‘Discriminatory’ land use policies are leaving more people out in the cold

By Ryan Lessard, Granite State News Collaborative/NH Business Review

Editor’s note: This article is another installment of “Invisible Walls,” an ongoing joint project of the Granite State News Collaborative, NH Business Review, Business NH Magazine and NH Public Radio that describes how exclusionary zoning laws have reinforced areas of persistent poverty, impacting many aspects of community life, including crime, public health, affordable housing and access to economic opportunity in Manchester. The team used Manchester as a case study, but the same sorts of exclusionary zoning practices present in Manchester are common across the state, and likely have had similarly broad effects.

Homelessness, like high blood pressure or family wealth, is often inherited by the next generation. That’s the sad reality Stacie Pickford Baez of Jaffrey found herself in as soon as she reached adulthood. To Baez, it seemed like everything in her youth made her destined to bounce from friend’s couch to friend’s couch for years.

She was starting at the bottom. What she didn’t know was that she was trying to climb a mountain that was getting taller. The housing market, made increasingly inaccessible by local zoning regulations, was leaving more like her in the outs.

Like Baez before her, her mother struggled with alcoholism and chronic homelessness. From the age of 13 to 18, she stayed in seven different group homes before being cast into the world in 2000.

“Upon leaving these placements, I was kinda left with no skills on how to take care of myself,” Baez said. “I didn’t know how to cook anything. I didn’t even know how to run a washing machine.” 

She said she briefly stayed with her mother, but the chaotic household was too much for her and she left. Baez said she stayed with friends until she found a cheap, $300-per-month apartment in Bellows Falls, Vt., and a jobs as an apple picker and a grocery store worker.

But it didn’t last long. She veered towards the “wrong crowd.” Young, inexperienced with managing money and spending too much of her time partying with friends, things spiraled out of control.

“From there, that led straight to addiction. It was like a fast track from partying to addiction,” Baez said. “Addiction pretty much led the way into chronic homelessness after that. I moved around a lot, I went to jail.”

She said she was able to start her recovery in 2008 after her first child was born, but found housing she could afford difficult to find. 

Multiple reinforcing factors

Homelessness experts say Baez’s is not a unique case. In fact, homelessness in the Granite State is rising. 

Annual point-in-time counts of unsheltered homeless people conducted on a single day in January 2020 showed a 21 percent increase, to 1,675, compared to 1,382 in 2019, according to the NH Coalition to End Homelessness. (2021 data are fuzzy since the U.S. Department of Housing and Urban Development waived the count requirements during the pandemic).

Stephanie Savard, director of the NH Coalition to End Homelessness, said one of the most significant contributing factors to homelessness is a lack of housing, and housing advocates say communities across the state are turning developers away or laying a minefield of legal obstacles along their path.

Savard said zoning rules, including. minimum lot sizes and restrictions on multi-family buildings, are causing a shortage of new housing – housing that’s sorely needed.

“These issues increase the challenges to finding housing for people living in poverty and those at risk of losing their housing,” Savard said. “This has an impact on the numbers of people and families who experience homelessness as they struggle to locate or maintain affordable housing.”

Many who end up unhoused are often dealing with other issues, like domestic violence, health issues or substance use disorder, Savard said. But while those challenges plague rich and poor alike, it’s the people who have less money who are most at risk of becoming homeless.

“These same challenges that do not discriminate based on income level are often more manageable for those living with a decent income as they have access to resources and support systems to address, and often overcome, these obstacles.” Savard said.

Elissa Margolin, director of Housing Action NH, said the causes of homelessness are complex, with multiple reinforcing factors that play off each other and coalesce to form the conditions necessary for individuals to find themselves without a roof over their head.

But a “hostile” housing market is a universal condition for everyone living in New Hampshire, she said.

About 28 percent of residents are renting and about half of them are paying up to 50 percent of their monthly income on housing needs, according to Margolin.

And all it takes is for a period of personal tribulation and a lack of a safety net for people to get squeezed out of the tightening housing market and fall through the cracks.

“Imagine that you are a single mom with a couple of kids, imagine you’re trying to get back on your feet again after domestic violence, or imagine that you’re coming out of incarceration, or… in recovery,” Margolin said. “You can see how that market can actually lead to an increase in homelessness.”

New Hampshire has a 0.6 percent rental housing vacancy rate, which means there’s virtually no room available. And once people fall through those cracks, Margolin said it becomes almost impossible to get housing again.

She said landlords are declining tenants who want to pay in part with housing choice vouchers, also known as Section 8 vouchers, even after waiting for years to obtain one. With so few housing options available, competition among tenants is fierce and landlords have the luxury of being choosy.

Savard said cultural stigmas and assumptions about how people became homeless exacerbate the problem.

“The assumption that someone might be lazy or unmotivated could not be further from the reality of a person, with limited means and resources, spiraling into homelessness,” Savard said. “When someone is experiencing poverty, oftentimes generational poverty, it is a completely different experience to manage these same challenges with limited resources, minimal supports, and a society fraught with stigma for what they are experiencing.”

At one point, Baez and her husband, Jose Baez, bought a house in Fitzwilliam in 2012. But after Jose was arrested and sentenced to prison in 2015 (due to what she described as a parole violation by being in someone else’s car which had a concealed firearm), she was on her own for two years and lost the house. During this time, she also lost her two brothers, who were both homeless, to suicide, and her mother to pancreatic cancer.

The only place she could find to stay in at the time was a cabin in Swanzey that was $1,500 per month, which town housing assistance covered most of. Baez was on fixed Social Security income of $700 a month at the time, paying $500 of that towards rent, she said.

“I was feeling very hopeless again. That was hard,” Baez said.

When Jose got out of prison in 2017, the two stayed at a shelter in Jaffrey for about eight months. They scrounged and saved, and by 2019 they bought a three-family home with a Federal Housing Authority loan.

Now Baez is a landlord herself, renting out two units in a three-unit building she lives in with her husband and three kids. With this new perspective on the other side of the housing market, she’s starting to realize the sticky spider’s web of homelessness she finally escaped was partly sewn by local officials who made it nigh impossible to build new housing units.

Worsening supply needs

The essential problem with the state’s housing market is high demand and low supply. It’s been like that for decades. And when the Covid-19 pandemic caused demand to accelerate, did the market respond with more supply? 

“No,” says former NHY Housing Finance Authority Director Dean Christon.

“There has been a continued tightening of the market over the last several years, even before the pandemic,” Christon said. “The demand went up, and the supply side just didn’t move in any substantial way. … The supply-demand balance has gotten kind of worse.”

While the state population rose by 4.6 percent in the past 10 years, new housing units increased only 3.9 percent between 2010 and 2020.

So how did things get this bad? Housing advocates, experts on homelessness, homebuilders and NHHFA officials all agree: We did this to ourselves, with overly restrictive zoning regulations.

“The market isn’t failing here, it’s the regulations that’s preventing the market from solving the problem,” said Drew Cline, president of the Josiah Bartlett Center for Public Policy, a free-market think tank.

Specifically, “antigrowth” land use regulations that set limits on developers by requiring large minimum lot sizes, long frontages and setback, single-family-only uses, minimum parking spots, building heights and apartment densities, among other things, are creating an artificial scarcity of land upon which to build, according to a Bartlett Center report published in October.

“People often become unhoused when they cannot find housing they can afford — a problem exacerbated by zoning policies making it harder to build housing in the first place,” said housing advocate and Cornell University professor Sara Bronin. “Large minimum lot size requirements, number-of-unit caps, and parking mandates are just three examples of zoning policies that constrain housing construction.”

She said a study in Connecticut found that over 80 percent of land zoned for residential use requires one acre per home. Nearly 50 percent requires two acres. Cline said that to his knowledge no such study exists of New Hampshire, but many communities do have minimum lot size requirements and other barriers.

“It turns out that New Hampshire has some of the worst-offending municipal governments in the United States, and the growth of red tape in housing development in this state helps to explain our slow growth since the 1990s, our aging population, growing income segregation between our towns, and escalating home prices in many of our communities,” according to the Bartlett Center report.

Using the Wharton Residential Land Use Regulation Index, New Hampshire was the fourth most regulated state in the country a decade ago. The Bartlett report also notes that, by another metric, which counts the number of appellate court decisions containing the phrase “land use” against state population, New Hampshire ranks as the fifth most regulated state as of 2017.

“You can have a lot of resources available, and even willing developers, but you’ve got to have a place to put the project,” Christon said.

The Pembroke example

What do the zoning barriers look like? Sometimes it’s baked into a community’s ordinances and the way it draws up its zoning maps, but it plays out mostly in monotonous meetings with a handful of elected town officials sitting behind tables. 

The individuals serving on your local zoning boards of adjustment or planning boards wield tremendous power in their ability to deny proposed projects from being built, often with the support of what developers would call unfeasible rules and a chorus of motivated residents expressing that time-honored sentiment: “not in my backyard.”

Last November, the Pembroke Zoning Board of Adjustment denied with a 4-1 vote a variance request for a proposed senior housing project that called for about 100 units in three buildings near Beacon Hill.

Abutters who spoke at the Nov. 22 meeting expressed concerns that it would affect their home property values and said the larger apartment buildings would be mismatched against their spaced out single family homes in the largely wooded area.

“I mean just picture three giant apartment buildings in that forest at the end of Beacon Hill. It just doesn’t fit the mold,” said resident Stacy Kallelis. “Square peg, round hole.”

Attorney Bob Best, who represented developer Bill Evans for the project, said he had requested two variances – one to allow for more than six units per building (that’s the current ordinance limit) and another to reduce the required frontage from 1,100 feet to about 500 feet.

ZBA Chair Bruce Kudrick said the board voted against the first variance because it would alter “the essential character of the neighborhood” and be contrary to the “public interest and the spirit of the ordinance.”

According to Best, “it’s a great example of … the cumbersome process. We’re six months into this.”

And that’s just the variance application. In Nov. 7, 2019, Best petitioned the town to reclassify the road that would connect to the property to Class 5, so that it becomes a town-maintained road again, a prerequisite for a building permit.

Apparently, Best said the town quietly changed the road classification to Class 6 in 1990, a few years after developer Evans bought the 45-acre property. 

“It is a little unusual for towns to declassify roads from 5 to 6 without some reason to do so,” Best said.

In January 2021, the town denied this request. Best appealed to the newly formed state Housing Appeals Board, which remanded the matter back to Pembroke selectmen, arguing they improperly took resident concerns about future development into account.

In August, the selectmen reversed their earlier decision and opened up the road. 

Best has obtained a rehearing scheduled for March 28. He intends to argue that the zoning rules allow for other types of large buildings, such as agricultural uses or a library, for example, and that the residences his client is proposing are more aligned with the residential character of the area than those other allowed uses.

He is also asking for the ZBA to vote on the second variance request, which was overlooked in the last meeting. 

Just to get an idea of how easily this process can become a labyrinth of arcane bureaucracy, Best explained that he wants to make sure a vote is on the record for the second variance because if he wins an appeal for the first but loses on the second, he’ll have to start the appeal process all over again.

But even if Best wins his appeals and gets the variances he’s asking for, his client has already missed the 2022 construction season since they’d still have to go through the planning board process. 

A systemic problem

Best’s experiences are not uncommon in New Hampshire. Developer Steve Lewis has a lot of experience building high-density housing projects and so-called workforce housing developments with income and age restrictions.

“I’ve been doing this for 42 years, and I have never had an affordable housing project that met any of the hysteria,” Lewis said.

Even when he brings a proposal to a community with less burdensome regulations and friendly land use boards open to such projects, Lewis said he always sees a group of vocal residents expressing opposition. Usually, they base their opposition on fears that his buildings would bring crime, traffic and other tax burdens to the town, according to Lewis. This happened recently when he was getting town approvals for the latest phase of his middle-income multifamily condo development in Salem known as Bryant Woods.

One resident stands out in his memory.

A man took the podium during a Salem Planning Board meeting and said, “We don’t want those kind of people living in our neighborhood,” Lewis recalled.

The irony, which was apparently lost on the resident, was that he was living in an upscale condo that was already right next to an earlier workforce development project Lewis built. Lewis said the man didn’t even know that building contained “affordable” housing units.

In the end, Lewis said the town approved the project.

“It was only a few abutters in their luxury condos thinking ‘those kind of people’ are going to be living in their neighborhoods. It’s a sad kind of prejudice,” Lewis said.

Lewis said he’s encountered several New Hampshire communities with a burdensome system for housing developers. Towns like Windham, Bedford and Amherst, he said, have been some of the least welcoming to multi-family and affordable housing projects in his experience.

About 25 years ago, Lewis said he won a lawsuit against the town of Atkinson, where he lives, which attempted to block a housing project he was proposing. He won the suit, which he said proved the officials were discriminating against low- and middle-income people.

Much of the regulation and cool attitudes among officials serve to deter projects from even being proposed, Lewis said. For many, pushing through those restrictions could mean going to court, spending hundreds of thousands of dollars and still potentially losing.

The problem is systemic, according to the Bartlett report.

The report’s author, Jason Sorens, devised his own formula for measuring what he terms a “land use tax,” a percentage of home price increase that he links to zoning regulations. The higher the “tax,” which exceeds the would-be market rate prices, the more burdensome the regulations. Using this method, he ranks the various communities within the state. 

Near the top of the list are the wealthier suburbs of Manchester and Nashua, such as Hollis, Bedford and Windham, Seacoast communities like Portsmouth, New Castle and Rye, as well as Hanover and some of its surrounding towns.

Zoning was generally invented to separate where we live from industrial zones and high-traffic areas. Sorens said the motivation behind many of these zoning regulations on new housing is “rent-seeking.” In other words, the homeowners in the communities with the most housing demand appear to be using zoning to boost their wealth by artificially limiting the supply.

As Lewis said, “They’re interested in making lots so expensive that only well-off people can live there. That’s their intent.”

To Cline and Sorens, the rules amount to effective discrimination.

“If you were to use the term ‘discrimination’ more broadly, and remove the racial connotation, they are by design discriminatory,” Cline said.

Sorens said while the desire to inflate home property values seems clear, some officials may indeed be motivated by prejudice as well.

“I certainly don’t want to rule out classist or even racist motivations,” Sorens said.

When you look at how communities have exercised their powers over how their land can be used, it’s not hard to see how things got to be the way they are, Cline said

“Planning and zoning boards are created to create an ideal community in the abstract,” Cline said. But with little guidance from the state or certain rights enshrined for builders and property owners, Cline said communities have become fixated on the minute details of a proposal and impose the vision of a few over the aggregate demands of the market.

“It is class warfare to a certain degree, but it’s also being used to preserve certain landed gentry property value,” Lewis said. “And I don’t know which is worse.” 

Bronin said she believes the solution is to work within zoning and to shape state laws that create more housing opportunities and cut down the abuses of land use regulations.

“To help more people obtain housing, we have to build more of it, faster,” Bronin said. “That means loosening outdated restrictions, particularly in walkable communities where residents can easily connect with shops, offices, and services.”

One way to do this might be to define what the essential “character” of a community means – that pesky phrase that land use boards like the one in Pembroke wield broadly to say a project doesn’t belong here.

According to the organization Desegregate Connecticut, the term “character” is often “an avenue for discrimination against newcomers.” That’s why the advocacy group championed a bill that was signed into law last year which, among other things, defines character only as physical site characteristics and not people, their income sources or levels. The law also mandates municipalities accept accessory dwelling units as a “right” and limits parking space requirements. 

Baez said she and her husband looked into building additions to their building to create more housing units on their property, but local setback regulations stopped them in their tracks.

She said she knows what it’s like to be left out of the housing market. Now that she’s a landlord, she wants to do what she can to make it easier for people who need a home.

“I’m trying to be part of the solution,” Baez said.

These articles are being shared by partners in The Granite State News Collaborative as part of our race and equity project. For more information visit collaborativenh.org.