http://www.tarkka.com/blog Tarkka Homes Blog http://www.tarkka.com/blog/11 March 2012 Home buyers are full of questions.  They want to know what things will cost and, more importantly, whether they can have them.  They read magazines, surf the web and make lists, long lists.  They watch cable channels and the lists get longer.  They ask builders plenty of questions, some of which I have been asked literally hundreds of times and others that are so unique that I have to imagine no one anywhere has ever been asked this question before.  And I’m supposed to figure out how to answer it.  Gee, thanks.  Let’s start with the most frequently asked questions when it comes to building and remodeling.  In my particular case, with my home office prominently advertised as being in Weare NH, I have to endure the endlessly repeated single word query “Where?”, followed by a self-satisfied chuckle for a solid piece of wry wit.  Not original, but everyone seems to think it’s hilarious.  But that’s just me.  For the typical builder, it is the perennial home show question “How much do you charge per square foot?”  The poor fools are expecting me to give them some kind of simple answer, like perhaps a number.  Nothing doing.  No, depending on the questioner, the cost per square foot response may require a nuanced explanation giving proper weight to the complexity of the issue, due consideration for the informative role of the answer and a tedious red-herring speech about how we arrive at the result without actually divulging the numerical value.  In short, reveal nothing.  It might sound like this: “In order to calculate the cost per square foot in monetary terms, we first plug the values into an algorithm developed by my nephew, who happens to be a high-functioning 12 year old idiot savant in his junior year at MIT.  We take the result and apply it as a proof to Fermat’s last theorem.  If we are successful, we then know that the actual cost is definable as a ratio to the amount of the floor area expressed in foot-dollars.”  Take that.       I also get some pretty unusual questions.  “Are you familiar with river recovered cypress flooring?  Some of it is prehistoric, over 1500 years old!”  My guess is lumber that old makes you feel younger, at least until I tell you the cost and your hair turns white.  I’ve had “Tell me, why are builders afraid to build a 13th floor but book publishers have no problem printing a chapter 11?”  Good one.  Or, “Do you do straw bale construction?”  I had to Google that one.  Here’s what I found.  The earliest known straw bale building in the United States was a schoolhouse built in Nebraska in 1897.  Unfenced and unprotected, it was eaten by cows in 1902.  To protect these buildings from hungry cows, they started plastering them with cement, lime-stucco or “gumbo mud”.  Home Depot does not stock gumbo mud so, no, I don’t do straw bale homes.  At a recent trade show, one short older gentleman whispered to me conspiratorially, “You know that they use shipping containers now, don’t you?”  “Umm, for what?”  “To build with.  Pile them up like blocks and make houses out of ‘em, they do.”  Back to Google I go and the first site that pops up is firmitas.org.  The cover page looks promising with the title “Shipping Container Architecture”, but then I notice some other links and articles.  Alongside their tutorial on the home building advantages of shipping containers, the website tells us that 9/11 was a lie perpetrated by the military industrial complex, whatever that is.  They also have interesting articles on the number of different types of atheists in the world.  The blogger has determined it to be 72.  Now I know why the little guy was whispering.  Shipping containers.    What’s next, popsicle sticks?  Fudge brownies battered with Preparation H so the squirrels don’t eat ‘em?  Hey, I’m all for alternative building methods that make sense, I mean it, but is it really necessary to promote used tires as a building material?  See earth911.com “Colorado Man Builds House of Tires” if you truly must know.  Sure, he used old tires headed for a landfill, 17,000 of them in fact, but why can’t we recycle them into, I don’t know, new tires?    To be sure, plenty of these products I had never heard of 10 years ago have now gone mainstream.  I especially like those insulated concrete form styrofoam thingies.  They remind me of my Flintstone blocks when I was a kid so I guess they really aren’t that new.  We use cork now for our kitchen flooring instead of plastic sheet vinyl.  Absurdly enough, we now find plastic “corks” in our wine bottles.  At what point did we decide we had this backwards?  And why on earth do we now use our dishwashers for cooking?  See treehugger.com/green-food for the recipe to make poached salmon while you clean your dishes.  In my house, the dishes are dirty after the cooking, but whatever.  While you’re there, you might also check out their compelling article on “Birch Sap, Nature’s Energy Drink”.  You can’t make this stuff up.... en-us Mon, 06 Aug 2012 11:10:46 -0700 http://www.tarkka.com/blog/10 December 2010             Before the “Great Housing Meltdown,” New Hampshire’s housing market was strong, creating numerous jobs in the building trades. During the 10 years prior to the collapse (1997-2006), Hillsborough County issued an average of 1,532 building permits per year for one- and two-family dwellings. In 2009, the last year for which U.S. Census data is available, Hillsborough County issued a mere 329 permits--a 79% plummet from the norm. In fact, the state as a whole averaged 6,112 dwelling unit permits during that same 10-year period, but could only muster 1,708 permits for one- and two-family homes in 2009. One would think that such a dramatic drop would galvanize state policymakers to do anything possible to nurture growth in the housing industry, and that new regulations adding costs, delays, or administrative burdens would be avoided. You would think...             Instead, the state has, in recent years, added regulations aimed to “fix what needs fixing.” In his third inaugural address in January 2009,  Governor John Lynch read a 2,375-word speech that made not a single reference to the housing industry. There was plenty of enthusiasm for a new Green Jobs Initiative that was supposed to have stimulus money pouring into the state, but not one word about housing and the related jobs crisis in that industry. One premise of the Green Jobs initiative was that if builders weren’t putting up homes, they could retool and get work providing energy retrofits. This may be true for companies experienced in bidding for government-subsidized work but most traditional builders are incapable of switching overnight from erecting homes to installing weatherization and conducting energy audits. In his speech, the closest the Governor came to acknowledging the dire housing situation was the statement that “Some families have seen their dream of home ownership in jeopardy.”  They certainly have.             Even in the wake of the recent “Republican Wave,” there are still numerous proposals on tap for the coming legislative session that will have negative impacts on construction. It will be interesting to see how the new majority party looks upon such legislation. One can only hope that the impact on jobs--which was the only issue that mattered in this last election--will be the litmus test for all such legislation. If successful, several of these proposed bills are sure to wound the industry further.             For example, consider the proposal for protective buffer areas of up to 100 feet to surround wetlands that score high on a numeric rating system. A 50-foot buffer would apply to wetlands that score more moderately. Land owners wishing to develop their property will have to pay a qualified expert to prove that mid- to high-value wetlands are not present. If a land owner has a high-scoring wetland measuring one acre, an additional 2.5 acres will become undevelopable due to the required 100-foot wide buffer areas. How high is too high on this numeric rating system? We don’t know because the method of calculation is not fully developed. The core of the new system lies in an as yet unpublished document. Nevertheless, the HB1579 Land Use Commission recommended moving forward with it anyway.             On another front, the Department of Labor has taken the position that it does not possess enough tools to deal with the widespread problem of employee misclassification;meaning that someone who is paid as an independent contractor is actually an employee. The Department is expected to support a bill granting them the authority to issue stop-work orders against egregious offenders of workers compensation laws. The Home Builders and the Associated General Contractors pointed out that stop-work orders can seriously impact everyone on a job site, not just the offenders. For example, if a drywall contractor is suddenly shut down, the painters, carpenters, and every worker coming behind them are effectively shut down as well. Accepting the fact that misclassification is a problem, the question remains; should we really be worried about those lucky enough to have work when creating jobs is our biggest problem? No employee should be misclassified as an independent contractor, but are we really helping workers (and the job situation overall) by sending them home through a stop-work order?             There is also cause for concern if Republicans get “repeal happy’ thanks to their super majority. One new law in the crosshairs is HB1554, which created Clean Energy Districts. I have maintained in this column that green building standards should not become a requirement across jurisdictions, but the fact remains that this is a vibrant niche for those skilled builders and environmentally conscious home buyers who support them. HB1554 enables towns to offer financing, payable through special assessments, for home energy improvements. The finance mechanism may need a tweak in order to work efficiently, and the program remains entirely optional for communities, yet this small encouragement for green building is one of the few new laws that might actually create local jobs. Even so, it may be under attack. Incentive-based laws such as HB1554 usually work out, but in this case, depending on how things go, we may never find out.             Another Republican recently mentioned to me that he would like to see the statewide building code repealed. This would not be helpful. Builders will always be required to operate under one code or another and it is far more efficient to have one code throughout the state than many codes in different towns. Yes, the Home Builders have complained that certain codes are overreaching and unable to withstand a cost/benefit analysis, but that does not mean that all codes should be eliminated. Nor does it mean that the state should take radical steps in the name of some libertarian effort to shrink the influence of government. Such a move would only lead us back to the haphazard chaos of each jurisdiction writing its own rule book. This would lead to a very subjective ruling on code issues, which could lead to increased costs. This is not the kind of scenario we need in these times.             The International Code Council has just wrapped up their actions for the 2012 code cycle. In particular, the International Energy Conservation Code (IECC) will have dramatic changes that will increase costs and push more first-time home buyers out of the marketplace. Figures for the cost increases are not yet available, but the code is reported to be 30% more restrictive than IECC 2006. Once again, the popular energy efficiency lobby wins at the expense of more residential job losses. While increased efficiencies are a good thing, they are of no value to someone who cannot afford to buy a home. It is reasonable to assume that energy codes will continue to require greater performance values, as they should, but the changes are occurring at a faster pace than markets can absorb. The ICC and the Federal Department of Energy need to understand this.             The National Association of Home Builders (NAHB) has determined that construction of each single family home creates 3.24 jobs. Based on that, the 2009 housing permit figures quoted at the beginning of this article represent a loss of 14,269 good paying jobs in New Hampshire. At the time of this writing, forecasts for 2011 were only slightly better, and the latest foreclosure debacle will likely prolong the miasma for several more years. In past downturns, home builders moved into other areas of construction, such as remodeling or commercial work. But remodeling numbers are off as well, and heavy competition in commercial work does not afford many opportunities for home builders to change business models. Therefore, the job losses for residential builders are even greater, perhaps as high as 20,000 or more. In the coming legislative session, nothing will be more important than safeguarding what remaining construction jobs we have and preventing legislation that will jeopardize the growth we so desperately need.... en-us Mon, 06 Aug 2012 11:06:57 -0700 http://www.tarkka.com/blog/9 June 2010 At first glance, the recently passed House Bill 1380 may seem benign. It simply grants a local zoning board of adjustment (ZBA) the ability to hire its own technical experts at the expense of an applicant when considering land use proposals. While the bill merely clarifies an authority that many believe already exists,HB1380 also has the potential to cause overlapping of ZBA and planning board jurisdictions, making it more difficult and costly to obtain land-use permits. This could grow into a very big problem for developers.   When the Legislature openly condones (and therefore encourages) zoning boards to hire soil and wetland experts to review technical matters, they are saying that it is okay to function more like a permitting authority. As a quasi-judicial body, a ZBA is supposed to act in a similar fashion to a court of law.  Their main purpose is to safeguard against absurd and pointless outcomes when the regulatory scheme of a city or town does injustice to a land use application. In such cases, a ZBA may grant relief in three ways: variances to zoning ordinances, special exceptions and appeals from administrative decisions. Their role is vital as a safety valve for land owners to seek remedies when zoning and regulation is unfair in a particular situation.   In reality, ZBAs should rarely need technical experts for the types of applications that come before them. Simply put, ZBAs exist to dispense justice while planning boards exist to dispense permits. A ZBA should be looking at land use from a mile-high view and not through a microscope. The more ZBAs and planning boards are encouraged to look at the same issues and ask the same types of questions, the greater the chance for double jeopardy. The duplication of reviews is not only more costly and time consuming for applicants, it greatly increases the chances that a project will be denied.  HB1380 was prompted by the lawsuit of Continental Paving v. Town of Litchfield.  Ironically, the outcome of the suit would be unchanged even if the new law was in place at the time.  The case involved an appeal by Continental of the denial of a special exception by the town’s ZBA to build a gravel road across a property in Litchfield. The road, which was for the occasional and private use of a sportsman’s club, was to be 67 feet from a vernal pool. The Litchfield zoning ordinance allows roads within 200 feet of a vernal pool only by special exception, which go before the ZBA by law.    The criteria for a special exception in Litchfield reads in part “The burden of proof shall be upon the applicant who shall furnish such engineering and hydrological data as is reasonably necessary.” Continental retained two experts, a wetland scientist and a field biologist. Both testified to the ZBA that the pool would not be adversely impacted by the proposed road and that best management practices would provide adequate protection. Licensed professionals do not make such statements lightly and there was no expert opinion to contradict these findings nor any evidence that would undermine the credibility of these experts. Continental met their burden of proof for a special exception but the application was denied anyway, twice in fact.    The ZBA claimed that they relied on a pamphlet published by the Audubon Society in 1998 that recommended a minimum 100 foot no-disturbance buffer surrounding vernal pools. The court was unimpressed. Although the pamphlet discussed vernal pools generally, it did not consider the particular vernal pool in question and did not directly address the experts’ conclusions; thus it was insufficient as a rebuttal to the professional testimony. The court stated that a municipal board cannot simply ignore the testimony of experts in favor of recommendations from a leaflet by some non-profit.    It is important to note here that at no time did the Litchfield ZBA seek peer review of the expert testimony. They certainly could have asked for another wetland scientist to look at the pool and report back to them, all at the expense of the applicant. They simply chose not to.  The court ruled in favor of Continental, and the special exception was granted.  As a result of this ruling, some municipal attorneys worried that a lack of any rebuttal testimony in the face of supporting expert testimony must necessarily lead to a favorable conclusion for the applicant. Well, yeah. When you are faced with a technical question and armed with an answer from a qualified professional with no contrary opinion from any credible source, what other conclusion can you reasonably draw? As a ZBA, you did your job; you worried about it, you asked the expert, he told you there was nothing to worry about, and you’re done.  Indeed, the Litchfield attorneys tried to argue that this logic eviscerated the ZBA’s ability to make judgments about testimony and credibility. They reasoned that the Audubon pamphlet amounted to personal knowledge possessed by board members, which could cause them to doubt the expert testimony. Would this mean that every municipal board possessing an Audubon pamphlet from 1998 must necessarily deny all applications for disturbance within 200 feet of a wetland? One would hope not.   Granted, in a hypothetical situation where an applicant provides the needed proof through licensed experts but refuses to pay for corroboration from a third party, a ZBA would have a problem unless the law addresses their right to that third party. This is the essence of HB 1380, which envisions this possibility and clearly authorizes the ZBA to hire its own gun on the applicant’s nickel. Fair enough. No one is arguing that towns should have to absorb this expense.  That said, this brings me back to my main source of heartburn with this bill.  Why is a ZBA considering detailed and technical evidence about vernal pools in the first place? Isn’t this the stuff of planning boards and conservation commissions? Discussion of vernal pool impacts falls under the area of environmental permitting and therefore better suited to procedures before planning boards who deal with such matters all of the time. Had this been a conditional use permit before a planning board rather than a special exception before a ZBA, there would have been peer review of the technical reports and testimony. This is what planning boards do.  That’s the real problem in this situation and HB1380 is fixing the wrong problem.  Litchfield simply has to change their ordinance to direct vernal pool impacts to the planning board and the conservation commission.  The Legislature should instead work on a better definition of the differences between ZBAs and planning boards.  Extending both boards the same authority only blurs their distinctions and confuses everyone.  In fact, hiring experts to work on behalf of planning boards is so commonplace, and oftentimes abused, that the Home Builders & Remodelers Association of New Hampshire had to champion a bill to bring accountability to the practice.  (Note: that bill passed and is now law.) Will zoning boards now get trigger-happy with expensive experts as well? Worse, imagine if you have to convince a ZBA that your project does no harm to the environment although it does not technically follow the regulations. If you are lucky enough to get the first approval, does that mean that the planning board will not be able to pursue those same inquiries? Put another way, do we have to win the same fight twice before two different boards?   This thought is especially chilling when you think about how ZBA members often quarrel with their planning board counterparts. It’s natural, production always hates sales.  Hands up, who likes the idea of having to get the same “yes” vote from two boards who don’t like each other? Anyone?  Although the HBRANH was able to inject language into HB 1380 to discourage this duplication of review, the underlying objection remains unaddressed.  As land use applications and their appurtenant hurdles (permits, variances, etc.) become increasingly complicated, it is vital for the respective boards and authorities to stay within their sphere of knowledge and jurisdiction. ZBA matters are bewildering enough already. Let’s not complicate things further by creating the Conservation Planning Board of Zoning Adjustment.    ... en-us Mon, 06 Aug 2012 10:59:32 -0700 http://www.tarkka.com/blog/8 March 2010  There are times when the legislative process in our state capital departs from the carefully deliberative approach to lawmaking it is intended to be in favor of something more akin to a grand game of Whack-a-Mole, which it often becomes.  This scenario plays out whenever the New Hampshire Supreme Court rules in a manner that is unsatisfying to someone who has the time and resources to do something about it.  A legislative Band-Aid is introduced to address the newfound failings of the law, perceived or otherwise.  Predictably, the Greenland Conservation Commission v. NH Wetlands Council ruling in 2006 did not disappoint.  The Greenland case spawned House Bill 222, an environmental bill aimed at wetlands impacts and advertised as the legislative response to the outrage stemming from the Falls Way subdivision, which was the subject of the lawsuit. If passed, HB 222 will allow the Department of Environmental Services (DES) to regulate indirect impacts to wetlands in addition to the direct impacts it considers in a dredge and fill permit. The bill was introduced in January of 2009 and, as of this writing, continues to make its way through the New Hampshire House and eventually the Senate.     The bill neither tells us precisely what indirect impacts it contemplates nor does it elaborate on how much regulation the department is to impose.  It doesn’t even tell us when the department will apply its added authority.  In fact, the entire bill is no more than a single sentence added to an existing statute.  It reads in full: “As part of its decision-making relative to these purposes, the department may consider the impacts from non-wetland portions of a project and the impacts from the project’s post-construction use and maintenance.”  Note that the word “may” allows the department to act at its own discretion, which is tantamount to giving the department the ability to establish its own jurisdictional boundaries, which is an unprecedented amount of leash for a state agency. Ironically, DES neither wants such open-ended authority nor does it feel that the environment will gain any added protections as a result. Think about that, the legislature is pursuing environmental policy that its own Commissioner of DES openly opposes as unnecessary and seriously problematic. Still, this inconvenient truth has done nothing to stop the agents of change.    The shortcomings of this language are shrugged off by the bill proponents as something that can be fixed in rulemaking, or better yet, amended in the Senate after it passes the House. Put another way, House members are supposed to vote in favor of a bill that is admittedly flawed in order to rectify the untenable assault on the environment that comes post-Greenland. Such assurances that urgency is needed are touted as self evident but the call to arms by the environmental community to plug the indirect impact loophole does not hold up under scrutiny and examination of the evidence.    First, consider what actually happened in the Greenland case, the facts of which are largely unknown to the lawmakers who will vote to “fix” the problems the decision presented. The developer owned a 212 acre tract of land that earned subdivision approval in 2002 for a 79 lot housing development from the local planning board.  He then applied to DES for a standard dredge and fill permit for the roadway to access the property.  As part of the approval for that permit, DES required 98 acres of land to be set aside in permanent conservation and another half acre of new marshland to be created.  Enter stage right the Conservation Law Foundation (CLF) and the Greenland Conservation Commission (GCC).  These two groups, who became the plaintiffs in the eventual lawsuit, appealed the issuance of the wetland permit, causing it to be subsequently revoked in favor of a new and more stringent permit, this time requiring an additional 50 percent reduction in wetland impacts, a new 100 foot bridge and an additional 8 acres of conservation land to be set aside. More importantly, and this is vitally important, DES established a 50 foot upland buffer area from wetlands along 10 of the building lots as a condition of the permit issuance.  Remember that the proponents of HB222 are saying that DES currently lacks the authority to regulate uplands.  Yet here we have an upland buffer area of which the court took note and deemed it to be legal and binding.  What gives?  Still unhappy, CLF and the GCC unsuccessfully appealed the second permit.  Undaunted, they next appealed to the Rockingham Superior Court where the decision to grant the permit was once again upheld.  Eventually, and after four years of this haggling, all parties found themselves in the state Supreme Court.  This court, as had each court, council, board and bureau before it, ruled in favor of the DES permit issuance and by default the developer.  With all of the avenues of appeal exhausted, the developer could finally begin the project. The only problem was that it was now 2006 and the housing balloon was about to pop.   A subtlety of the Greenland case is that the environmental advocates complained that DES failed to consider impacts far beyond the typical fodder of a dredge and fill permit. In their decision, the justices said that even if DES had sought to regulate indirect impacts in the manner that the environmentalists were demanding, they did not possess the authority to do so.  And there’s the rub. CLF wants the department to look at supposed impacts that DES has no current interest in addressing. DES department heads have testified that they are well satisfied with their ability to assess impacts and are particularly confident that the Falls Way development in Greenland will not adversely impact the nearby wetlands. Indeed, there has been no actual environmental disaster brought to the attention of the legislature in a full year of testimony that would suggest an urgent response, yet this false sense of urgency more than anything else is what has propelled HB222 forward.  One representative of CLF testifying in favor of HB222 gave this reason to pass something, anything: “…we don’t want any more projects falling through the cracks.”  Presumably he was referring to Falls Way. This ridiculous characterization of the Greenland situation can only be made with the confidence that no one is checking the facts.  The Falls Way project was proposed in 2002 when the housing market was poised for its record-setting run. Even though the developer won every appeal and argument along the way, the environmentalists successfully stalled the project long enough to miss the market window, cause serious financial harm and leave the project to struggle through this down market. Falling through the environmental cracks? Such hubris.  Ironically, the fans of HB222 assure us that this bill is intended to clarify the statute so that DES can exercise whatever discretion it needs on a case-by-case basis and prevent the type of litigation that occurred in Greenland. The opposite outcome is far more likely.  Let’s look at the clarity that the new language is supposed to bring. If there is a Greenland 2 with similar circumstances, DES might well act as it did before by imposing restrictions and mitigation appropriate for the situation without getting too crazy about indirect impacts. Someone will be unhappy and claim that DES should have done more. As it winds its way up the litigatory ladder, the N.H. Supreme Court will consider the words of the legislature. DES “may” consider indirect impacts. “May” means that it is their discretion to act or not to act on indirect impacts; judgment to DES and the developer. Such is the nature of hasty legislation.  At best it is of little worth and at worst it causes more harm than good.    Editors Note:  Since the writing of this article, HB222 did not garner sufficient votes to pass and was instead referred to interim study where it will stay while the Land Use Commission completes its work and files its report.  ... en-us Mon, 06 Aug 2012 10:58:31 -0700