself policy neutral (it’s just a presentation of data), it’s likely to lead to policy changes. It’s hard to justify zoning that allows rental housing of five units or more, but bans duplexes and triplexes, for example. This particular rule shows up in a surprising number of communities.

The atlas offers an invaluable tool for citizens who want to better understand how government regulations prevent the market from providing housing options that people want, even in times of sky-high demand.

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Moving to Maine to escape high housing prices in New Hampshire

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Two events on opposite ends of the state last week highlighted the central problem with New Hampshire’s housing market.

In Newmarket over the weekend, a group of renters held a demonstration to denounce landlords and protest high rents.

After experiencing a substantial rent increase, one couple said they had to move out of town to find a place where the rent and the quality of the apartment were better matched. 

That place, they said, is New Jersey.

Another protester said she had moved to Maine to find a more reasonable rent.

It’s true that, on average, moving from Rockingham County to Maine will lower one’s rent, as average rents are lower in Maine than in New Hampshire.

Apartmentlist.com puts the average rent for a one-bedroom apartment at $952 in Maine and $1,329 in New Hampshire.

Home prices are lower in Maine too.

The median home price in New Hampshire is about $430,000. 

In Maine, it’s about $350,000.

Maine and New Hampshire have almost identical populations. Maine has 1.34 million people, and New Hampshire has 1.35 million people.

That’s not enough of a difference to create such huge price variations for housing.

Why would prices be so much lower in Maine?

In a word: Supply.

Maine has 101,000 more housing units than New Hampshire does, according to Census Bureau data.

That’s almost exactly as many housing units as exist in Merrimack and Cheshire Counties combined. 

If New Hampshire had 101,000 more housing units, what do you think the effect would be on home prices and rents?

A few days before the Newmarket protest, residents of Keene demonstrated exactly why New Hampshire is suffering from a severe housing shortage that has driven home prices and rents to record levels.

On Wednesday, Keene’s Planning, Licenses and Development Committee recommended unanimously that the city council send back to committee a proposed zoning ordinance that would allow more housing in the city’s rural district, the Keene Sentinel reported.

The city had proposed reducing the minimum lot size in the rural zone from 5 acres to 2. 

That’s right. The City of Keene has a rural zone with a mandatory minimum lot size of five acres. Within that zone, no house may legally be built on any lot smaller than five acres.

This is exactly the kind of government regulation that reduces the housing supply and raises prices. 

Keene officials wanted to do their part to make it less expensive to build single-family homes in large sections of the city. But about 15 people showed up to oppose the ordinance, with many saying it would change the rural character of the City of Keene. 

Spooked city officials promptly moved to withdraw and rework the proposed ordinance.

Meanwhile, prices continue to rise and pressure continues to build for legislative action. Activists are pushing hard for state laws to pre-empt local zoning ordinances or regulate prices.

If local governments don’t take more decisive action to trim regulations that limit housing supply, state-imposed solutions will come. It’s only a matter of time. 

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Modest changes to housing regulations take effect

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On August 23, a handful of state laws crafted to address New Hampshire’s housing shortage take effect. Though the big reforms were left on the Legislature’s cutting room floor, these modest changes might prove helpful. 

The splashiest change, which might prompt some warrant articles next spring, applies zoning exemptions carved out for 55+ communities to workforce housing as well. 

Most of the changes are more technical fixes to ensure that municipalities don’t stick proposed developments in a legal limbo simply by delaying or refusing to act on applications. 

These changes amount to mostly modest improvements in the system that will make it slightly less antagonistic to new housing construction. But with home prices and rents remaining at record levels, pressure to pass more powerful reforms is likely to prompt more legislation next year. 

The new laws will:

  • Require the Office of Planning and Development to create and offer training to planning and zoning boards. The initial idea was to require board member training, but that was dropped in favor of making the training available at no cost to board members. 
  • Require that any fee imposed by a local land use board be published “in a location accessible to the public during normal business hours.” Any fee not published at the time an application is submitted shall be waived. 
  • Require that by July 1, 2023, any local incentive established for housing older persons “shall be deemed applicable to workforce housing development.” Many communities exempt 55+ communities from certain zoning requirements. The idea is to create exemptions that allow housing to be built only for people who don’t have school-age children. This change would apply those restrictions to workforce housing as well. 
  • Require that local land use boards issue a final written decision for all applications, and require those decisions to “include specific written findings of fact that support the decision.” Failure to offer specific, written findings of fact would be grounds for automatic reversal by the Superior Court.
  • Require zoning boards of adjustment to issue a final decision on an application within 90 days of receiving the application. 
  • Require planning boards to determine whether submitted applications are complete at the next regularly scheduled meeting, or within 30 days after receiving the application. Boards must then act on an application within 65 days of determining that it’s complete.
  • Require selectmen or city councils to certify approval of a plat if the planning board fails to act within the allotted time. Failure of selectmen or city councils to act will constitute grounds for the Superior Court to act if petitioned to do so by the applicant.
  • Allow municipalities to acquire land for use as workforce housing, but not by eminent domain.
  • Allow municipalities to lease basements, ground and second floors of public buildings for residential use, negotiate the sale or lease of property for residential use, and acquire, improve, operate, maintain or promote residential developments “aimed at increasing the available housing stock within the municipality.”
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Having the ‘hottest housing market’ means you don’t have enough houses

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New Hampshire has the top two hottest housing markets in the country, as rated by real estate search website realtor.com. These ratings should be taken with a grain of salt, as they’re based in part on search queries on a single listings website. But even if the rankings are an accurate representation of the market, that’s not really great news for Granite Staters, as it’s further confirmation that the state suffers from a severe housing shortage.

Having the “hottest housing market” based on realtor.com‘s system doesn’t mean your community is the most desirable in the country. It’s a proxy to measure the intensity of the housing market. Demand is just one side of the coin. Supply is the other, and that’s a big reason why New Hampshire has claimed the top two spots on the list. 

The demand side of the realtor.com rankings is based on unique viewers per property on that website only (which is a serious limitation). Concord tops the list at 3.2 views per property. Manchester is second at 2.6. 

The proxy for the supply side of the ranking is based on how long homes stay on the market. Median time spent on the market in Concord is 13 days, according to the site. For Manchester it’s 12 days. 

Rochester, N.Y., has a median time on the market of 12 days, making it the only other community in the site’s list of top 20 hottest markets that is close to the Concord and Manchester numbers.

Such a short time spent on the market indicates not just high demand, but an extremely low supply. A balanced market is considered one that has at least six months of inventory. It would take less than a month to sell every home on the market in New Hampshire, according to the New Hampshire Housing Finance Authority.

The realtor.com ranking shows Concord and Manchester to be in the top four communities for price, behind two other New England metropolitan areas. That’s another sign that our supply is extremely low.

The top median listing prices were Portland, Maine, at $549,000, Burlington, Vt., at $484,000, Manchester at $478,000, and Concord at $457,000. 

Concord and Manchester had higher median asking prices than Worcester, Mass., Springfield, Mass., Hartford, Conn., and New Haven, Conn. 

A housing growth map published this week by Axios helps illustrate the underlying supply problem. It shows the percent change in housing units from last July to this July, by county.

Only three counties in New England experienced at least a 1% increase in housing units in the last year. Grafton County was the only one in the Granite State.  

The New Hampshire Housing Finance Authority’s annual Housing Market report, released last month, again noted that it “would take at least 20,000 housing units to achieve a balanced market” in the state.

New Hampshire is indeed a highly desirable place to live. The combination of remote work and the pandemic have boosted demand for homes in the Granite State. With remote work now a permanent and growing feature of white collar employment, and blue state refugees seeking low-tax jurisdictions from which to live and work, demand for homes in New Hampshire is likely to remain elevated for years. 

But it’s important for policymakers and voters to understand that this is not the cause of New Hampshire’s housing shortage or high prices. Housing prices in the state have risen steadily since 2012. The recent bump in demand just adds to the previously existing imbalance. 

New Hampshire was in a housing shortage long before the pandemic. That shortage will remain, as will the resulting high prices, until supply is increased enough to balance demand. 

Being labeled home to the nation’s “hottest housing market” would be nice if that term measured demand only. In reality, it’s further confirmation that we don’t have enough housing.

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Will local governments pass rising costs to taxpayers?

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When inflation comes for your property tax bill, will your local officials be prepared?

Greed is the real cause of inflation, according to the President of the United States, progressive senators and left-wing activists. 

You, simple American selling driftwood sculptures on the roadside to cover gas money, are merely the victim of corporations who greedily raise prices so they can pocket record profits. 

So when rising prices hit local governments, which are entirely altruistic and never motivated by a desire to spend other people’s money, they’ll absorb the costs and not raise taxes, right? 

Rising costs have already hit New Hampshire municipalities hard, WMUR has reported.

Governing magazine reported in April that “state and local governments are having to contend with a range of fiscal challenges. Inflation is at a 40-year high, meaning the cost of capital projects and even routine service delivery is going up. The tight labor market means governments are having to increase salaries, which in turn puts upward pressures on pension costs. Already, rising interest rates are limiting the success of governments in issuing taxable bonds.”

And then there are the self-inflicted cost increases. Manchester has approved a $15 minimum wage for full-time, hourly city employees, and the city Board of School Committee is mulling one for the schools as well. 

These wage hikes were initiated not to keep up with market pay rates, but as part of the “living wage” movement. 

Raising pay to at least $15 an hour, even if qualified people are willing to do the same work for less, is held to be a moral imperative.

The real moral imperative, however, is to spend taxpayer money efficiently and effectively. Paying more than necessary for goods and services is not an obligation of government; it’s a violation of government’s obligation to the taxpayer. 

One test of how aggressively local governments pursue efficient management of taxpayer resources will come during the next round of local budgeting. We could see then whether local officials sought to protect taxpayers from rising prices, or whether they passed costs on with little regard for people’s ability to pay. 

(Toronto this spring approved a tax increase double the normal size, citing inflation.)

Another test of whether local governments are willing to help fight inflation will come at local planning and zoning board meetings, and on local ballots next spring. Are these boards willing to roll back the most restrictive land use regulations so the private sector can build more housing, more warehouses, more gas stations, more pipelines?

If municipalities do cite higher costs as a justification for tax increases, will progressives denounce them as greedy? Or is greed, to progressives, a vice that afflicts only the private sector?

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In last half century, Manchester limited its own growth by limiting new housing

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In 1970, Manchester had more than enough rentals for all who needed one. Over the course of the next half century, the city created its own housing shortage. 

It’s a story repeated in many communities throughout New Hampshire. Manchester offers a case study based on Census figures.

Manchester had 36,024 total housing units in 1970, according to U.S. Census Bureau data. In 2020, the city had 49,445 housing units. That’s an increase of 37% in 50 years. 

By comparison:

  • Salem’s housing units grew from 6.795 in 1970 to 12,005 in 2020, an increase of 76%. 
  • Nashua’s housing units grew from 20,984 in 1970 to 37,933 in 2020, an increase of 80%.
  • Derry’s housing units grew from 4,279 in 1970 to 13,539 in 2020, an increase of 216%.
  • Total statewide housing units increased from 280,962 in 1970 to 638354 in 2020, an increase of more than 127%.

Those are total units, not just rentals. But you can see the rental shortage in the vacancy rate. Manchester’s rental vacancy rate fell from 5.4% in 1970 to below 1% today. 

(New Hampshire suffers from a similarly low vacancy rate, also caused by a shortage of rentals. Local planners in many communities have preferred to approve single-family homes rather than rentals.)

Because Manchester did not allow the construction of enough housing, the city’s population growth rate lagged the rates in some other municipalities. 

From 1970-2020, Manchester’s population grew by 32%. During the same period, Nashua’s population grew by 64%, Derry’s by 95%, and Salem’s by 342%. New Hampshire’s population grew by 87%. 

Because city officials chose to limit growth, Manchester’s population and economy have grown at a slower rate than the rest of the state as a whole. Artificially limiting the city’s housing supply created a drag on the city’s economic growth and cultural life.

If city leaders want to stimulate Manchester’s economy, revitalize its public schools, increase its tax base, and enhance its cultural life, goal No. 1 should be to approve a lot more housing, with an immediate emphasis on rentals. 

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Addressing three myths that block new apartment construction

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Though rental housing is in tremendous demand statewide, its share of new building permits issued is shrinking. In 2020, single-family homes represented 59% of new building permits issued in the state, up from 50% the year before. It’s become harder to build multi-family housing in New Hampshire as opponents have become very effective at organizing to block new projects.

With too few apartments being built, the state’s rental vacancy rate has fallen to 0.6%, and average rents, already at record highs last summer, have continued to rise. Rental data tracking site Rent Cafe pegs Manchester’s average rent at $1,646 and Nashua’s at $1,829. The Union Leader reported this past weekend that “stiff rent increases are hitting New Hampshire residents.” 

For both single-family homes and rentals, the record price increases are caused by critical supply shortages. But rentals tend to face stronger local opposition when developers propose projects that would reduce the shortage.

Most of the opposition is caused by persistent myths about multi-family housing’s impact on local communities. With communities finally taking a greater interest in approving new housing projects, it will be important to counteract those myths. 

Fortunately, we have the data to do that. 

The Apartments Lower Home Values Myth

The myth that probably generates the most passionate opposition to new multi-family developments is that they will drive down nearby home values. As a rule, it’s not true.

“Single-family homes located within 1/2 mile of a newly constructed apartment building experienced higher overall price appreciation than those homes farther away,” concluded a University of Utah study last year.

Harvard University’s Joint Center for Housing Studies looked at previous research on this topic a few years ago and summarized the results this way:

  1. “Houses with apartments nearby actually enjoy a slightly higher appreciation rate than houses that don’t have apartments nearby.”
  2. “…working communities with multifamily dwellings actually have higher property values than other types of working communities.”
  3. “…proposed multifamily housing rental developments do not generally lower property values in surrounding areas.”

The Apartments Worsen Traffic Myth

“By any measure, it is clear that single-family houses generate more automobile traffic than apartments – or any other type of housing,” Harvard’s Joint Center for Housing Studies concluded in a summary of research on the topic. 

There are several reasons for this. Single-family homes have more residents per unit and more cars per unit than apartments do, and “single-family owners use their cars more often than apartment residents use theirs. On average, cars in single-family houses make 18 percent more trips during the week, 31 percent more trips on Saturday, and 41 percent more trips on Sunday than cars owned by apartment residents.”

The Apartments Raise Property Taxes Myth

This myth is based on the assumption that apartments will flood public schools with students, which will require tax increases. But apartments bring fewer children than single-family developments do. 

Data from Harvard’s Joint Center for Housing Studies shows that out of 100 single-family homes, 51 will have school-age children, but out of 100 apartments, only 31 will have school-age children. “The disparity is even greater when considering only new construction: 64 children per 100 new single-family houses vs. 29 children per 100 new apartment units. Wealthier apartment dwellers have even fewer children (12 children per 100 households for residents earning more than 120 percent of the area median income, AMI), while less wealthy residents earning less than 80 percent of AMI still have fewer children (37 per household) than single-family homes.”

And because apartments often are taxed as commercial property, they usually generate higher property taxes than single-family homes do. 

“Thus, apartments actually pay more in taxes and have fewer school children on average than single-family houses. In other words, it may be more accurate to say that apartment residents are subsidizing the public education of the children of homeowners than the reverse,” the Harvard researchers conclude.

New Hampshire needs tens of thousands of new housing units, and multi-family housing will have to be a large part of that mix. As housing tastes change and home prices surge, rentals are increasingly in demand. Though more people want this type of housing option, local opposition based on myths often succeeds in blocking new construction. Debunking the myths has to be part of any plan to get more housing approved in New Hampshire. 

When opponents claim that apartments will increase traffic, raise property taxes, and lower home values, Granite Staters who would would like to see more housing options should be prepared to counter those myths with data.

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N.H.’s Top Ten most housing-restricted municipalities

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The Josiah Bartlett Center’s new study of local residential land use regulations provides a first-ever ranking of N.H. municipalities’ local housing restrictions.

The study ranks N.H. municipalities by the inelasticity of their housing supply, that is, by how much local conditions, especially land-use regulations, restrict the ability of the private sector to provide new housing in response to rising demand. 

Excessive residential land use restrictions have sharply restricted New Hampshire’s housing supply, our study finds. That supply shortage has led to dramatically higher housing prices, increased income segregation, larger gaps in educational performance, slower economic growth, and slower population growth.

The ten municipalities where housing is most restricted are:

 

1.     New Castle

2.     Rye

3.     Portsmouth

4.     Newington

5.     New London

6.     Hanover

7.     North Hampton

8.     Moultonboro

9.     Hampton Falls

10.  Waterville Valley

 

The ten municipalities where housing is least restricted are:

  1. Ellsworth
  2. Hart’s Location
  3. Hale’s Location
  4. Stratford
  5. Northumberland
  6. Berlin
  7. Colebrook
  8. Stewartstown
  9. Warren
  10. Clarksville
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Local land use regulations drive N.H. housing shortage, Bartlett study shows

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Why have house prices and rents increased so much in New Hampshire? A new Josiah Bartlett Center for Public Policy study finds that residential land use regulations, mostly at the local level, are a major cause.

Examples of local regulations that prevent people from building homes include: minimum lot sizes, frontages and setbacks, single-family-only requirements, bureaucratic requirements for accessory dwelling units, maximum heights and densities, minimum parking requirements, historic and village district requirements, municipal land ownership, subdivision regulations, impact fees, and simply the unwillingness of zoning boards to issue variances.

Widely available measures show that New Hampshire is one of the most restrictive states in the country for residential development. By suppressing building, land-use regulations drive up the price of housing as demand rises. Removing or relaxing these regulations would allow prices to rise more gradually.

Consequences

The consequences of housing scarcity for our state are significant. This study finds that residential land use regulations are associated with growing socioeconomic segregation and slowing population growth.

As housing becomes more expensive, fewer people are moving to New Hampshire, especially to those towns that are most expensive. Those who stay are disproportionately wealthy and college-educated, while middle- and lower-income families leave because they cannot find affordable housing.

Costly housing in towns with better schools also limits families’ access to educational opportunity. Finally, the sprawl caused by anti-density policies such as minimum lot sizes increases drive times and road maintenance costs and worsens air and water quality.

Causes

New Hampshire municipalities have enacted these restrictions on growth for several reasons. First, there is a widespread perception that allowing home-building would increase the number of children in local schools. However, the other side of the home-building equation is that new home construction leads to substantial growth in the tax base, relieving the tax burden on the rest of the town. Moreover, school populations are falling across most of the state, and so adding more children would not necessarily require more spending. So the “fiscal” motivation for restricting home-building does not make much sense today.

Rent-seeking

The main reason for growing development restrictions seems to be “rent-seeking.” In other words, some homeowners in the towns with the biggest housing demand see zoning as a way of boosting their wealth by artificially limiting the supply of housing.

This process may have gotten out of hand now, though, as pandemic-driven housing demand has well outstripped supply. Many Granite Staters have seen their homes rise in value, but this rise may be merely notional, because it is now so difficult to find a new house after selling the old one. The rapid aging of the New Hampshire population makes reform to relax local planning and zoning regulations all the more crucial.

As the rent-seeking explanation would predict, the places with the most stringent rules on building new homes tend to be the ones that historically saw big growth in housing demand. Portsmouth, Hanover, and some of their surrounding towns are among the most regulated towns in the state, along with a few Lakes Region and White Mountains locations. Some of the wealthier suburbs of Manchester and Nashua – Hollis, Windham, and Bedford – are also near the top of the list.

By contrast, the inland Appalachian belt of New Hampshire, running from western Cheshire County to the North Country, is the least regulated part of the state. There’s a definite trend in the historical data, whereby towns that saw large growth in the 1960s and 1970s enacted restrictions that then choked off growth in the later 1980s and 1990s. By contrast, population density does not seem to correlate with increases in regulatory stringency, even though it may have been a motivation for towns to adopt zoning to begin with. Some of the towns with the strictest rules have low densities and very little industrial activity, like Hanover and Lyme.

Another correlation observed in the data finds that towns that lie nearby other towns that increased their restrictions on housing were themselves more likely to enact new restrictions on housing. In other words, municipal land-use regulation in New Hampshire looks like a kind of “arms race.” When one town tightens, others are also provoked to tighten so that they don’t get a disproportionate share of new housing construction. As a result, all towns end up with less construction and stricter regulations than they really want.

Policy solutions

To get out of the arms race and make decent homes affordable to Granite Staters of all ages and walks of life, policymakers and citizens have to understand how local land use regulations affect the supply and price of housing. Better policies will come from a better understanding of the downstream effects of these regulations.

In addition to showing how land use regulations affect housing supply and prices, this study suggests several state- and local-level policy changes that could provide relief.

At the local level, zoning ordinances could be revised to allow homes to be built on smaller lot sizes, with smaller frontages, and with smaller setbacks. Building permit caps could be removed. Multi-family housing options, such as duplexes and triplexes, could be allowed in additional locations. In urban areas, minimum parking and maximum height restrictions could be eased.

At the state level, the state could enact a regulatory takings compensation law, so that municipal governments would have to compensate landowners for new regulations that substantially take away the value of their property. The state could directly preempt the most egregious forms of exclusionary zoning, such as minimum lot sizes above a certain level and building permit caps. The state could also authorize towns to decentralize planning authority to neighborhood or even block levels. At such a small level, residents are unlikely to adopt rent-seeking forms of zoning, because builders and home-buyers could easily go elsewhere. State government could authorize municipal land-use compacts that would allow neighboring municipalities to offer multi-community planning, where the impacts of regulation on the whole commuting area could be considered. Finally, an open-enrollment law for public school choice would at least ameliorate one of the negative consequences of exclusionary zoning for middle- and low-income families: being locked out of good schools.

Top Ten Municipalities Where Housing Is Most Restricted

The study ranks N.H. municipalities by the inelasticity of their housing supply, that is, by how much local conditions, especially building and land-use regulations, restrict the ability to build new housing in response to rising demand. The ten most inelastic, regulated municipalities are:

  1. New Castle
  2. Rye
  3. Portsmouth
  4. Newington
  5. New London
  6. Hanover
  7. North Hampton
  8. Moultonboro
  9. Hampton Falls
  10. Waterville Valley

Download a copy of the full study here: Residential Land Use Regulations in New Hampshire Report

If you missed the event, the full video is posted on our YouTube channel here.

NOTE:

The Center for Ethics in Society and the Josiah Bartlett Center for Public Policy have been gratified by the overwhelmingly positive response to the study, “Residential Land Use Regulations in New Hampshire: Causes and Consequences,” authored by Center for Ethics Director Jason Sorens and published by the Josiah Bartlett Center for Public Policy. However, in referring to this study in some contexts, we created some confusion by using the term “building regulations” instead of “land-use regulations.” In using the terminology of “building regulations” we did not intend to designate “building codes,” but rather regulations governing where and how housing is to be built on land in a given community. We do apologize for any confusion we may have caused.
 
To clarify, the overwhelming majority of the costs of developing new housing are due to land-use regulations found in zoning ordinances and the decisions of planning and zoning boards to approve or not approve projects. All the research suggests that life safety codes add only a small amount, in percentage terms, to the overall cost of housing. Accordingly, we have revised the title of the study to refer to “land use” rather than “building” regulations. Land use regulations are restricting what can be built where, and driving up the cost of housing.
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Zoning and Portsmouth’s ‘cursed’ gas station

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In May, Foster’s Daily Democrat reported the exciting news that celebrity chef Bobby Marcotte planned to convert an abandoned Portsmouth gas station into a unique Asian-Spanish fusion restaurant. 

Portsmouth has a certain cachet, cultivated by its inhabitants as well as its government. One might think that a super-fashionable, high-concept restaurant helmed by a local celebrity chef would be just the sort of thing to sail through the city’s approval process.

One might also be unfamiliar with just how absurd local zoning restrictions can be.

On August 17th, the restaurant concept that was met with such fanfare in May was rejected by a 4-3 vote of the Zoning Board of Adjustment. The Portsmouth Herald report can be read here.

The reason for the rejection? 

To make the restaurant work, Marcotte needed the ability to seat up to 100 customers during warm weather. The current zoning caps restaurant capacity at 50. 

Larry Gormley, attorney for Marcotte and his business Partner Paul Simbilaris, explained that the converted space would seat 50 people inside year-round, with an additional 40-50 people outside on a new patio when weather permits. 

The capacity would be “up to 90 or 100 at peak in the appropriate season,” Gormley said.

Board member Beth Margeson objected, saying the additional seating would bring too much traffic and parking to the neighborhood.

Gormley pointed out that the restaurant is within walking distance of the city’s new parking garage, which is where restaurant employees will be required to park.

Gormely didn’t say, but might have added, that the location is 0.4 miles (less than a 10 minute walk) from TWO parking garages, including the city’s new, $26 million Foundry Place garage, which the city itself acknowledges is only half full on a daily basis.  

The city built that garage for the express purpose of enabling additional commercial activity in the city, given the relative scarcity of on-street parking. 

The city has had several meetings to try to figure out how to increase the five-story garage’s use, as it has remained well under capacity since it opened in 2018. 

And yet the Zoning Board of Adjustment continues to cite on-street parking as a reason to reject commercial development within a short walk of the multi-million-dollar taxpayer-funded garage. 

“We think we’re presenting an amenity for people to walk to and from the area,” Gormley explained. 

But a majority on the board couldn’t see that.

Some members fixated on the current zoning’s 50-seat capacity limit and the idea that an increase might have people parking on side streets when the patio is open. 

Gormley didn’t even win over any board members when he described this restaurant’s food as “Asian-infused tacos.”

Not a single board member leapt up and screamed, “ASIAN TACOS!!”

Which seems weird. Not ASIAN TACOS. Those seem delicious. It seems weird that no one stood up and screamed, “ASIAN TACOS!!”

Even weirder, four Zoning Board members willingly chose an abandoned gas station over… ASIAN TACOS.

Not all board members chose a vacant service station over tacos filled, presumably, with things like General Tso’s chicken or seafood tempura. 

Board member Arthur Parrott said the restaurant “will be a net gain to the neighborhood and the city as a whole because the one thing that’s clear to everybody is what’s there now is an eyesore and is long deserving of an improvement. Does a gas station belong there? No, but it’s there, and we have to deal with it.”

That’s precisely the choice the board had. It was either an abandoned gas station, or a 50-seat ASIAN TACO restaurant with an additional 40-50 seasonal patio seats. 

But the nays envisioned a third option — a magical Ideal Use that would perfectly fit the zoning ordinance and be commercially viable for the long term, but which, mysteriously, no one has proposed in all the years the ordinance has existed.

“I think this is just too much restaurant use,” Margeson said.  

She added later that the property is “just seemingly cursed or something, I don’t know.”

Explaining his yes vote, Parrott said he’s voted four times on proposals to convert the property to a better use, and yet it remains an eyesore gas station. 

Given that record, maybe the property is cursed. 

Maybe, just maybe, the curse is that city officials have dictated an extremely narrow range of approved uses for the property, none of which is economically viable under current market conditions.

A majority of the board imagines that on some glorious day, someone will appear before them and propose a use that is both profitable and consistent with the severe restrictions set by the city’s ordinance.

Until that day, however, they’ll ensure that the property remains an abandoned gas station.

/by