No Town Is an Island: How a landmark Supreme Court case affected housing policies all over N.H.

An excerpt from “Snob Zones: Fear, Prejudice and Real Estate,” by former NHBR staff writer Lisa Prevost, which explores how zoning and other land-use regulations have been used to promote economic and racial exclusivity in communities around the country


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The recently released book, “Snob Zones: Fear, Prejudice and Real Estate,” by former NHBR staff writer Lisa Prevost, explores how zoning and other land-use regulations have been used to promote economic and racial exclusivity in communities around the country. In this excerpt, Prevost discusses the genesis of a landmark New Hampshire Supreme Court decision and how it has affected housing policies in the Granite State.

 

Nestled between the White Mountains and the Maine border, in the eastern middle of the state, Ossipee is a sprawling, sparsely developed, and fiercely independent town wrapped around three villages. Local is so local here that each of the villages -- Center Ossipee, West Ossipee and Ossipee Corner (home of the Carroll County courthouse, jail and nursing home) -- maintains its own fire district with its own tax rate.

A drive around town offers a glimpse of the indigenous resistance to change: miles and miles of roadway remains unpaved.

“When new people come to town, I welcome them, but with a caveat,” says Harry Merrow, the chairman of the board of selectmen and a state representative. “I tell them, if you want lights and sidewalks and other things you had where you came from, you might as well go home now.”

Even zoning was considered unnecessary until the 1980s. Then, in the thick of a population boom, the people of Ossipee decided it was time to put up some gates. Bejeweled with lakes and ponds, and rimmed by the magnificent Ossipee Mountain range, their town had attracted summer people since the late 1800s.

Private cottages, sleep away camps, and family campgrounds had gradually claimed the shores of Ossipee Lake and the Bearcamp River. But Ossipee hadn’t seen anything like the flood of retirees, Massachusetts refugees, and second-home owners that came rushing in between 1970 and 1990. The town’s population doubled during that period, to 3,300. (The population has since crept up to 4,300.)

The region’s premier vacation area lay just to the west: Lake Winnipesaukee boasts roughly 70 square miles of water surrounded by marinas, resorts, and trophy homes. Ossipee Lake, no puddle itself at more than 3,000 acres, offered a less expensive alternative in a low-key town where social outings tended toward church suppers, weekend sap boils, and snowmobiling.

With development taking up just 7 percent of Ossipee’s 71 square miles, newcomers to town could still imagine they’d stumbled onto undiscovered territory. They could convince themselves that life in Ossipee would be simpler, that whatever complications they’d left behind would not follow them here.

It was 2001 when an affordable-housing developer appeared on their doorstep. Bill Caselden was a partner in Great Bridge Properties, a three-year-old venture based in Manchester. Great Bridge was unusual in that it was one of the few for-profit entities that focused solely on affordable housing.

Caselden, a certified public accountant, had mastered the intricacies of tax-credit financing and deal structuring while working for the Reznick Group, a national accounting firm. His partner, Chris Davies, was a sticks-and-bricks expert. For a couple of guys wanting to start a business without a lot of money, partnering in a niche that relies more on competence than capital seemed a logical move.

The pair hadn’t come upon Ossipee haphazardly. When scouting potential development sites, they followed a stiff set of criteria, most of which were intended to minimize the usual objections to high-density development.

They also needed a property seller willing to keep their purchase option open long enough for them to get through the lengthy approvals and financing process. And, of course, their projects only made sense in areas with a demonstrable need for below-market-rate housing.

Given all of these conditions, when property offerings came their way, nine times out of 10, Caselden and Davies passed. But in Ossipee, they came across that rare exception. An open field of roughly nine acres in the village district of Center Ossipee, the site looked just about perfect.

Most significantly, the village district was one of the few areas in town served by municipal water and sewer, a big plus for a dense project. Also, the property sat at the intersection of two main roads (routes 25 and 16B) and directly off an exit of Route 16, a major artery that runs from the Seacoast to the Lakes Region and on up through the White Mountains.

The only potential obstacle to what otherwise looked like a winning plan was some puzzling wording in Ossipee’s zoning ordinance

The property had other advantages: It was not in an historic district. It was not close to wetlands, the presence of which adds an extra round of regulatory hoops. And it did not abut a high-end neighborhood, thereby sparing Great Bridge the wrath of deep-pocketed homeowners and their lawyers.

As for market demand, Caselden had no doubts. When he surveyed Ossipee and the surrounding environs of Carroll County, he saw an area starved for decent, affordable rentals. The pressures of population growth had caused home prices and rents in the area to soar in the 1990s.

Between 1999 and 2001 alone, the rent and utilities for a two-bedroom apartment in Carroll County increased by 17 percent, continuing a long, upward trend that would likely continue, given that vacancies were stuck well below the “normal” level of 5 percent. Local wages had not kept up with the rent increases, as job growth in the tourism-driven economy had largely been confined to the low-wage realms of retail and restaurants.

Ossipee did have a healthy quotient of well-to-do summer residents, but the town as a whole was hardly living large. The median household income was about $45,000; some 18 percent of families lived below the poverty level. It was not uncommon for those among the working poor who couldn’t make rent year-round to spend the warmer months living in tents.

Also pointing to an affordability problem was the state’s waiting list for Section 8 vouchers, the federal program that provides rent subsidies for very low-income households. The list for Carroll County ran to more than two hundred names, more than a quarter of which were people from Ossipee.

This was not to say that Ossipee needed a high-rise. The Great Bridge partners were thinking more along the lines of twenty-four apartments. They envisioned six colonial-style buildings, with a mix of one-, two- and three-bedroom apartments.

This was a more expensive layout than, say, two buildings of 12, because it required more walkways and building mechanicals. But Ossipee’s zoning regulations set a maximum of four units in multifamily dwellings, and Caselden and Davies preferred to play by the rules. As a sweetener, they would cluster the buildings fairly close so that they could leave almost six acres untouched as open space.

The only potential obstacle to what otherwise looked like a winning plan was some puzzling wording in Ossipee’s zoning ordinance.

Multifamily housing was plainly identified as a permitted use in the village district -- that wasn’t the issue. The problem was that the ordinance seemed to require multifamily units to be in an existing building. Caselden read through the ordinance repeatedly to see if he’d missed something, but it still made no sense. Did the town really mean that new construction of multifamily housing was not allowed? He put the question to Ossipee’s building inspector.

“His response was, ‘No, that’s not what they mean. That’s crazy. Go to the zoning board and they’ll give you a variance,’” Caselden recalls. “I mean, you read it and you thought it was a mistake.”

The Chester experience

It was no mistake when the town of Chester, about 60 miles to the south, excluded multifamily housing from all five of its zoning districts. A bedroom community of Manchester, Chester (current pop. 5,000) had vigilantly preserved its colonial past.

The town center was frozen in time, its cemetery the resting place for veterans of the Revolutionary War. Commerce and industry had passed Chester by, and townspeople had focused on perfecting a rural image -- even if, by the 1980s, fewer than 5 percent of them actually made a living from the land.

This primarily meant maintaining low density. Prior to the 1980s, in fact, multifamily housing was deemed so out of character for Chester that it wasn’t allowed. Single-family homes were to occupy at least two acres; a duplex required three. Over time, this left few housing choices in Chester for people in lower-income brackets.

This was perhaps why George Edwards, a woodcutter at a local factory, found himself living in his parents’ backyard in the early 1980s. Edwards, then in his 30s, had grown up in Chester and wanted to stay. But on his annual salary of $14,000, he couldn’t afford to live anywhere but in a trailer without running water. He shared the one-bedroom trailer with his wife and three children. When someone in the family needed to use a bathroom, they had to cross the yard to Edwards’s parents’ house.

In 1985, Edwards joined with some other low-income families and a local builder in a lawsuit aimed at forcing Chester to lift its ban on apartments. The builder, Raymond Remillard, had been trying unsuccessfully for years to obtain approvals for a 48-unit apartment project on a 23-acre property he owned along a major roadway. His plan included at least 10 apartments for low- to moderate-income tenants. The lawsuit argued that by keeping out apartments, Chester was unfairly keeping out people in lower wage brackets.

Within a year of being sued, Chester reconsidered its position and revised its ordinance in a way that appeared more friendly to multifamily housing. But upon close examination, the revision proved little more than window dressing: the areas where multifamily housing was allowed and feasible still amounted to less than 2 percent of the land in town.

Remillard and the others continued to press their case. After the superior court ruled that Chester’s ordinance was invalid, the town appealed. The state supreme court took up the matter.

At the heart of the standoff were these questions: Were towns obligated to consider regional needs when using their state-given zoning authority to control growth? Could Chester legally zone out the poor and leave the responsibility for housing people of lower incomes to other towns?

In formulating its opinion, the state supreme court looked to wording in the state law that grants towns the power to set zoning regulations. Using language common to many states, the New Hampshire law sets fairly specific parameters around zoning authority. Zoning regulations, it says, must serve “the purpose of promoting the health, safety, or the general welfare of the community” (emphasis added). Chester read that charge through localized lenses that looked only as far as town borders. The town’s zoning regulations were written to “maintain the rural nature of our town,” Selectman John Nucci would later say.

Elliott Berry, lead counsel for the plaintiffs and a seasoned lawyer with New Hampshire Legal Assistance, took a longer view. His position, then and now, is that wholesale prohibitions on multifamily housing only promote the welfare of a select population -- those able to afford a house on a few acres—and are deleterious to those of lower income levels. “Every time a town in a suburban area pulls up the drawbridge, it creates a greater temptation for other towns to follow,” Berry says. “Each suburban community closes another door.”

In 1991, the state supreme court came down on the side of the all-inclusive community. In a decision known as Britton v. Chester, which drew national attention, the court struck down Chester’s multifamily housing ordinance as “blatantly exclusionary.”

More significantly, the court clarified that the statute’s reference to “community” should be interpreted to mean the broader community, of which a single town is only a part. Taking as its cue a seminal ruling in an exclusionary zoning challenge in New Jersey known as the Mt. Laurel case, the New Hampshire court found that all municipalities had an obligation to provide a realistic opportunity for people of lower incomes to obtain affordable housing.

Housing advocates and many planners around the country hailed the Chester ruling as a blow to exclusionary zoning far and wide. A former president of the American Planning Association called it “the most important land-use decision in the last 10 years.”

A lawyer for the New Hampshire Municipal Association advised towns throughout the state to revisit their zoning ordinances to ensure that they provided more than “illusory opportunities” for apartment construction. Fairness, it seemed, would now have to be part of the local zoning lexicon.

And then … almost nothing changed. New Hampshire towns continued to embrace ordinances that made it difficult, if not impossible, to build multifamily housing. Who was there to stop them? If Britton v. Chester provided the grounds for challenging exclusionary policies, developers proved uninterested in spending time and money in court. The Chester case had taken so long that, even though the decision ordered the town to allow Remillard to build his housing project, the real estate crash of the early 1990s prevented him from obtaining financing. The easier way for developers to win over towns was to play a different version of the same exclusionary game. They learned to target denser projects at people aged 55 and up, which towns viewed as a boon because they didn’t allow school-age children.

Genesis of a lawsuit

The scene in Ossipee Town Hall was Caselden’s worst nightmare: a zoning board of adjustment hearing attended by nearly a hundred people, all of whom were waiting for him.

It was December 2002, and Caselden had come to ask the board for the variances Great Bridge needed to get around the odd restriction of apartments to existing buildings.

Great Bridge’s lawyer, Ken Viscarello, opened the discussion by observing that Ossipee’s brand of prohibition on multifamily housing was so unusual that, in 16 years as a real estate lawyer in New Hampshire, he’d never seen one like it.

He pointed out that the Great Bridge proposal was actually a less intensive use of the nine-acre property than zoning allowed. Under his interpretation of the regulations, they could have divided the land into almost 30 lots and put a house on every one. Instead, they planned to preserve six acres as green space.

The Great Bridge team was stunned. They were used to opposition, but people here weren’t even trying to hide their prejudices. They didn’t want multifamily housing. They assumed lower-income people from out of town were nothing but trouble and their kids laden with behavioral problems and learning disabilities.

Someone asked if this project was subsidized housing. Caselden knew what was in people’s heads -- they heard the word “subsidized” or “affordable” and immediately envisioned the crime-ridden public housing projects built to warehouse the urban poor in the 1960s and ’70s. He tried to explain that his proposal would in no way bear resemblance to the misguided projects of the past. For one thing, this was not government-run housing; Great Bridge would own the development and see to its upkeep. Rents would be lower than the market rate, but people would be required to show an ability to pay before they could live there. Residents would also have to pass a criminal-background check. And, as a for-profit entity, Great Bridge would not be exempt from paying property taxes.

Caselden had barely finished his explanation when another Ossipee resident predicted that the development would be packed with as many as 24 kids, many of whom would likely be hanging around looking for trouble. Someone else said that, based on the total number of bedrooms, the number of kids would likely be closer to 40. A mother chimed in with a prediction that these kids, because they came from lower-income homes, were also going to require costly special-needs help in the town schools.

A representative from the largest social-service agency in the area, Tri-County Community Action Program, spoke up to remind people that plenty of Ossipee residents would qualify for this housing. The audience was unaffected.

Another resident, Jon Brown, said he had “moved up from Massachusetts to get away from this type of stuff.” Jean Simpson, a homeowner who lived on an eight-acre property abutting the development site, echoed Brown’s opinion: “I don’t want this -- it’s why I moved here.” Before she’d moved to the village, Simpson explained, she’d called town hall to ask about the zoning. “It seemed to be very strict, it seemed to be very well thought out,” she said, “and it was a place that I wanted to be because we didn’t allow for these types of things. I didn’t think this was going to be an issue.”

The Great Bridge team was stunned. They were used to opposition, but people here weren’t even trying to hide their prejudices. They didn’t want multifamily housing. They assumed lower-income people from out of town were nothing but trouble and their kids laden with behavioral problems and learning disabilities.

Ossipee’s unusual restriction on multifamily housing was clearly not a mistake.

When the public hearing resumed a week later, the zoning chairman, Mark McConkey, a local businessman, left no doubts on that point. By way of explaining his vote against the developer’s application (which would finally be denied), McConkey pondered the ordinance’s intent aloud. “It is my thought,” he said, “that when this ordinance was written it was known at that time that this was exclusionary. It was written exactly for that reason.”

He went on, “I believe the spirit of this ordinance was to deny the opportunity for multifamily housing to go forward in this town. I believe that’s the intent of the ordinance whether it is right or wrong.”

McConkey’s startling admission was as good as a gift, from Viscarello’s perspective. First thing the next morning, he dispatched a paralegal to Ossipee. He wanted a copy of the hearing tapes before anything could happen to them. Two months later, after failed attempts to get the board to reconsider its denial, Great Bridge sued the town in superior court.

Great Bridge v. Ossipee

When Great Bridge v. Ossipee came before the state superior court, the judge didn’t have to look much further than Britton v. Chester to conclude that Ossipee had overstepped its zoning authority.

In a February 2005 ruling that cited Mark McConkey’s bold statements about the town’s exclusionary intent, the court ruled that Ossipee’s zoning ordinance did not promote the general welfare of the community. And in this case, community was defined as the breadth of Carroll County, a conclusion reached by the court through an analysis of commuter patterns.

“By making it economically infeasible for low-income households to live in the town, and by enacting zoning ordinances that preclude the development of affordable housing, the town has created a moat to keep out low-income households from both the county and other regions,” the court concluded. “Such a scheme is clearly illegal.”

This was the first (and only) time Great Bridge had taken a town to court; Caselden preferred to avoid costly litigation. But in this instance, the owner of the development site was willing to wait it out with them, and Viscarello had persuaded them that they had a winning case. Costs associated with the court challenge meant Great Bridge had to spend another $4,700 per unit, a budgetary strain, but one they could bear. “It was senseless to add that much money to this project,” Viscarello says, “but we felt that’s what we had to do.”

The resulting complex, called Ossipee Village, opened in July 2006. Since then, virtually none of the project opponents’ worst imaginings have come true.

At last check in 2011, 14 school-age children -- not 40 -- lived in the 24-unit development. And not all residents were new to Ossipee -- some had previously lived elsewhere in town. Selectman Harry Merrow -- who opposed the development -- confirms that it has not resulted in a spike in welfare applications. Nor is it a magnet for crime.

Tenants are a mix of newcomers and existing residents. Ossipee Village was a step up for Richard Woodworth, 40, who lived down the road at another apartment house before moving about five years ago. Then working at a health-care job that paid $9.25 an hour, Woodworth could afford his previous apartment, but, he said, “the upkeep there was, to be nice, horrendous. The management did have a guy come in and fix my windows one day while I was gone. My neighbor saw him sitting down watching TV in my apartment.”

Jerry Carr, another tenant, was desperate for a place he could afford when he found out about Ossipee Village while searching the Internet. Then in his early 70s, Carr had been living in Gilmanton in a house owned by a relative, after what he describes as a long downward spiral in which his wife died of a sudden illness, the Massachusetts trucking company he worked for shut down, and he lost his house. In 2008, when the relative also ran into financial trouble, Carr was given just a few weeks to find another place to live. His pension and Social Security added up to an annual income of roughly $23,000, which did not give him a lot of options.

“I had no idea where I was going to go,” Carr says. “This place saved my life.”

In 2008, after New Hampshire’s workforce housing shortage had grown severe enough to worry the state’s business lobby, and after years of study and debate, lawmakers finally wrote Britton v. Chester into law. Their workforce-housing law echoes Britton with a requirement that all municipalities provide “reasonable and realistic opportunities” for workforce housing and that they allow it within a majority of the land area zoned for residential use.

They are not mandated to work toward a proscribed number of housing units. New Hampshire political realities demanded that the law adhere to the hallowed tradition of local control.

“It is not our intent to create workforce housing everywhere,” says George Reagan, program administrator at the New Hampshire Housing Finance Authority. “This approach creates an opportunity, then leaves it up to the market. If there’s not growth and price pressure, then it wouldn’t necessarily be built.”

Individual communities may comply in any way they wish, which may mean not complying at all. Under the new law, however, recalcitrant towns run a higher risk of being challenged in court. The law sets up an expedited process for appeals of thwarted housing projects; a hearing must be held within six months. It’s too soon to say whether this approach will stimulate more housing development -- or whether it will even survive.

Many lawmakers still view it as an intrusive mandate; Britton be damned, they have twice tried to amend the housing law to add an opt-out provision and, in direct defiance of the decision, officially define community as “the area within the boundaries of any municipality.” Pressure from the business community has kept the law intact so far. As of mid-2011, 45 towns out of 234 had adopted some sort of workforce housing ordinance.

Even all these years after Britton, Elliot Berry remains optimistic. With demographic threats looming, he sees more people beginning to take the responsibilities articulated in both the Chester and Ossipee decisions seriously.

“It’s frustratingly slow, but it’s happening,” Berry says. “What’s sad to me,” he adds, “is I think New Hampshire municipalities originally had that economic diversity. The suburbanization of much of New Hampshire destroyed that, and it’s going to take a long time to get that back.”

Excerpted from “Snob Zones: Fear, Prejudice, and Real Estate” by Lisa Prevost. Copyright 2013. Excerpted with permission by Beacon Press.

Lisa Prevost, a former staff writer with NHBR, has written extensively about real estate for The New York Times and other publications. She also blogs about affordable housing and zoning issues at snobzones.com

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