Analysis of HB 1399

– Local Control is stripped from municipalities with a statewide, one-size-fits-all mandate.
– Unfunded mandates, forces municipalities to upgrade water and sewer systems.
– The character of neighborhoods will be gradually and forever changed as single-family zoning becomes overrun with rentals.
– Taxpayers see increased property taxes when demand for fire, police and EMT services increase, and school enrollment increases. Extra property tax paid by owners of rentals doesn’t cover increased services, shifting burden to other taxpayers.
– Two-unit buildings are now mandated to be allowed even in Industrial and Commercial Zones.
– Will/may create “spot zoning” if the ability to implement this RSA even exists.
– Legislation will be challenged in court.
– Like every other top-down zoning mandate recently proposed, municipalities already have the ability to adopt what this legislation proposes through the warrant article process.

The bill requires that on all lots of 2 acres or less – at least 50% of all single-family zoned lots – duplexes shall be allowed “by right”.

Based on that section of the proposed RSA, a two-unit residence would be permitted on property zoned industrial, commercial, agricultural, historic district or any property of 2 acres or less. And the municipality cannot deny.

This bill has an interesting clause/exception that deals with water and sewer. We know that adding up to an additional 50% residential units will increase and exceed the demands the current water and sewer lines. This bill states “you have 10 years to upgrade your water and sewer system, and if you don’t, we can build anyway… by right!” For the state to compel zoning changes, forcing a city to redo their water and sewer without providing funding, results in an unfunded mandate.

The municipality’s planners are going to have to be able to predict all future “proposed development.” Once it does that, it can determine whether the “proposed development” meets two alteration or demolition criteria and then attempt to predict and allocate between the 2 acre or less lots and 50% of residential lots. Confused yet? Just imagine those tasked with implement this!

Once the municipality calculates how many lots of 2 acres or less qualify, it must divide out those zoned for SF homes and then determine whether that is at least 50% of all SF-zoned lots. If it is less, presumably, the municipality must go back to predicting all future “proposed development” of SF homes and then allow duplexes in at least half that qualify under the two conditions. Crystal clear now? This is a massive case of mathematical gymnastics.

Continuing, the language in the bill will therefore require instances where a single lot qualifies, but none around it do, creating what is known as “spot zoning”. In the court case Bosse vs. Portsmouth heard decades ago, Bosse v. Portsmouth, spot zoning was adjudicated as illegal. An important line from that case stated:

“The adjoining property owners in the district are entitled to rely on the rule that a classification once made will not be changed unless the change is required for the public good”. In other words, the State should not be forcing zoning mandates onto towns and cities taking away the property rights of a municipality’s current citizens”.

Is there ever a scenario where any municipality is going to be able to figure out how to comply with this legislation?


This legislation has been poorly drafted and has been inadequately analyzed for its practical application.

Local control of zoning is the long-standing practice that gives the municipalities and its citizens the ability to change zoning if they determine that is the proper course of action.

Municipalities either prosper or fail based on their zoning decisions, as it should be in a free market.
Top-down zoning changes by the state, framed as “giving back property rights”, is misleading at best.

When you force legislation like this, you take away the property rights of existing homeowners who purchased their property based on current and known zoning rules.

This legislation is central planning at its worst, replicating the actions of Communist dictators. Our citizens’ existing property rights have a higher priority than the absolutist ideas of groups backed by those with special interests.

HB 1399 (along with HB 1291 to be heard in Commerce) is one of the worst bills we have seen in the history of our bill tracking. We strongly encourage the Senate to find this bill Inexpedient to Legislate.