Baby, please don’t go banning “price gouging” of concert tickets

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The West’s top musical acts all play Los Angeles (population 3.8 million), one of the world’s great concert cities. Legendary singer Van Morrison scheduled his new U.S. tour to start there in October—two nights at the famous Orpheum Theater, Oct. 19th and 20th. But then some guys from New Hampshire called him.

Morrison’s tour schedule had him flying to L.A. from England, where he is set to perform at the 1,700-seat Brighton Dome on Sept. 27th and 28th. The enterprising team behind Jimmy’s on Congress, a hot young jazz club in Portsmouth and one of the best music venues on the Eastern Seaboard (really), spied an opportunity. According to New Hampshire Business Review (NHBR), they reached out to Van Morrison’s team to see if he could stop in Portsmouth for a pair of shows on his way to L.A.

This is a little like the Toledo Mud Hens asking the Los Angeles Dodgers to stop for a three-game series on their way to New York. Van Morrison plays in large theaters that seat thousands. Jimmy’s is a night club that seats 312, mostly at tables and the bar (where the cocktails are great).

It was a plan so crazy it just might work.

The booker at Jimmy’s told NHBR that Van Morrison’s team said he could do it on one condition, NHBR reported. The club had to make some tickets available through Ticketmaster’s dynamic pricing system. 

The old-fashioned way of selling concert tickets is to use a fixed price. That’s the number that used to be printed on paper tickets (remember those?). Anyone who tried to get tickets to hot shows in the 1970s and ‘80s can tell you the problems with that system. You had to go wait in long lines at the venue (or try to get through on the phone), and the top shows would sell out quickly, with no way to find second-hand tickets other than answering a newspaper classified ad that you hoped was real, knowing a guy who knew a guy who knew a guy whose girlfriend couldn’t go that night, or traveling to the venue the night of the show in the hope that someone would sell you a ticket on the street. 

Today’s technology lets anyone anywhere have a chance at buying tickets online, which obviously has its own drawbacks, most notably quick sellouts and sabotage by bots. It also lets venues adjust ticket prices in real time, which is a feature not a bug.

Using dynamic pricing, the most valuable seats for a high-demand show will rise in price until they hit their market clearing value. People outraged by this system think the “actual price” or “true value” of a concert ticket is whatever number the venue decided to offer the tickets for the moment they went on sale. But that number doesn’t mean much.

As we discussed previously, a ticket’s printed price isn’t necessarily the actual market value. It’s usually set somewhat below market value to encourage a sellout. Venues make more money on concessions, so their incentive is to fill the seats. 

With dynamic pricing, tickets start at a certain price, but as in an auction the price can change if more people keep bidding for the same item.

Jimmy’s used dynamic pricing for some of its Van Morrison tickets. The top seats there went for $2,502.50 and $3,102.50 each, plus more than $500 in fees, according to NHBR.

After the show sold out, the predictable complaints about “price gouging” could be heard on local talk radio and on social media. People claimed that Van Morrison finally came to New Hampshire and they were denied tickets because the prices were so high.

Wrong.

Van Morrison came to New Hampshire only because the prices were so high. 

His October 19th show in L.A. sold out immediately. Tickets for the October 20th show range from $183.40 in the back row of the balcony to $344.85 for a restricted-view seat in the second row of the orchestra. Sorry, but you were never going to see him for $100 at a 312-seat club in Portsmouth. To make that small venue work, prices had to be many times higher than for one of his regular shows.

Dynamic pricing didn’t deny Granite Staters a chance to see Van Morrison. It gave Granite Staters a chance to see Van Morrison. Far from being “gouged,” fans were given a once-in-a-lifetime opportunity to see one of the greatest pop singers of the last 60 years at a small club in northern New England. Honestly, that’s amazing.

In the last legislative session, some legislators who don’t understand how prices work tried to ban “ticket scalping.” After this week, you can be sure someone will try to ban “gouging” as well as “scalping” next year. 

All such bans are really efforts to impose by law an economic misconception, which is that “price” is the same as “value.” It isn’t. 

A price set by a vendor might or might not be close to the actual amount of money consumers are willing to pay. When it isn’t, prices adjust up or down depending on the behavior of consumers. 

No one complains when vendors have to slash prices to clear inventory that they priced too high. But somehow it’s supposed to be immoral if vendors, either at the point of sale or in a secondary market, see that the initial price was too low and adjust the numbers up rather than down.

Calling this immoral is nonsense. Trying to ban it is harmful. Everyone would be better off if legislators stayed out of the way and let concert prices sort themselves out in an open and competitive marketplace. Consumers are best served when their preferences are expressed through the market rather than invalidated by government edict. 

Governments only ban what people would otherwise do voluntarily. If people would willingly pay thousands of dollars to have dinner eight feet away from Van Morrison in Portsmouth, as opposed to spending thousands to fly to England or California to see him in a large venue, the government has no business trying to stop them.  

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A few regulatory changes could make N.H. first in freedom for education entrepreneurs

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There’s more that can be done to make New Hampshire a freer state for education entrepreneurs looking to start small, decentralized, and unconventional educational environments, but so far the state is doing better than most.

That’s according to the Education Entrepreneur Freedom Index released by the yes. every kid. foundation. 

Of 10 possible points that a state could earn, only three states attained the high score of seven. New Hampshire finished with six points, one of only 10 states with at least six or more points in the Index.  

The Index measures the extent to which regulations affect education entrepreneurs in each state, the imagined environment of which is a small, non-religious educational setting with school-age learners from a group of families participating in educational activities for part of the week. 

The Index evaluates each state according to 10 questions that account for the following five regulatory areas: business registration, homeschool laws/regulations, nonpublic school laws/regulations, child care laws/regulations, and occupancy codes. The questions are:

  1. Can the educational environment operate without getting a state business license under state law?
  2. Does the state allow for unlicensed, unregistered, unaccredited, or unapproved non-religious, nonpublic schools?
  3. Does the state allow nonpublic schools to operate without imposing educational requirements on teachers?
  4. Does the state’s homeschool law support or facilitate the operation of the educational environment?
  5. Can the educational environment operate in accordance with the state’s homeschool law without registering?
  6. Does the state allow homeschool instruction without imposing educational requirements on instructors?
  7. Does the state allow child care facilities to operate without imposing educational or qualification requirements on administrators/supervisors/teachers?
  8. Do the state’s child care laws and regulations provide a clear exemption for “Drop In/Open Door” programs?
  9. Do the state’s child care laws and regulations provide a clear exemption for educational programs for school-age children?
  10. Does the state adapt the application of occupancy code requirements in recognition of the existence and needs of small learning environments?

States with more relaxed homeschool and nonpublic school laws/regulations score higher, as entrepreneurs have an easier time getting started in these states. 

Child care regulations represent a near ubiquitous obstacle to alternative learning environments, and occupancy codes are disproportionately burdensome to small learning environments, the authors noted in a presentation upon the study’s release.

Though New Hampshire lost a point for rules requiring state approval for nonpublic schools, the state could become much more friendly to education entrepreneurs, the study’s authors conclude, primarily by relaxing some child care rules and local regulations.

State laws setting strict education and professional qualifications on child care personnel and the absence of clear exemptions for drop-in/open-door programs cost the state two points in the Index. The lack of clear exemptions for small learning environments such as microschools is a problem in New Hampshire. 

Some states, such as Oklahoma, exempt programs consisting of school-age homeschoolers three years of age and older from its child care licensing laws and regulations. 

New Hampshire is marked down on question 10 because of the local zoning and occupancy codes that often represent onerous barriers for aspiring microschools. 

As the Index makes clear, local zoning laws and regulations have emerged as primary roadblocks to the proliferation of microschools across the country with the growing education freedom movement. And the Live Free or Die state, with its especially burdensome web of local exclusionary zoning rules, is no exception. 

One way New Hampshire could improve its score in the Index is to loosen these local zoning restrictions hindering small learning environments. 

While some towns are more lenient than others, often the most daunting hurdle to starting a microschool is finding a permissible location. This is especially true if the microschool founder doesn’t want to operate out of their own home. 

Although homeschooling is only lightly regulated in New Hampshire, those microschools that are more formalized than homeschool co-ops but less formalized than private, nonpublic schools are left in a legal gray area where they’re prohibited from many zoning districts throughout the state because they’re not a permitted use in those areas.

The main reason for that is because education is not allowed by right in New Hampshire.

Recent actions taken by state lawmakers in Utah can offer guidance to legislators in New Hampshire on how to reduce the Granite State’s zoning burden on microschools. 

With just a few words, Utah legislators struck a huge blow to local zoning ordinances impeding the establishment of microschools throughout the state. Senate Bill 13 states, in part, “A charter school, home-based microschool, or micro-education entity shall be considered a permitted use in all zoning districts within a municipality.” 

Signed into law by Gov. Spencer Cox, microschools are now recognized as businesses without any location restrictions in Utah. 

The bill defines a “home-based microschool” as “an individual or association of individuals that: (i) registers as a business entity in accordance with state and local laws; and (ii) for compensation, provides kindergarten through grade 12 education services to 16 or fewer students from an individual’s residential dwelling, accessory dwelling unit, or residential property.” 

Any alternative/unconventional educational environment that fits this definition could set up shop in any zoning district within any Utah municipality under SB 13. As such, the language in Utah’s bill essentially makes education allowable by right across that entire state. 

Such a path forward is a realistic option for New Hampshire to take to become an even freer haven for education entrepreneurship, and state lawmakers wouldn’t even need to define “microschool” in law to do so. 

Just this past legislative session, New Hampshire state lawmakers did essentially the same thing for home-based child care. House Bill 1567 requires local zoning and planning regulations to allow family or group child care programs as an accessory use (by right) to any primary residential use throughout the state.

The same thing could be done for education, as we recommended in March.

By providing that education is similarly allowed by right in all zoning districts within a municipality (and all nuisance laws still apply), New Hampshire could tear down all local exclusionary zoning laws prohibiting microschool usage across the state in one fell swoop. 



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Innovation means bulldozing places like Steeplegate Mall

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Steeplegate Mall in Concord is coming down. The city granted approval this month for the building’s demolition. 

Yes, the owners of a mostly vacant large building that has become a magnet for crime (181 police calls in the last two years) needed the government’s approval to take it down and replace it with infrastructure people will actually use, like homes and a Costco.

The mall’s been largely empty since 2022. The redevelopment proposal (mixed use, retail and residential) has been moving along relatively quickly, as these things go. There haven’t been the usual disruptive community meetings with protests and long delays to get multiple variances just to replace an eyesore with something the city actually needs and people actually want.

That’s because the city rezoned the mall property years ago. It sits in a Gateway Performance District, which allows multiple uses and is designed to attract development. That’s made all the difference.

The city loosened land use restrictions to encourage economic development, and guess what happened? Economic development. 

Concord officials anticipated that the land where a huge suburban shopping mall sat might one day be put to a different, better use if market conditions changed. Because they had that foresight, a mammoth commercial structure no longer in demand will be converted relatively easily into buildings that are in very high demand.

A lot of the news stories about the mall in the past two years have focused on what Concord is losing. An outdated movie theater, a pickleball club, a community theater. An NHPR story mused about what the evictions from the mall would mean for Concord’s arts scene. 

It takes a stupefying lack of imagination to see a defunct shopping mall and lament what is lost rather than celebrate the possibilities of its transformation. 

Humans, left to their own devices, will build. They’ll create vibrant communities in which entrepreneurs devise ingenious ways of making their fellow citizens happy. Unless government forbids it. 

Governments forbid behaviors for one reason. People would otherwise do the forbidden things.

Hurting people and taking people’s stuff ought to be forbidden. But building a residence beside (or on top of) a store? Building a tiny house on a half-acre lot? Placing your home 46 feet instead of 50 feet away from the curb? These are not behaviors that harm others. 

Yet governments all across New Hampshire ban perfectly reasonable property uses like these. Why? Because some people prefer them. Without a government prohibition, people would build the kinds of mixed-use residential and commercial properties the market demands. And that just can’t be allowed, even in the “live free or die” state.  

Tuscan Village in Salem was once a horse track. When Tuscan Village was proposed, it was illegal. Salem had to change its regulations to make it legal for an entrepreneur to turn an abandoned dog track into a beautiful mixed-use residential and retail village.  

If New Hampshire wants to live up to its motto, it must repeal or relax many of the regulations that make it illegal for entrepreneurs to unleash their creativity. Local governments have to stop worrying so much about preserving the past and let entrepreneurs imagine the future. Preservation has its place. But innovation does too. And right now too many of our development rules are focused on preservation at the expense of innovation.

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On housing, Granite Staters want more development, less gov’t interference

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On housing, a consensus has settled in among Granite State voters. It can be summarized in four main points:

  1. New Hampshire desperately needs more housing.
  2. Local governments should lift regulatory barriers to the construction of new housing.
  3. The state government should act to prompt local regulatory changes.
  4. Multifamily housing is acceptable in suburbs and rural areas.

The St. Anselm College Center for Ethics in Society has polled New Hampshire voters on housing since 2020. The 2024 poll, released this week, shows that voters’ views have solidified into a strongly pro-construction, anti-regulatory, pro multi-family majority. 

A supermajority (75%) agrees with the statement, “my community needs more affordable housing to be built.” 

Roughly 60% (59%-62%) welcome the construction of affordable housing in their own neighborhoods, the relaxation of local land use regulations to allow that construction, the building of multifamily housing in suburban and rural zones, and state intervention to make all of this happen. 

In the 2020 poll, just 28.7% agreed that local governments should relax their planning and zoning regulations to allow the construction of more housing. 

In the spring of 2021, the poll found a 10% increase, to 39%, of voters saying local governments should relax planning and zoning regulations. 

In the fall of 2021, the Josiah Bartlett Center for Public Policy released our landmark study showing that local land use regulations were the primary cause of the state’s housing shortage.

The next year, the percentage of N.H. voters who agreed that local planning and zoning regulations should be relaxed to allow for more housing shot up to 52%. It now stands at 61%.

High-profile conversations about specific policy problems matter. By 2021, Granite Staters were becoming more receptive to the idea that local land use regulations were a problem. A push by the Bartlett Center and others to identify the root cause of the housing shortage and propose solutions helped more people understand the problem and demand the right fix, rather than continue to falsely blame developers or the market.

Today, a strong majority of voters understands the problem and demands that it be fixed. Yet local voters and boards have not gotten the message. 

A few recent examples:

“Hampton Falls rejects proposed 88-unit condo project on Route 1”

“Owner: McIntyre building still a parking lot due to Portsmouth zoning rules”

“Stratham select board sues town zoning board over 59-unit condo approval”

“Exeter 120-plus apartment project faces opposition”

“Portsmouth board rejects plan to raze 1900-era home for four new houses”

“Board nixes variance for North Newport senior housing project.”

New residential developments are being approved in New Hampshire. But boards continue to reject housing proposals simply because pre-existing regulations don’t allow the type of housing the market now demands. 

In the Hampton Falls and Stratham stories linked above, boards rejected variance requests because members didn’t want to contradict old, outdated rules.

In the Newport example, the rural zone doesn’t allow multifamily housing. Since the developer could conceivably propose a different use for the property than its highest, best, most in-demand use (multifamily housing), the board rejected the proposal. 

Though Granite Staters now say overwhelmingly that they welcome multi-family housing in suburban and rural zones, local boards continue to reject such proposals simply because old rules don’t allow them.

This discrepancy between voter and market demand on one side and inflexible regulations on the other cannot continue indefinitely.

The Center for Ethics in Society polling shows that on questions of housing, large majorities of New Hampshire voters are on the side of developers, not local regulators. And they want the state to act if local governments won’t. 

Voters say housing is the “most important problem facing New Hampshire,” the UNH Survey Center found last month. Thirty-six percent of voters named housing as the state’s top problem. In second place was education, with only 7% of voters naming it the top problem. 

In the most recent legislative session, the House Education Committee dealt with 156 bills. 

The number of bills referred to the Special Committee on Housing? Nine.

Housing beats education as the top concern of voters by 29 percentage points. But legislators, like local land use boards, are operating on outdated beliefs. They’ve yet to adapt to the changing voter preferences. 

But there’s an election this fall, and we’re already seeing candidates campaign on pro-housing agendas. 

Given the firmly solidified pro-housing position of most voters, hardened each month by news of rising home prices, and the slow pace of change at the local level, it would be political malpractice for lawmakers not to make significant regulatory reform a top priority next year.

For years, we’ve predicted exactly this development. The slow pace of change at the local level has voters turning to the state for solutions. So far, legislators have been reluctant to act. That won’t be the case much longer. The pressure to act is too great.

It’s a safe bet that we’ll see a significant increase in legislative proposals to address the housing shortage in 2025. People are tired of waiting for government to get out of the way and let developers solve the housing shortage government created in the first place. 

 

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On housing, New Hampshire’s No. 1 issue, 2024 offers few big reforms

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With a growing housing shortage and skyrocketing home prices as a result, the issue of housing is top of mind for Granite Staters. A June UNH Survey Center poll found that Granite Staters overwhelmingly say housing is the most important problem facing the state.

Unsurprisingly, the issue was also a top priority for legislators in 2024. And although some of the more ambitious pro-housing proposals didn’t make it through both houses, the Legislature passed a handful of modest reforms to free up the housing stock in New Hampshire.

The following are the five bills that passed both the House and the Senate and either await Gov. Sununu’s signature or have already received it:

* House Bill 1065: “relative to fire sprinkler requirements in residential buildings.”

* House Bill 1202: “relative to the issuance of permits for the alteration of driveways exiting onto public ways and relative to the definition of disability or special needs under the child care scholarship program.”

* House Bill 1359: “relative to appeals of certain zoning decisions by abutters.”

* House Bill 1361 (signed into law): “relative to municipal land use regulation for manufactured housing and subdivisions.”

* House Bill 1400: “relative to residential parking spaces, landlord-tenant law, unauthorized occupant evictions, and zoning procedures concerning residential housing.”

HB 1065 adds an exception to the state fire code for certain multifamily buildings. Under current law, existing multifamily structures consisting of more than two dwelling units must have a fire suppression or sprinkler system installed on the property. HB 1065 exempts existing buildings of no more than four dwelling units from this requirement unless fire sprinklers already exist on the property or are required by a nonresidential occupancy.

HB 1065 also prevents local jurisdictions from imposing stricter rules and regulations than the state fire code relative to residential sprinkler systems.

Requiring three-family and four-family buildings to have fire suppression or sprinkler systems can disincentivize developers and property owners from converting two-family buildings to four-families because of the prohibitive costs of installing them.

HB 1202 streamlines local permitting of driveways. Under this bill, a municipality must issue a driveway permit for a proposed driveway on residential land, including for multifamily use, within 60 days of the property owner’s application, putting an end to drawn-out permitting processes and preventing municipalities from wasting property owners’ time with delays.

HB 1359 limits who exactly can appeal local land-use board decisions by adding to the definition of “abutter.” Vexatious appeals of local zoning boards’ land-use decisions hinder residential development. Under current law, “any person whose property is located in New Hampshire and adjoins or is directly across the street or stream from the land under consideration by the local land use board” can appeal the permitted use in question to the local zoning board.

Under HB 1359, an abutter is “any person whose property is located in New Hampshire and adjoins or is directly across the street or stream from the land under consideration by the local land use board. ‘Directly across the street or stream’ shall be determined by lines drawn perpendicular from all pairs of corner boundaries along the street or stream of the applicant to pairs of projected points on any property boundary across the street or stream that intersect these perpendicular lines. Any property that lies along the street or stream between each pair of projected points, or is within 50 feet of any projected point shall be considered an abutter.”

In other words, not just anyone can claim to be an abutter and therefore appeal their local zoning board’s land-use decisions. Someone must be close enough to the land under consideration, and therefore have a claim to be materially affected by the permitted use, to have a right to appeal.

HB 1400, focusing on parking space requirements and unauthorized occupancies, was one of the more high-profile housing bills of the year. Originally, the bill prevented municipalities from requiring more than one residential parking space per housing unit. Under the version passed by both chambers, the bill prevents municipalities from requiring more than 1.5 spaces per unit for studio and one-bedroom apartments under 1,000 square feet, as well as for multifamily structures of 10 units or more.

Local parking requirements are often burdensome for housing developers and owners of multifamily properties to overcome because of all the land that needs to be accounted for and set aside to accommodate them. While 1.5 is not as ambitious as one, and owners of multifamily structures consisting of two to nine units will still have to abide by the whims local governments requiring two or sometimes more parking spaces per unit, 1.5 at least gives owners and developers of large housing complexes the breathing room to build without worrying about overcoming overly stringent parking edicts.

HB 1400 also allows municipalities to grant community revitalization tax relief for properties that are converted from office, commercial or industrial use to residential. This would let municipalities temporarily freeze property taxes on a building that is converted to residential use, thereby encouraging owners to make those conversions.

Sometimes local boards recommend changes to land-use regulations that would facilitate more housing development, only to see those changes rejected by voters. HB 1400 offers a remedy for this too. It would allow non-charter towns, village districts and counties that have unincorporated land to ask voters for permission to let the local governing body approve zoning changes without submitting the proposed changes to voters. If approved by voters, the local governing body would be able to change zoning laws or maps by majority vote.

Finally, after an amendment added by the Senate, HB 1400 outlaws squatting in New Hampshire. A “squatter” is someone who lives on another person’s property without that owner’s permission and without any legal claim or title to that property.

With the following language, “No person or legal entity, that is not a tenant, subtenant, or implied tenant, as defined in RSA 540-A:1, II, shall occupy residential real estate without permission of the owner, landlord, or their agent,” claims of “squatter’s rights” will have no legal basis in the Granite State under HB 1400, restoring to property owners the right to control who occupies their private property.

HB 1361, which has already been signed into law, forbids municipalities from banning manufactured housing. Prefabricated homes that are transported to sites, manufactured housing 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.

Each of these five bills, through exemptions, increased freedom, and/or regulatory reform, enhances property rights, reduces barriers to development, and makes it easier for Granite Staters to build more housing.

“The Legislature did a number of small things to ease the housing shortage, all of which had to do with giving people a little bit more freedom to use their land,” Jason Sorens, senior research fellow at the American Institute for Economic Research, said. “The most impactful reform might be letting residential developers propose alternative parking plans if the minimum requirement can be met through transit, on-street parking, or other options. But the session was also a missed opportunity in that the Senate killed more significant parking reform and by-right ADUs. Next year, they will need to get back to work on the problem.”

Among the more ambitious pro-housing bills that didn’t make it to the governor’s desk were HB 1215, HB 1291 and HB 1399. These bills represented attempts to extend the amount of time new developments are protected from local regulatory changes, allow property owners to add an additional accessory dwelling unit by right, and limit municipal restrictions on homeowners in urban residential zones who want to convert a single-family home to a duplex.

While these more far-reaching reforms didn’t make it through the Legislature, those that did represent an important first step in expanding private property rights throughout New Hampshire and reducing regulatory roadblocks to housing development.

Granite Staters want more housing, and they want enough of it to drive prices down. Whether they want it faster than legislators and local regulators have been willing to provide it is a question that might be answered only by future elections.

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Surprise: when housing supply meets demand, prices stabilize

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Though a housing shortage amid rising demand continues to push prices up in most of the country, some cities in Florida and Texas are seeing housing prices fall. How? They’ve built a lot more housing, The Wall Street Journal reports.

In most of the U.S., the limited number of homes for sale is pushing prices back toward record highs. Sale prices for single-family existing homes rose in 93% of U.S. metro areas during the first quarter, according to the National Association of Realtors. The median single-family existing-home price grew 5% from a year ago to $389,400.

Yet the market is cooling and prices have started falling in some cities in Florida and Texas, where robust home-building activity in recent years has helped boost the number of homes for sale. The two states accounted for more than a quarter of all single-family residential building permits every year from 2019 to 2023, according to Census Bureau data.

In 10 Texas and Florida metro areas, the inventory of homes for sale in April exceeded typical prepandemic levels for this time of year, according to Realtor.com. In eight of those markets, pending sales in April fell from a year earlier.

In Florida and Texas, “we’re starting to get into a buyer’s market,” said Rick Palacios Jr., director of research at John Burns Research & Consulting.

Only five of the 50 biggest markets posted year-over-year price declines in March, according to data provider Intercontinental Exchange, and four of them were in Texas or Florida: Austin, Texas; North Port, Fla.; Cape Coral, Fla.; and San Antonio.

In Portsmouth and Manchester, where new rental construction has accelerated in recent years, bringing thousands of new units onto the market, prices remain stubbornly high. Some policymakers and observers have suggested that this disproves the idea that adding more supply will lower prices. It does not. New Hampshire’s supply remains tens of thousands of units short of demand. For prices to stabilize, supply will have to approach demand, which will take decades at the current pace of construction.

Stabilizing home prices by letting the market bring supply in line with demand cannot be done overnight. It’s a years-long process. But Florida and Texas show that it can be done.

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The state says optometrists can’t do surgeries, including ones they’re trained to do

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As part of their doctorate-level education, optometrists learn how to perform minor surgeries, including some laser eye surgeries. Yet New Hampshire law prohibits optometrists from doing any surgeries, even ones they’re trained to do.

Only ophthalmologists (physicians who specialize in medical and surgical eye care) are permitted by law to perform laser procedures in New Hampshire. This restriction reduces the availability of certain eye care procedures and forces patients to go to specialists when they don’t really need one. 

Optometrists are trying to lift this outdated regulation and make some other changes to their state oversight so they can offer Granite Staters additional services they’re qualified to perform. 

Senate Bill 440 would, in a word, modernize the regulation of optometry in New Hampshire. This includes changing what constitutes the practice of optometry and moving scope of practice decisions and rulemaking authority to the state Board of Optometry (as opposed to relying on state statutes), all to treat optometry like other doctorate-level independently practicing professions in New Hampshire.

Currently, optometrists in 12 states can perform laser surgeries, according to the American Optometric Association: Alaska, Arkansas, Colorado, Indiana, Kentucky, Louisiana, Mississippi, Oklahoma, South Dakota, Virginia, Wisconsin, and Wyoming. 

These procedures include YAG (yttrium aluminum garnet) laser capsulotomy to remove clouded tissue on the back of the lens implant after cataract surgery; LPI (laser peripheral iridotomy) and SLT (selective laser trabeculoplasty) for treating some forms of glaucoma; and excision, removal, drainage, or injection of a variety of “lumps and bumps.”

The New Hampshire Medical Society opposes SB 440, saying it would jeopardize the health and safety of patients. Evidence from other states suggests otherwise.

Russell Laverty, OD, executive director of the Oklahoma Board of Examiners in Optometry, wrote to the Senate Executive Departments and Administration Committee that Oklahoma allowed optometrists to do laser eye surgeries starting in 1998. 

“Since 1998 there have been an additional estimated over 50,000 laser surgery procedures in which there were no complaints registered,” he wrote.

Since 2011, optometrists have performed more than 60,000 laser procedures in Kentucky, according to Joe E. Ellis, OD, president of the Kentucky Board of Optometric Examiners. The board hasn’t received any complaints or been notified of any adverse effects related to the surgeries, according to Dr. Ellis.

Dr. Nate Lighthizer, optometrist and associate dean at the Northeastern State University Oklahoma College of Optometry, testified in writing that more than 30,000 laser procedures in total have been performed by optometrists in Louisiana since 2014, Alaska since 2017, and Arkansas from 2021–22 combined. How many negative outcomes have been reported across all three states? Zero.

The reason for the shortage of complaints is simple. Optometrists are trained to perform minor laser and traditional surgeries. According to Laverty and Lighthizer, laser procedure is taught to every optometry student in every college of optometry in the United States, where students earn Doctor of Optometry (OD) degrees after roughly four years of graduate study. 

By keeping professionally licensed optometrists from doing what they were specially trained to do, Granite Staters’ access to necessary eye care has been severely limited, especially in rural New Hampshire. 

According to data from the American Optometric Association, the U.S. Census Bureau, and the American Medical Association, there are optometrists currently practicing in all 10 New Hampshire counties. In Coos and Sullivan counties, however, optometrists are the only local eye care providers for the 26,163 urban residents and 48,682 rural residents between these two jurisdictions. 

That means that residents of Coos and Sullivan counties have to travel to neighboring counties to find the nearest ophthalmologist to perform some surgeries that could be performed by a resident optometrist.

In Carroll County, which is 90% rural, there are 1.7 optometrists per 10,000 people but only 0.2 ophthalmologists per 10,000. 

Moreover, each of the four New Hampshire counties with more than 100,000 residents (Hillsborough, Merrimack, Rockingham, and Strafford) has at least one optometrist per 10,000 people, but not one has at least one ophthalmologist per 10,000. 

With few ophthalmologists statewide, wait times for these laser procedures, that only they can legally perform, are very long in New Hampshire. 

The average total wait time for YAG, LPI, SLT, and “lumps and bumps” operations, both for the consultation and the actual procedure combined, are 3.8 months, 3.6 months, 4.6 months, and 4.2 months, respectively, per the New Hampshire Optometric Association (NHOA). 

Anecdotes gathered by an NHOA survey of member-owned practices across the state lend credence to these statistics:

“Recently what was a 1–3 month wait for SLT (selective laser trabeculoplasty) has turned into a 10-month wait, a disturbing access problem for my patients.” – Conway Eye Care, North Conway

“As of January 1st this year Mt. Ascutney has 1 cataract surgeon who stopped taking new patients over 1.5 years ago. The one and only cataract surgeon in Montpelier booking 6 months out for the consult. ANY referral to DHMC ophthalmology (which is less than 10 minutes from our office) is a minimum of 4 months but usually longer. But DHMC stopped accepting new patients for ANY glaucoma related issues 2 months ago. The oculoplastics MD left DHMC, hasn’t been replaced yet so patients have to go to Concord or Burlington, VT. DHMC has not been accepting new patients in the retina clinic for ~ 2 years, they now have 1 retina specialist (intravitreal injections).” – Dr. Sheila Hastie, Lebanon

“Patients are frustrated when they cannot see properly to drive, waiting for a YAG procedure that takes 2–4 months to get into the surgeon’s office. I recently had a patient who waited over three months for evaluation and then an additional two months for both eyes to be treated.” – Dr. Chris Daldine and Dr. Pattie Samuel Daldine, Nashua

“We have referred to Dartmouth-Hitchcock for many different types of visits and they are not accepting referrals of any kind and asking us to send patients elsewhere. We have also sent referrals to Concord Eye Center, Medical Eye, and NH Eye and they will run redundant diagnostic tests/visits confirming that the patient needs the referral even though they have received all visit notes and testing data in the referral. This adds unnecessary financial burden on patients and insurance companies.” – Capital Vision Center, Concord 

These problems will only worsen as the supply of ophthalmologists continues to shrink, as it’s projected to do. As Edward Timmons, director of the Knee Center for the Study of Occupational Regulation at West Virginia University, cites, 450 ophthalmologists became eligible to start working in 2022, but 550 ophthalmologists retired that year—a net loss of 100 providers nationwide in 2022 alone.  

Research published in Ophthalmology, the journal of the American Academy of Ophthalmology, estimates “a sizeable shortage of ophthalmology supply relative to demand by the year 2035, with substantial geographic disparities.”

The monopoly that ophthalmologists in New Hampshire have over eye surgeries, including minor ones optometrists are trained to do, has led to limited access to eye care, longer wait times and delayed procedures for Granite Staters. 

When supply of a service is artificially limited, but demand remains constant or increases, costs for that service inevitably increase. 

In the face of these facts, the opposition to SB 440 looks less like concern for patient health, safety and well-being and more like ophthalmologists protecting their turf by limiting competition. 

Simply permitting optometrists to do what they were trained to do would be an obvious way to address many of these problems.



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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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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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