By GARRY RAYNO, Distant Dome

New Hampshire is a permissible state. What that means is cities and towns cannot do anything that the state doesn’t allow them to do, such as have their own rooms and meals tax or a surtax on room rentals.

But cities and towns have always craved out their own territory and in the past have essentially been left alone by the overarching powers of the state.

One of those areas has been zoning and land use planning, although the state stepped in about 30 years ago and established a shoreline protection zone around water bodies, which is understandable because the state owns water bodies over 10 acres as well as the rivers, streams and tidal waters.

These water bodies are held by the state as a trust for the people of New Hampshire.

But in the past few years the state has been reaching down into local communities and mandating certain land use or zoning activities — just as they have to public school curriculum — done largely in light of the housing crisis that has been building for years ignored by the state which refused to address until it was so overwhelming and harmful to the state economy and population growth.

That more housing is needed, and that it should be significantly more affordable than it is today, is not at issue, but how the legislature is addressing the crisis is in itself a crisis.

There is a rush to judgment going on here and in other places around the country like Massachusetts where the state is trying to determine how to punish Milton which voted against the MBTA Communities Law which requires municipalities served by the MBTA to create new zoning for multi-family housing near transit stations.

New Hampshire has not gone quite that far but would be pretty close if House Bill 1291 passes the House Thursday.

One of the ways the state has encouraged new housing is to mandate cities and towns allow auxiliary housing units to be attached to an existing home on lots of two acres or less.

The units are described as in-law apartments for family members or elderly or disabled, but can be rented as well, say to a single-parent household in a unit no more than 750 square feet currently.

The unit would not increase property taxes in any way that could support the local cost of sending a child to school for the community. That would be different if the state paid its fair share of the cost of public education, but compared to most other states it is well below average and near the bottom as it is for higher education support.

Additional costs to the community at large would be from sewer disposal and water usage, but not all communities provide those services.

All that would change significantly under the bill proposed by the Special Committee on Housing.

Under the bill up to two auxiliary building units could be located in a single-family zone with lots less than two acres and they can be attached or stand-alone buildings, with sizes not less than 1,000 square feet for one unit and 850 square feet for the other. The current threshold is 750 square feet.

The proposal also would allow three units in up to 50 percent of the single-family zone.

Supporters of the bill call it “a modest expansion of property owner rights” and “the lowest hanging fruit to address the housing crisis.”

In the blurb written in the House Calendar for Thursday’s session, Rep. Ellen Read, D-Newmarket, writes the proposed legislation “has been worked extensively on, and enthusiastically supported by developers, associations of realtors, NH Housing Finance Authority, town planners, housing advocates, unhoused crisis organizations, the disabled community, market-solution research groups, academia, landlords, and tenants, for over two years. It curtails some of the restrictions on building an accessory dwelling unit (ADU) that towns currently place on homeowners who are supposed to be allowed to build one ADU by right, and yet many homeowners have run into roadblocks on the municipal level.”
The list of supporters covers just about everyone but the neighbors.

Read notes the plan will help tenants by providing high-quality, low-cost units, and future homebuyers who will be able to add rental income to the equation when they seek to qualify for a mortgage.

And she says loosening the zoning requirements will add from 40,000 to 90,000 new units to address the 60,000-unit shortfall over the coming years.

“Unlike housing projects and low-income developments, ADUs are the decentralized, victory-garden approach to supply — the gentlest form of density, leaving rural character of towns intact as they are practically invisible,” Read writes. “We feel strongly that this bill is the right balance for property owner rights and people in need of housing, as well as New Hampshire character.”

But the work of the Special Committee on Housing was not unanimous.

Writing for the minority, Rep. Thomas Walsh, R-Hooksett, calls the proposed legislation “a mandatory major expansion of the accessory dwelling unit (ADU) statute.”
He notes the square-foot expansion limits, and that the units can be built on any lot over one-half acre.

“The minority believes it is important to look for solutions to the housing inventory, but this bill could potentially devastate the single-family neighborhood that our citizens enjoy,” Walsh writes. “Again, this is not enabling. This is a top-down, one size fits all zoning change mandated by the state. Local control should prevail in these matters.”
All the pressure to change zoning laws by the state has been driven by a report written by the architect of the Free State Movement, Jason Sorens, along with his minions. He wrote the report when he worked at Saint Anselm College, and it laid the blame for the state’s housing crisis on the doorstep of snub zoning.

The biggest problem is that housing is unaffordable in New Hampshire and there are many reasons for that including from buying houses for investment by converting them into short-term rentals to the great migration from the cities to rural areas during the COVID pandemic.

Zoning and its impact on the lack of new housing is but one reason along with the state’s antiquated tax structure that pushes over 70 percent of the cost of public education onto the state property taxpayers.

My town had a zoning change to allow two auxiliary units on the Town Meeting agenda, but it was turned down by a sizable margin.

One of the biggest reasons is the town’s water district is running out of water, which has already required the developers of two large, multi-unit developments to find their own water sources.

Other communities may not have that issue.

And that is the problem when the state decides a one-size-fits-all solution — as they did in Massachusetts — and imposes it on all communities.

Zoning ordinances are developed by each community through a long-term process, tailored to the city and town, and ought not to be overridden by the state to address a problem it helped create over many years.

It is interesting that those who scream the loudest about individual freedom and personal rights are so quick to take them away from others and do not see that as government overreach.

Garry Rayno may be reached at garry.rayno@yahoo.com.

Distant Dome by veteran journalist Garry Rayno explores a broader perspective on the State House and state happenings for InDepthNH.org. Over his three-decade career, Rayno covered the NH State House for the New Hampshire Union Leader and Foster’s Daily Democrat. During his career, his coverage spanned the news spectrum, from local planning, school and select boards, to national issues such as electric industry deregulation and Presidential primaries. Rayno lives with his wife Carolyn in New London.