Primer on affordable housing and zoning

What do SB 324, the Workforce Housing Act, mean to Rye?

Bill Veazey

The Situation
Between now and July of 2009, the town of Rye is going to have to look closely at its existing housing inventory, the potential for new affordable housing in town and its present Zoning Bylaws. This is not a matter of desire; it is required by law.

The purpose of this article is to help clarify the situation for voters who hopefully will be attending hearings, considering changes in zoning, contemplating why and what they mean, and then voting on the issue at a possible Special Town Meeting in June, 2009.

The reason for this entire process is that studies indicate that the State of New Hampshire lacks affordable housing. This situation is having an adverse effect on the state economically. It causes problems for employers, because potential employees cannot afford to live within a sensible distance of their workplace. It causes young workers to locate to other, more favorable states. It drives up wages. Employers move out of state. It puts additional strain on the infrastructures of roadways and services, thereby causing the state to increase taxes. And thus the vicious cycle goes on.

The Legislature has now taken a strong step in an effort to rectify the situation by passing into law SB 342 on June 30, 2008, to be effective on July 1, 2009. Martha Fuller Clark, primary sponser of SB 324, which amends the primary workforce housing law, RSA 674, said in her letter to Foster's Daily Democrat on August 8, "I believe that RSA 674 and the new amendment contained in SB 342 create a balance between a municipality's right and need to control and develop its land use and the critical need for affordable workforce housing."

”Workforce” has been defined by some as everyone in the state who works for a living. It does not include children under 16 nor retirees over 62. The workforce has been called the backbone of society. They are the ones who, through their efforts, allow all those who are not "workforce" to function normally.

The Declaration of Purpose for the bill is straightforward, and reads:

    “All citizens of the state benefit from a balanced supply of housing which is affordable to persons and families of low to moderate income. Establishment of housing which is decent, safe, sanitary and affordable to low and moderate income persons and families is in the best interests of each community and the state of New Hampshire, and serves a vital public need. Opportunity for development of such housing shall not be prohibited or unreasonably discouraged by use of municipal planning and zoning powers or by unreasonable interpretation of such powers.”

As a bill, it is brief and straightforward. It presents the purpose, definitions, the reasons for the bill, procedures and appeals, all within three pages. It will apply to every city and town in New Hampshire. You may read and print it out by clicking on this link:  Senate Bill 342: Workforce Housing.

In effect, the law directs towns to identify the affordable units presently available within the town. Next, they must address present zoning and take action on revising existing zoning laws so that they do not impede the possibility of constructing affordable housing, suitable for persons of normal means.

Background
Shortly after World War II, with the tremendous growth in population, the State of New Hampshire passed enabling legislation which allowed cities and towns to adopt “zoning regulations” which were intended to be: for the benefit of the Health, Safety and Welfare of its citizens, to provide for Clean Air and Water, and to reduce the conflicts of land usage within their community.

Adoption of that right to zone was taken on by individual towns at different times —  when they felt a need to create zoning bylaws. Rye first adopted a zoning ordinance in 1953. It was revised and replaced in 1969 and again in 1987. The complete ordinance, including amendments through March of 2008 can be seen here:  Rye Zoning Ordinance.

Through the years, with Planning Boards having various powers and direction of purpose, as guided by personalities and the citizenry of each town, patterns of housing have developed. Some towns opted for industrial development, others for apartments or condo style housing, and there were those that zoned with the intent to remain primarily rural. With a variety of this nature, the young adults of New Hampshire, or newcomers to the state, could opt for any one of them. And the population continued to grow.

Some towns expanded to the maximum, while others resisted all housing developments. A landmark case, Britton v. Town of Chester,134NH434,443 settled in 1991, effectively decided that a town cannot unduly prevent development. It said: "The zoning ordinance evolved as an innovative means to counter the problems of uncontrolled growth. It was never conceived to be a device to facilitate the use of governmental power to prevent access to a municipality by 'outsiders of any disadvantaged or social group' . . ."

In 2004, due to concerns about affordable housing, RSA 674 clarified the requirements of Britton v. Chester. However, little voluntary compliance resulted, and many towns did not change their zoning to be more inclusive. The Legislature’s SB 342 is the result of that inaction.

Actions Required
The first step is to evaluate the present inventory of housing in town relative to affordability based on median income in the region and to determine if the housing mix is “in compliance” with SB 342.  

Affordable as “workforce housing” in this scenario means a dwelling, owned or rented, which does not cost more than 30% of the regional median household gross annual income. The requirement is for 25% of housing units to be affordable.

In Rye the median income is $77,333/year which translates approximately into a $240,000 house with 10% down, a $260,000 house with 20% down, or a rental unit at about $2,000/month. Since there are about 2,400 dwelling units in Rye, about 600 affordable living units would be required.

Should present inventory meet the requirement, the town is in compliance. If it does not, further action is required which would be to review present ordinances in order to determine if they provide reasonable and realistic opportunities for the development of workforce housing, including  multi-family rentals. If they do not, an inclusionary housing ordinance may have to be adopted by the town, which would put Rye in compliance. Such an ordinance can designate specific areas and need not be town-wide,however it does have to apply overall to more than 50% of all residential-zoned areas.

RSA 674 is regional in nature, so possibly regional supply and demand of affordable housing could be looked at for compliance. Additionally, consideration of aspects which are beyond the town’s control, such as land values, might be a factor with respect to affordability in some areas of town.  

Legal Remedy
This new law, SB 342, has a “big stick” remedy in order to really get things moving. It requires towns to address the subject, allowing them one voting session to fix it; and if they don’t, effective July 1, 2009, they are subject to the remedies of the law.  

In simple terms, the big stick is called a “builder’s remedy”. Should a proposed project be turned down, a builder may claim that the town has unreasonably restricted the possibility of building affordable housing and ask the Court to allow him to proceed. If the Court finds in his favor, he may proceed without complying with the specific rules and regulations of the town. More than likely however, a mediation of a compromise would be reached.

Present
While the above sounds scary, it need not be. The Rye Selectmen and Planning Board are already deliberating about working with the Rockingham Planning Commission, who can provide guidance.

As of this writing, the Selectmen are still conducting a Public Hearing, which started on Oct. 6 regarding "acceptance and expenditure" of a $9,000 grant awarded through the Inclusionary Zoning Implementation Program (IZIP) of the NH Housing Finance Authority to hire a consultant to assist with the preparation of an inclusionary zoning ordinance.' No decision has been made to this date.

Each month, a news article will be covering the blow by blow actions of the boards and committees as they debate and deliberate the path to best follow with regard to RSA 674 and SB 342.

Conclusion
Glenn Greenwood, of the Rockingham Planning Commission, said during the Oct. 20 Public Hearing that he thought Rye was in better shape in terms of prior consideration of these matters than other towns, but after July 1, 2009, "the only way to tell if you are not in compliance is if a developer challenges."

Glenn Greenwood of RPC contributed background information for this article.
The author formerly served on the Rye Housing Committee, which brought forth the current RCD zoning amendment.

(Click here for the latest news on how Rye is grappling with the new law).

Go to Letters in December,2008