The State of New Hamphire has adopted a statute that goes into effect July 1st requiring cities and towns to consider the housing needs of the work force when planning for the future of their communities. You can read about the implementation of the statute here. You can also read the actual legislation here. To an extent this statute would codify past legal determinations that have been made regarding the purposes of planning in the state.
In the past, the New Hampshire Courts have struck down zoning by-laws that limited growth to levels below the region's average growth as being exclusionary. They have also struck down design requirements that raised the cost of construction. Finally, the courts also have made findings that particular lot sizes, which lead increased housing costs, were exclusionary if the town did not also have provisions to allow for smaller lots and more affordable housing.
If you read the first paragraph of the new RSA, you will find all the general terms that make for a good lawsuit. You also find generally a good directive to towns.
674:59 Workforce Housing Opportunities.
I. In every municipality that exercises the power to adopt land use ordinances and regulations, such ordinances and regulations shall provide reasonable and realistic opportunities for the development of workforce housing, including rental multi-family housing. In order to provide such opportunities, lot size and overall density requirements for workforce housing shall be reasonable. A municipality that adopts land use ordinances and regulations shall allow workforce housing to be located in a majority, but not necessarily all, of the land area that is zoned to permit residential uses within the municipality. Such a municipality shall have the discretion to determine what land areas are appropriate to meet this obligation. This obligation may be satisfied by the adoption of inclusionary zoning as defined in RSA 674:21, IV(a). This paragraph shall not be construed to require a municipality to allow for the development of multifamily housing in a majority of its land zoned to permit residential uses.
The idea of the statute is to encourage communities to think about their housing needs. To encourage affordable housing through-out the community. The problem will come with the interpretation of reasonable and realistic opportunities. For years the NH Courts have insisted that there be some connection between the carrying capacity of the land, and the actual densities. Communities with septic systems and wells, obviously required larger lot sizes than communities with sewers or centralized water distribution. It will be interesting to see how this statute actually plays out. For instance, if a coastal community such as New Castle were to make reasonable attempts to allow for work-force housing, will they still get credit? The coastal town has some of the best water views available in the entire state. It is also one of the most desirable addresses in the Seacoast. If the higher densities do not lead to affordable housing, due to market demand, will that mean the community was not reasonable?
Beyond the phraseology, the statute is much better than our own Chapter 40B. The third paragraph of the statute states:
III. A municipality’s existing housing stock shall be taken into consideration in determining its compliance with this section. If a municipality’s existing housing stock is sufficient to accommodate its fair share of the current and reasonably foreseeable regional need for such housing, the municipality shall be deemed to be in compliance with this subdivision and RSA 672:1, III-e.
Think about how many communities would meet the Chapter 40B standards if their existing housing stock were taken into consideration. There is really no reason why that should not be the case. Deed restrictions do not make a community affordable. A truly affordable community has housing readily available, regardless of the deed status, to working people.
The procedures that are laid out in the second RSA 674:60 are quite illuminating as well. It lays out a procedure for communities to follow in reviewing a project proposal. The local board reviews the proposal, establishes conditions for approval. After conditional approval, the applicant creates a pro-forma analysis of the financial implications of the conditions which the local board then reviews to determine whether any of the conditions should be reconsidered. The process, if it were to replace the current Chapter 40B process, would allow a project to be reviewed on its merits, determine what is really needed to off-set the impacts of the project. Only after the project has been reviewed on its merits, does the financial feasibility come into play. The financial discussion then takes place with its own independent set of give and take. The final decision is issued after the financial discussion is completed, unless the applicant feels that there is no need to debate the financial feasibility.
As the Lowell Sun article and this one fromthe Nashua Telegraph illustrates, communities are jumping on this legislation to adopt inclusionary zoning provisions, which appear to have been previously authorized (RSA 674:21), but without the stick that this statute reflects.
Having worked in both states, I continue to believe that the planning statutes in the "Live Free or Die" state continue to be better than those we find down here in the flatlands. RSA 674, even though it has been revised since I last worked in NH, is far more progressive than ours - the statute provides for a careful balance between community rights and land use rights. These housing requirements and allowances reinforce that communities must plan for their community needs, but leaves meeting those needs to local devices (albeit open to challenge in court) as opposed to having a statute, like Chapter 40B, which over-rides local concerns.
I have a couple of comments.
ReplyDeleteIf I read this correctly, it will require some municipalities, small towns such as Hollis and Amherst, to make areas available for opportunities for buidlings that must be multiple dwelling, 5 units or more, whereas cities like Nashua can use existing areas with apartments as credit toward their workforce housing.
My question is this: will this cause a situation where we see apartment buildings growing up in small towns more dispersed, auto oriented?
Ray
ReplyDeleteQuite likely. However, since the Lewis Builder's decision in the early 1980's every town in NH has had a responsibility to plan for its share of regional housing, and affordable housing. How they approach it is different in every community. In Newmarket where I lived and served on the Planning Board, we upzoned the center of townd where water, sewer and bus services were located and down-zoned more isolated areas. We had a "higher" level of need than many areas based upon the math as we had UNH next door in Durham and Pease Air Force Base with significant civilian population in the surrounding area. Our "area" for analysis purposes also included the cities of Portsmouth and Dover.
NH also has a land use change tax, if you keep a property open, you pay reduced property taxes. But, you pay a penalty to take it out of "current" use. We used that tax to protect large tracts as well in Newmarket.
Many towns up there have looked at the smaller lots as the solution. A mix of 2 acre lots and 5,000 sf lots. It was also easier to sell cluster zoning in NH than it is here to protect land.
Many of the plans I helped write while in NH went into great detail about the carrying capacity of the land to determine proper locations for density.
Apartments in small towns are not any more justifiable up there than down here under Chapter 40B. Most of the builders are simply pushing for more homes per acre. If you allow for that, then you are reasonable based upon how it all worked in the Seacoast back when we were addressing the fall out from the Lewis Builders cases. Newmarket even included zoning that protected its two mobile home parks from conversion to regular homes. That's probably 15 years ago now since I last lived up there.
Dan