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New Hampshire’s Housing Appeals Board: A Surgical Approach to State Land-Use Intervention

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New Hampshire’s Housing Appeals Board: A Surgical Approach to State Land-Use Intervention

May 11, 2021
Urban PolicyHousing

Executive Summary

Amid worsening housing shortages, states across the country are considering how to reform land-use policy. For a promising model of how to achieve strong reform with relative ease, policymakers ought to look to New Hampshire. Its new Housing Appeals Board (HAB) provides efficient administrative review of local land-use decisions while respecting local autonomy.

HAB represents a light-touch, small-government approach to state land-use policy. The board cannot review legislative enactments such as zoning or subdivision regulations; local governments can choose to zone however they wish. However, HAB does have broad power to review the discretionary and individualized processes, allowing it to reverse arbitrary and abusive decisions. HAB provides a superior alternative to judicial review, as its structure and process allow for a quicker and cheaper resolution of conflicts than the courts.

Because the HAB model is relatively simple to operate once formed, it will be easier to implement and may prove more politically sustainable compared with more direct alternatives such as statewide planning and widespread preemption. In this report, I will discuss the advantages of HAB’s structure as well as the history of its passage, which will offer generalizable lessons about assembling a pro-housing coalition. Finally, I will suggest ways in which the HAB model could be further improved.

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Introduction: New Hampshire’s Housing Appeals Board

Context

By any measure, the housing market in the Granite State is unhealthy. Commentators frequently note the state’s alarmingly low vacancy rate for both rental and owner-occupied housing.[1] On the heels of an economic boom and a hot housing market, the rental vacancy rate dipped below 1% in 2019 and was just 1.8% in July 2020.[2] For comparison, a healthy rental market has a vacancy rate of approximately 5%, and the nationwide rental vacancy rate was 6.6% in July 2020.

Meanwhile, rents in New Hampshire continue to accelerate at a rate far above inflation. New Hampshire faces challenges on both the supply and demand sides of the housing equation. On the demand side, New Hampshire’s quality of life, low taxes, and proximity to Boston are key. To this day, New Hampshire is the only state that lacks both a general income and sales tax. Even Democratic candidates for office in the state often take “The Pledge,” promising not to impose any broad-based taxes. In the words of Governor Chris Sununu: “Southern New Hampshire is a tax-free suburb of Boston.”[3]The state also has good schools, minimal crime, and low unemployment. Consequently, New Hampshire has managed to attract many more residents than the other two states in northern New England: Vermont and Maine. Decades of inward migration have led to soaring housing demand that now contributes to the state’s housing crisis.

On the supply side, New Hampshire faces the same problem as its New England neighbors: overly restrictive zoning. New Hampshire exemplifies the “homevoter” model of governance—one in which the influence of homeowners is especially large, which tends to favor measures that reduce the risk of adverse impacts to property values.[4] Traditions of local control and public finance only exacerbate the problem; small jurisdiction sizes, town-meeting direct democracy, and a reliance on property taxation have much to commend them, but they also help create the perfect political conditions for restrictive zoning.

The Nuts and Bolts

Given New Hampshire’s bias toward local control, any statewide land-use reform would need to strike a balance between local control and statewide interests. HAB does just that, by acting primarily as a procedural intervention without relying on heavy-handed state mandates. In doing so, it respects localism while attempting to address the state’s housing crunch. While HAB cannot rewrite zoning ordinances or subdivision regulations, it has broad authority to “hear and affirm, reverse, or modify, in whole or in part” a host of individualized local board decisions. Moreover, HAB has the ability to deem denied permits and applications approved and thus is able to order local governments to allow projects to proceed.

As an example of what HAB would be able to hear, consider the case of William and Monique Tanner in Hancock, New Hampshire.[5] They had hoped to convert their property, which is in a historic district, from a triplex to a single-family home to retire to. As part of their plans, they wanted to rebuild the garage in the same location, which required a variance to setback requirements. The local zoning board denied the variance, despite the fact that keeping the garage in the same location would be more in line with surrounding properties and the historic district’s existing character. This case, because it involves an individualized decision, represents the type of local government overreach that HAB could correct.

HAB’s broad authority means that there is very little that local governments can dream up to evade its scope. HAB has the power to review traditional decisions, such as planning board decisions on subdivisions and site plans and zoning board decisions on variances, special exceptions, administrative appeals, and ordinance administration. But it can also review land-use controls related to growth management, historic preservation, conservation, and workforce housing (i.e., inclusionary or subsidized housing). The board’s authority also extends to all other relevant permits and fees, matters related to mixed-use development, and the broadly defined “innovative land-use controls.”

HAB—which is modeled on the state’s Board of Tax and Land Appeals, which handles assessment disputes outside the judicial system—provides an administrative alternative to the judicial system. In land-use matters related to housing, it possesses concurrent jurisdiction with the New Hampshire Superior Court, and its decisions can be appealed to the New Hampshire Supreme Court, just as superior court cases can.[6] But HAB is faster and less expensive than traditional judicial review. Timing is key in real-estate development, and delays can often kill projects. HAB is less formal than the court system and relaxes certain procedural rules, such as strict rules of evidence. The board has only three full-time members and operates on a slim budget of $415,000. It also draws on nonlegal expertise: the first HAB consists of an attorney, a real-estate broker and a third party to be named later.[7] Appellants can also choose to be represented by nonlawyer experts, including professional engineers, architects, or land surveyors.

In addition to its low-cost structure, HAB works quickly. Appellants must file appeals within 30 days of receiving a final decision from the local government. The local government then has 30 days to respond and produce records of its proceedings. HAB then must hear the case within 90 days, and render a decision within 60 days of the hearing. The whole process, therefore, should take no longer than 180 days from receiving a final decision from the local government. By comparison, the judicial appeals process can often take several years.[8]

Because HAB only started taking cases in January 2021, we do not yet know how deferential it will be to local governments. Like those of many other states, New Hampshire’s state courts are rather deferential to local governments. The standard for judicial review of discretionary land-use decisions presumes that local officials’ findings of fact are “prima facie lawful and reasonable”—a high standard.[9] It remains to be seen how HAB will implement this requirement, but it can overrule local governments for “errors of law or if … persuaded by the balance of probabilities, on the evidence before it, that said decision is unreasonable,” just as in superior court. Given the less legalistic nature of the board, it should have more leeway than the judicial system in challenging local governments’ reasoning.

Procedural History

HAB was the result of a long and contentious process. In 2018, a bipartisan coalition led by Republican senator Bob Giuda introduced S.B. 557, which would establish a statewide board that would expedite review of local land-use decisions.[10] Ultimately, the bill passed the state senate and was retained in the house. A renewed effort came in 2019 with a more aggressive bill, H.B. 104.[11] H.B. 104 died in committee almost instantly, but the original sponsors’ version, S.B. 306, lived on. The primary difference between the two bills was the board’s composition and selection.[12] Most notably, the House version, which was drafted without consulting the original sponsors, shifted responsibility for appointments from the Supreme Court to the Governor—which was likely to result in a more political HAB that is less deferential to local governments. Ultimately, the Senate passed their bill with the intention of incorporating it into the state budget. When it did so, the outcry was enormous.

Land-use politics does not cleave along partisan lines. Opponents of development run the gamut from exclusionary Republicans to anti-gentrification and environmentalist Democrats. HAB generated significant opposition from both the left and right ends of the political spectrum.[13] Despite strong opposition to HAB, the issue was overshadowed by more contentious issues in the budget negotiations between Republican governor Sununu and the Democratic state legislature. The governor initially vetoed the proposed budget primarily because of differences over business taxes.[14] In the compromise that eventually emerged, the senate version of the Housing Appeals Board survived.[15]

The creation of HAB shows the potential power of even a single enthusiastically pro-housing legislator. Senator Giuda continuously championed the bill through the ordinary legislative and budgetary process, and it is much to his credit that it passed into law.[16] It is also of note that HAB was passed by a Democratic legislature—with support from a Republican governor and the state’s business community—as part of a broader deal on the state budget.[17] There may be something to using budget negotiations, or any complex process with other salient issues, to enact structural change. For example, North Carolina used its 2017 budget cycle to pass OPEB reform, eliminating retirement health insurance for future government employees and improving the state’s fiscal solvency.[18] A complex budget negotiation provides opportunities for bargaining not seen in regular legislation, reducing the transaction costs of assembling a pro-housing coalition.

The dynamics that led to HAB’s passage underscore some of the political economy dynamics that are common with land-use policy. In particular, the governor’s and the business community’s support for HAB are to be expected. Theoretically, the governor is likely to be the most pro-housing elected official in a state.[19] The governor represents and is elected by the entire state, which ensures that the governor is invested in the economic success of the state. The governor also must answer to constituencies beyond parochial homevoters, who are less dominant in higher-turnout statewide elections. One of these constituencies—business interests—is a major prohousing constituency because higher housing costs increase labor costs. In the case of HAB, it may have been especially helpful that the primary issue with the budget was business taxes, ensuring that business interests were maximally engaged.

To ensure a broader coalition, HAB offered a significant win to advocates of “workforce housing”, which includes subsidized units but is broader. In addition to its broad role in reviewing a wide variety of individual land-use decisions, HAB takes on a narrower and more powerful role in handling appeals for workforce housing. The board has the authority to override zoning ordinances for subsidized housing development in what is known as a builder’s remedy. In this regard, HAB mirrors the appeals process for subsidized housing common in other northeastern states. This marriage of convenience between supporters of market-rate housing and subsidized housing is not unique to New Hampshire. When Minneapolis engaged in its citywide rezoning, a similar coalition formed to abolish singlefamily zoning—a much more radical move than New Hampshire’s HAB.[20]

Predictably, when HAB became law, its opponents did not quit. They introduced numerous repeal bills.[21] Workforce housing advocates proved an important voice against its repeal, turning out in force at senate hearings to defend HAB.[22] So far, legislative efforts to repeal HAB have been unavailing, and even if they did manage to pass, they would face Governor Sununu’s veto pen. HAB appears here to stay. Policymakers in other states interested in structural land-use reform would do well to engage the same constituencies in assembling a pro-housing coalition.

Analysis

Comprehensive Coverage

The key strength of HAB—and why it is likely to be effective—is its broad coverage of all individualized land-use decisions outside the traditional zoning and subdivision ordinances. In recent decades, additional tools such as planned unit developments (PUDs), aesthetic and architectural review, conservation, growth management, and historic preservation have proliferated. While these tools allow for more tailored policymaking, they also present additional veto points for neighbors to agitate against new development.

HAB does not curtail local governments’ discretionary land-use power, but it does create a meaningful safeguard against its abuse. In doing so, it preserves the benefits of discretion—namely, flexibility and tailoring— while preventing local governments from using unfettered discretion to unfairly stall development. More generally, this model of individualized review for individual land-use decisions serves as a check on the increasing complexity of land-use procedure.

HAB’s comprehensive authority is important because local governments can often find creative workarounds when faced with constraints on their authority, thereby contravening the spirit, if not the letter, of state policy. But because HAB covers all existing and future forms of discretionary land-use authority, local governments cannot evade HAB oversight via “innovative” land-use controls. Moreover, local governments cannot easily substitute other powers to evade HAB oversight. For example, they cannot replace discretionary processes with small-scale rezonings, which often require voter approval and are therefore difficult to achieve. And because even small-scale zoning changes are more visible than individualized decisions, the state can more easily preempt them. For example, New Hampshire preempts local government regulation of accessory dwelling units (ADUs), also known as “granny flats.”[23]

Local governments that chafe at the state’s preemption law have passed restrictions of questionable legality, such as preventing ADUs from being rented out.[24] HAB’s coverage of fees is also key. A local government that disfavors development but that has its regulatory authority curtailed may instead resort to fees to tax new development. In these types of situations, HAB has the power to prevent local governments from acting illegally in a less cumbersome process than going to court.

Channeling Discretion with a Small-Government Approach

Even though HAB’s power is broad, it is far from a state takeover of local land use. While HAB can support other state interventions, such as New Hampshire’s ADU preemption law, it does not independently divest local governments of any power. This is a feature, not a bug, of HAB. In comparison with more radical state-level land-use reforms, local governments still retain broad discretion over individual land-use decisions. But most important, HAB does not impose any new limitations on local governments’ lawmaking ability—namely, their zoning and subdivision ordinances.

Fundamentally, HAB’s approach is one that respects localism. Local governments can still zone as restrictively as they wish but can no longer opaquely restrict development through ad hoc decisions. In response, local governments are likely to attempt to avoid HAB oversight by shifting away from individualized decisions and toward zoning amendments. But this response, if it does occur, would not mean that HAB has been rendered ineffective. Such a shift would reflect a healthier balance between discretionary decision-making and large-scale zoning. Increased discretion in recent decades has caused zoning ordinances to be less reflective of a jurisdiction’s actual disposition toward development.[25] If HAB does nothing but encourage greater transparency on the part of local governments—what legal scholars would refer to as information-forcing—it would still be a win. Legal certainty is an inherent good that minimizes information costs, allowing more efficient transactions and bargaining while reducing the amount of litigation.[26] By getting a better read on a local government’s actual baseline of land-use restriction, developers can better decide which projects are worth attempting.

These are not the only benefits that HAB is likely to produce; the board’s presence may also bring about a substantial reduction in the actual level of restrictiveness of local land-use regulations. One reason local governments prefer a wait-and-see, discretionary approach is to maximize negotiating leverage. By forcing developers to bargain over most everything, local governments can more easily force concessions such as exactions and impact fees. By policing exactions, HAB prevents local governments from abusing their advantaged bargaining positions to arbitrarily escalate their demands. In this way, HAB is a “developer’s approach” that smooths along the development process.

Moreover, discretionary processes are likely to result in more restrictive outcomes because they empower antidevelopment neighbors more than supporters of development. In recent years, scholars have become much less sanguine about individualized land-use decisions. In particular, they have noted that small-scale decisions tend to motivate immediate neighbors prone to NIMBYism more than the diffuse prohousing coalition.[27] This is because neighbors bear most of any new development’s negative externalities, such as congestion. On the other hand, supporters of development, such as renters and business interests, have relatively little stake in any individual project, even if they care about the size of the overall housing stock. The end result of this political economy problem is that NIMBYs are often the only voices in the room. This imbalance in motivation results in decisions being biased against development, even when the disposition of a jurisdiction’s electorate is relatively pro-development.

Shifting control of land-use policy back toward more comprehensive zoning is likely to resolve some of this asymmetry. When addressing the overall size of the housing stock rather than individual projects, political participation will tend to be more pluralistic and thus more reflective of the actual costs and benefits of development (rather than considering only the costs). Thus, in addition to blocking local government abuses, HAB nudges local governments into making less restrictive land-use decisions without forcing them to do so. This balanced approach keeps with New Hampshire’s localist traditions and avoids foisting new development onto communities that truly resist the idea. However, HAB should simultaneously help level a playing field slanted toward NIMBYs.

Another advantage of HAB is that it does not require a large state administrative bureaucracy to create and enforce land-use policy, in contrast with some other approaches. By using an individual appeals process, HAB does not intervene unless there is a real, live controversy. Ultimately, HAB is a relatively light-touch intervention that is quick, easy, and inexpensive to set up. While larger states will have more disputes than New Hampshire does, HAB’s approach is scalable enough to be replicable across the country.

Better than the Courts

The substitution of an efficient administrative process for a cumbersome judicial one may be the most meaningful part of the HAB model. For decades, courts have promised to intervene when local governments overstep their bounds in land-use regulation; yet their efforts have consistently fallen flat.[28] Ultimately, the key problems with a judicial appeals process are cost, speed, and a lack of expertise. HAB resolves each of these issues in turn. HAB’s more informal structure helps cut down on time and costs, making it likely that aggrieved developers and landowners will prefer to bring claims to HAB.

One reason that courts have struggled to effectively check local government power in context of land-use decisions is that land use is very difficult, requiring significant expertise and local knowledge. Here, HAB’s innovative structure has much to commend it. Generalist judges are often poorly equipped to handle the fact-intensive work of interrogating the alleged rationales behind land-use decisions. Thus, courts tend to be deferential to local governments in the land-use context. Sometimes they are bound by formal doctrine, as is the case in New Hampshire, but they may simply feel uncomfortable deciding land-use issues.

Because HAB has nonlawyer subject-matter experts, it can provide more meaningful review of local landuse decisions. New Hampshire’s move toward a quasilegal review process is a tacit acknowledgment that land-use decisions are a fact-intensive, rather than law-intensive, process. By involving lawyers as well as nonlawyer land-use experts, HAB is able to question the proffered reasoning for local land-use decisions. And because its experts feel more comfortable challenging local governments’ justifications, they should be more willing to act as well. The bottom line is that it should get cases right more often than courts do and be less prone to local government misdirection.

Comparison with Other State Approaches

It is worth comparing the New Hampshire HAB model with the three other approaches to land-use reform that have gained purchase: statewide planning, subsidized housing, and direct preemption. HAB possesses key advantages over all three approaches but also has the potential to supplement (limited) direct preemption.

Statewide Planning

In the statewide planning model of higher-level intervention, states mandate that local governments create comprehensive land-use plans, generally every seven to 10 years. The most relevant part of these comprehensive plans is the “housing element,” which targets a number of new housing units to keep up with expected population growth. State agencies forecast expected population changes and must approve the comprehensive plans, including the housing element. Once passed, the comprehensive plans are supposed to bind local land-use regulations and decisions. This is a centralized approach where mandates come from the state, though local governments have flexibility in how they implement the mandate.

The statewide planning approach arises from an era when land-use planning was in vogue on the West Coast.[29] California, Washington, and Oregon are among its most prominent adopters. Interestingly, these planning regimes originated when growth control and management were the latest buzzwords in land use. But while statewide planning was traditionally used to limit development, these states—especially California—have attempted to repurpose the model to promote greater housing development.

For a variety of reasons, the statewide planning approach has not shown results thus far. The first reason is that states have not been willing to enforce their mandates on local government. Historically, the penalties for noncompliance with the housing element were minor to nonexistent. Recent legislation in California, however, may help give the housing element more teeth, by making it a binding and self-executing contract on the part of local governments. If the state fully realizes this vision, developers will be able to apply for permits under the authority of the housing element alone, notwithstanding a conflicting zoning ordinance. However, California is not quite there yet, and its housing laws are uniquely convoluted and opaque.

The second and more fundamental reason is the difficulty, if not impossibility, of centralized planning. Land-use decisions, in particular, require a significant amount of local knowledge. Setting the housing targets for local governments has proved to be an especially thorny task for state planners; metrics such as population growth projections, affordability, and job growth all have serious issues.

Statewide planning also invites regulatory capture, given that some coordination with local governments is necessary for state planners to determine realistic targets; therefore, local officials can influence the process to set housing targets that are comically off the mark. Beverly Hills in 2018 famously exceeded its eight-year affordable housing target by a staggering 200%.[30] The target was three singular units. The town built nine.

Moreover, given the approach’s complexity, statewide planning requires a large administrative apparatus that is infeasible in any state besides California—and it may be too much even for California. California has been at the game for decades and only now seems to be getting somewhere in fits and starts. Even in the northeastern states fond of large government—namely, every state besides New Hampshire—it is difficult to see how they would be able to develop the bureaucratic infrastructure needed.

Subsidized Housing

This approach is defined by its exclusive focus on state-level intervention for subsidized housing. The most notable adherents to this approach are New Jersey, Connecticut, Rhode Island, Massachusetts, and now, with HAB’s establishment, New Hampshire.[31] The approach pays no attention to the overall size of the housing stock in a jurisdiction but rather the fraction of the housing stock that is available as subsidized units, typically by deed restriction. Generally, states set targets for each jurisdiction at a uniform level, usually 10%, or use more convoluted jurisdiction-specific calculations.

Any jurisdiction meeting the state’s subsidized housing target is immunized from state intervention in its land use affairs. Any local government that fails to meet the state’s target faces state override of its zoning ordinance for proposed developments with a substantial percentage of subsidized units, typically 20%–25%. Developers who propose such projects and are denied permission by the local government can appeal the decision to a state-level body that has the power to deem the project approved—the builder’s remedy. Recall that HAB is New Hampshire’s appellate body for subsidized (“workforce”) housing and possesses the builder’s remedy in addition to its other roles.

These states’ exclusive focus on subsidized housing is fundamentally misguided. If HAB only addressed subsidized housing, it would not be a promising model. Ultimately, subsidized housing is only a small fraction of the housing stock, and the number of units generated by such an approach hardly makes a dent in the Northeast’s generally high housing costs. However, as discussed in the history of HAB’s passage, advocates of subsidized housing can play an important role in a coalition for new development of both market-rate and subsidized housing.

Direct Preemption

Direct preemption is probably the approach to state land-use reform gaining the most momentum today.[32] In this approach, the state simply prevents local governments from zoning or regulating in a particular way. It is perhaps the simplest approach but also the least respectful of local autonomy. Direct preemption is not new, but it has historically focused on rather specific uses such as group homes, family day-care homes, and manufactured housing.[33] The new direct preemption is different in that it targets the general housing supply—the number of housing units and the forms of housing available. Thus far, states have mostly used preemption to chip away at single-family zoning. California, New Hampshire, Vermont, Oregon, and Washington require most local governments to allow ADUs in single-family zones. Oregon has since extended this concept further, banning single-family zoning altogether in most cities and requiring that they allow at least traditional duplexes.[34] In recent years, bills have been introduced in California to preempt not only single-family zoning but also a broader range of restrictive zoning around transit and job nodes. The efforts have met with fierce opposition and, so far, have not passed.[35]

While preemption can loosen local zoning, the approach may be too blunderbuss. In addition to potentially resulting in suboptimal project siting, broad preemption may not work for many jurisdictions. For example, even broad preemption of single-family zoning would not do much in New York City, where very little residential land is zoned for detached single-family houses. At the other end of the spectrum, it would also be unlikely to do much in rural New England states like New Hampshire, where a major limit on development is the frequent lack of municipal water and sewer services.

An additional issue with direct preemption is that local governments often deploy their residual regulatory authority to resist state incursions. The history of California’s ADU preemption laws provides a vivid example of local governments’ creativity.[36] When local governments lose part of their zoning authority, they often resort to non-zoning land-use controls, including parking requirements, discretionary processes, and fees, to achieve the same end. Thus, for direct preemption to be successful, states must preempt wide swaths of local governmental regulatory authority, not just zoning—including authority that usually serves a legitimate end but has the potential for abuse. The blunt nature and enforcement challenges of preemption should caution state policymakers against relying too heavily on it to boost housing production.

This is not to say that states should avoid all preemption. Direct preemption is perhaps best understood as a means of diversifying the housing stock. Single-family homes dominate the American housing landscape, and preemption can make more diverse housing forms—the “missing middle” between high-rises and detached homes—available. Limited preemption can be politically sustainable and have positive effects on the housing stock. ADU preemption, for example, does work. After several attempts, California’s ADU preemption law was able to start generating a meaningful number of accessory units; 20% of new housing units in Los Angeles are now ADUs.[37] Moreover, ADUs have minimal effect on the appearance and character of neighborhoods, limiting their perceived downsides compared with more general preemption. However, preemption should play only a modest role in state housing policy.

A key strength of HAB’s appeals process is that it complements this sort of limited preemption. Given that local governments often use their residual authority to stall unwanted development despite preemption, HAB makes it more difficult for them to run around state law. In doing so, HAB may obviate the need for more extreme preemption laws and result in preemption regimes that are more respectful of local authority. While HAB cannot compensate for a poorly designed preemption law, the availability of an appeals structure should encourage states to lean toward more flexible preemption regimes. States choosing between additional preemption and better enforcement of existing preemption through a mechanism like HAB should try better enforcement first.

Conclusion and Next Steps

It remains to be seen how much success New Hampshire HAB will ultimately have in alleviating the state’s housing crisis. But its model of state landuse policy is conceptually promising. HAB is perhaps best understood as minimally invasive surgery to carve out a metastasizing cancer. The approach is ultimately respectful of local autonomy, allowing local governments to adopt restrictive zoning codes if they so choose but no longer allowing them the discretion to maintain permissive zoning codes in theory while placing innumerable obstacles to new development in practice. It is fundamentally a small government and pro-localist approach to state land-use reform— one that is transferable to other states. In particular, other states in the Northeast with an appeals process for subsidized housing units could easily adapt their infrastructure to create a HAB-like body.

Still, New Hampshire and other states should consider potential improvements to the HAB model. States should put additional distance between HAB and the judicial process. Moving the appointments process from the judicial branch to the governor, as one version of the HAB bill did, would be helpful. Currently, by law, the state supreme court appoints a board consisting of at least one attorney and at least one professional engineer or land surveyor to staggered five-year terms. Members of the public are invited to apply online, and the justices select the members of HAB. It would make sense to shift this power to the state executive, given that the governor is more likely to understand the housing needs of the state and be able to balance competing interests. Relaxing HAB’s deference to local governments—while instituting more deferential judicial review of HAB—would further strengthen its prerogatives. The legislature can, and should, clarify these standards of review to give HAB sufficient leeway to operate.

However, instituting gubernatorial appointment may not be practical in the short term. Proponents of HAB vigorously cited its nonpartisan judicial appointment process in supporting the bill, and creating the perception that the body is partisan could destabilize the coalition supporting it. Still, New Hampshire’s relatively unpolarized politics should make it easier to move in this direction. In other states that attempt to emulate the HAB model, proponents should consider whether a judicial selection process is necessary to assemble a coalition and should opt for gubernatorial selection if politically viable.

HAB is not a panacea for all the housing market’s ills, but it is a strong start. As a procedural, rather than substantive, reform, HAB should be easier to implement and more politically sustainable than more ambitious proposals. At the same time, it has the potential to deliver meaningful results. Any state that is considering how to begin to address land-use reform would be wise to look to New Hampshire for inspiration.

Endnotes

See endnotes in PDF

Photo by Joshua Conover

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