Good Growth

The Portsmouth Now! Action Plan For Sustainable Growth includes the following goals:


HEIGHT AND DENSITY LIMITS: An immediate emergency slowdown by enacting a 35-foot height limit (with “special use permit” for rare exceptions) and strict density limits downtown. The City Council recently okayed a 45-foot limit and “conditional use permit,” a much lower bar immediately circumvented by the HDC.

IMPROVE TRANSPARENCY ON LAND USE BOARDS: Restore public trust in the city’s land use boards by improving transparency. Like many cities, require all Portsmouth land use board members to fill out the same financial public disclosure forms required of the City Council and School Board. We need Planning Board, Board of Adjustment and Historic District Commission members who want to protect the city’s authentic historic character, rare views and low skyline

FIGHT FOR THE FEDERAL BUILDING: Stop the waffling and get the McIntyre Building for the city—as arranged 10 years ago by an inspired bill championed by GOP US Senator Judd Gregg—by hiring a tough DC lobbyist to fight for it. Not only would this benefit the public as the bill requires half of it to be devoted to public use, it could help ease downtown parking problems and supplement a garage outside the city center.

MORE TRANSPARENT PLANS AND IMPROVED PUBLIC ACCESS: Require accurate, honest plans in electronic form to be immediately posted online so the public can see them. Make plans visible to tv viewers during board meetings and work sessions. Notify abutters and post all meeting minutes in a legally timely way.

MAKE DEVELOPERS PAY FOR ALL THEIR PARKING; NO ON DOWNTOWN PARROT OR WORTH LOTS: Reduce downtown parking problems by tightening parking requirements for developers instead of asking property taxpayers to finance new downtown parking garages. No on taxpayer-funded parking garages on the Worth or Parrott lots, sure to draw thousands more cars downtown; make Portsmouth more bicycle-friendly instead.

EXPAND FORM-BASED ZONING AND HISTORIC DISTRICT TO STRESSED NEIGHBORHOODS: Expand form-based zoning efforts and the Historic District where appropriate to other Portsmouth neighborhoods that are under stress from over-development, such as all of Islington Street, Lafayette Road and Woodbury Ave.

MAKE DEVELOPERS PAY FOR DIGS ON DEVELOPMENT SITES: Automatically require big developers to finance archaeological digs on development sites so historic treasures do not get lost. A change to state law passed in June (2013) and taking effect next Jan. 1 will let New Hampshire communities require protection of archaeological artifacts during the development process. A federal law requiring an archaeological evaluation kicks in when federal money or permits are involved.

19 thoughts on “Good Growth

  1. Lawrence J. Cataldo

    Portsmouth’s future is tied to its historic charm and beauty. From all the studies that I read, keeping strict zoning rules in an historic district over time will pay substantial future dividents. Please approve this petition.

    Lawrence Cataldo
    133 Islington Street

  2. Celina

    Bold! Just what is needed. The community needs to engage in a planning process that reflects its vision for the city, seeks to preserve that which makes Portsmouth distinct thereby preserving what makes it economically viable and eminently livable.

  3. Duncan MacCallum

    I regret that I cannot sign this petition in its present form. Although I agree in principle with almost all of the goals outlined therein, I cannot endorse form-based zoning or ask that it be expanded, for I don’t know what form-based zoning is and don’t understand it, and I frankly don’t think that anyone else really does, either. (Significantly, it is not even mentioned in former City Attorney Peter Loughlin’s book, “New Hampshire Practice: Land Use Planning and Zoning,” which is the definitive modern treatise on New Hampshire zoning and land use law.) And I don’t endorse things that I don’t understand.

    At the very least, the concept needs far more vetting than it has undergone thus far.

    “Form-based zoning” has suddenly become the latest great buzzword (or “buzz phrase,” as the case may be). The problem with buzzwords, especially newly-minted ones, is that since nobody really knows what they mean–or will admit to not knowing–they are subject to differing interpretation and abuse. Developers are free to impose their own interpretations on them and to parade those interpretations as gospel, since nobody else knows any better. The LAST great buzzword, you will recall, was “mixed-use development,” which was used by developers to promote their obtrusive, inappropriate projects and to further lay waste to the charm and character of the downtown area. When appearing before the City Council and the land use boards, developers would mouth the phrase “mixed-use development” and would act as if those were the magic words which automatically entitled them to get what they wanted. Unfortunately, many dull-witted city councilors and land use board members acted that way, too.

    To cite another example, the same developers would also claim that their proposals were exactly what was envisioned by the city’s Master Plan and that their projects were merely implementing the Master Plan’s goals and aspirations. In fact, they weren’t at all. The Master Plan is another example of something that almost everyone has heard of, but that almost no one has actually read or knows the contents of.

    I don’t remember exactly when it was that I first heard the term “form-based zoning,” but whenever it was, it was sometime just within these past three or four months, since January 1st of this year. That isn’t exactly a generous amount of time to investigate and assess the potential effects of a zoning change that is likely to have a wide-ranging impact. Further, my understanding is that it is the brainchild of the Planning Department, which in and of itself gives me reason to be distrustful of it. This strikes me as yet another example of a zoning change or project which has been percolating within the walls of City Hall for some time, essentially in secrecy, and which the Planning Board and the city administration are now springing on the citizenry as a “done deal” and trying to ramrod through on short notice, under the pretext of urgency, before any of us peon residents has had any meaningful opportunity to study it and appraise its effects.

    In short, the concept of form-based zoning may be a prime illustration of the old adage, “Be careful of what you wish for; you may get it.” I fear that in supporting this zoning change, PortsmouthNow probably doesn’t know what it’s getting itself into. I strongly suspect that the developers and their attorneys already know what form-based zoning is and what its implications are. PortsmouthNow’s adherents should not be endorsing it until they do, too.

    As for myself, I cannot support it until I know a lot more about it than I know right now.

    Duncan MacCallum

    P.S. – I agree with the recently-posted comments of “Dixie,” who observes that the petition is rather huge and overwhelming and too much so to be signing in one sweep. I think that the petition should have been more focused on a single issue or two, instead of presenting a “Chinese menu” of demands which will be easier for the city councilors to ignore.

  4. John Schnitzler

    I feel the HDC needs a sub committee of consultants educated about historic architecture, Portsmouth history, historic building styles, details and materials, because so many things are happening in the city that really aren’t being fully explored before approvals. This could be a help for Council Members burdened with this new wave of building. I know from experience that I have to explain myself to the HDC about what’s period and what’s accurate and why I’ve made certain decisions, and perhaps an advisory sub group with more historic building knowledge could enhance consistency, efficiency and standards. PS: I really like this petition, especially the part on Zoning Board.

  5. Sam Winebaum

    Petition is outstanding in its scope. Not requiring large scale developments to provide parking ( underground preferable) or having parking and transportation to the city core planned and completed prior to allowing these large developments to proceed is one part of the overall problem in my view. I also spend time in Park City, UT where there are huge regular events such as Sundance, parades, art festivals in their very small narrow historic downtown. Everyone knows there is no parking downtown,very expensive parking, or permit only so satellite lots and a free year round city wide bus service is used by the vast majority of visitors when these peak events or just plain busy weekends occur. The increasing number of restaurant seats is a huge issue as these activities produce peaks in demand for parking. The push for the Worth Lot garage ( an area where I own property) is a desperate attempt to “fix” the lack of parking for the new restaurants, Portwalk and the North End and this at the expense of existing businesses and the overall fabric of downtown. Second, while marginally “historic” many of the new developments are have only historic veneers and it shows: concrete sills, box shapes, heights, etc…. I would caution that it is not always possible with new construction to reproduce the past in a given location.. Every attempt should be made to prevent complete tear downs. Maintaining the facades and street side scale of the old should be a priority. See this very cool connection of 2 historic Park City buildings: complete redo on the inside, modern connection but old scale and outside features down to fading paint had to be maintained. “Adaptive Use” : . Needless to say the project was a huge challenge but given the result and prime location it is also a huge business success.

    I like what is going to be done with the Art Space. It takes great architects and quality materials no matter the design. Portsmouth should demand nothing less. New history which will be appreciated 50 or a 100 years from now can also be created. As someone who worked on digs in Strawberry Banke in the early ’70’s I also applaud focusing on full archaeological digs. As far as “hardship”. It is not a hardship to be told that based on the zoning and the context that development has to meet certain standards of materials, scale, etc..

  6. Zelita Morgan

    There is a lot I don’t know about form based zoning. All I have heard so far has focused on benefits related to form, scale and design of buildings and development to the existing structures, but nowhere I hear or can find information on who and how the USE of new developments are regulated in form based zoning.

    I came across an article published at the University of Pennsylvania Journal of Law and Social Change, Vol 11, on which the author approaches FBZ from a very different perspective, and takes post-Katrina New Orleans as a case study. Link to the article is pasted at the end of my comments.

    Curious enough, the consulting company hired by the city to “educate” the public on form based zoning was also involved in the New Orleans post Katrina re-development. By the way, the Charrette is a public exercise part of the project implementation phase.

    Considering the magnitude of the changes FBZ can bring, this is another process in which true public input and participation has been marginalized if not suppressed. Does anyone believe the consultant hired to implement FBZ (and coordinate the Charrette) will disclose and/or discuss any of its controversial aspects?

  7. tom Emerson

    I cannot support the petition as a whole because although there are parts I find compelling, there are others I do not.
    Duncan, please educate yourself about form based codes. I believe you will like what you find, especially as it relates to Portsmouth. While these may be new to you, they have been around for a while and are the result of new urbanist thought that has been around for decades. A rush to judgement by using terms like “buzzword” and questioning the provenance of the idea only serves ignorance.
    John, I believe a peer review, rather than a subcommittee, is a better way to capture historic advice. The knowledge base you seek may not be available for a volunteer board. The cost of peer review would be born by the applicant.

    1. Duncan MacCallum

      The real “rush to judgment” here was in PortsmouthNow’s endorsing form-based zoning without knowing what it is, not my characterizing that term as a “buzzword”. And given the Planning Department’s and the city administration’s recent track record, you will please forgive my being suspicious. Under the circumstances, I think that I am entitled to question their motives without being accused of promoting ignorance.

      I will do what I can to educate myself about form-based zoning and will try to keep an open mind, but thus far the sources of information have not been plentiful. The city’s web site describes the seemingly-amorphous concept of form-based zoning only in ambiguous terms, and, as I noted earlier, that form of zoning is not even mentioned in Attorney Peter Loughlin’s book on zoning and land use law, so far as I have been able to tell.

      To give credit where credit is due, at least this time the city is making an effort to educate the public about form-based zoning in advance and to seek public input before implementing it. The city’s more usual modus operandi is to present major zoning changes and/or project approvals as faits accomplis and to jam them down the residents’ throats, without giving the latter any meaningful opportunity to study and comment upon them.

  8. Tom Emerson

    Zelita, obviously Form Based Codes are not focused on use, they are focused on form. Use would be handled seperately under the same title. Euclidian zoning has always focused on use because that it what prompted the implementation of zoning in the first place around a hundred years ago. Th piggery next to the hospital being the classic case. The current problems facing cities are different, so a different response is needed. The issues outlined here on PortsmouthNow are all about form, the size & location of buildings. I do not believe I’ve seen a single post here complaining about use. Your link to the Penn article is no longer active. Regarding a conflict of interest on the part of the consultant, why not just ask before questioning their motivations?

    Duncan, you profess ignorance of the issue at hand and then use it to question peoples motivations as well. There are whole books on form based codes, the result of new urbanist thought, as well as organizations, the Congress for the New Urbanism, the Form Based Codes Institute and the Center for Transect Studies. There are countless blog posts, white papers and videos. Focus on understanding the concept of the transect – it is central to understanding the issue.

    I guess I do not comprehend what seems to be conspiracy theory here. Please do not dismiss a good idea for reasons that have nothing to do with the idea itself.

    1. Duncan MacCallum

      The correct link to the University of Pennsylvania Law School article on form-based zoning is

      I just opened it a couple of minutes ago and had no trouble doing so.

      If for any reason you are unable to open it online, the citation to the article is Lolita Buckner Inniss, “Back to the Future: Is Form-Based Code an Efficacious Tool for Shaping Modern Civic Life?,” U. Pa. J.L. & Soc. Change 75 (2007), and it is available in printed form in the law review section of any major law library. Or call me, and I’ll provide you with a courtesy copy.

  9. Alex Carlton

    I grew up in the area and moved to NY for school and work. Today, I watched as the bell tower of a 100 year old church in a city across the river was demolished so a grocery store can move a block down the street…it was the only defining landmark in the skyline. I beg all of you, for the sake of the city I will always call home, come together and support this initiative, so you never have to witness such a thing.

  10. Tom Emerson

    Thank you for the link. In order to assess this article, you first must understand a few things about the author and the nature of her study. Lolita Buckner Inniss is a Professor at Cleveland State University Law School, where she teaches classes on property rights, criminal law, comparative racism and the law, law in literature and film and on intersectionality and the law. Intersectionality is the study of intersections between different disenfranchised groups or groups of minorities; specifically, the study of the interactions of multiple systems of oppression or [discrimination. She edits a blog called Ain’t I a Feminist Scholar Too, a blog that “Explores the relationship between Blackness, Feminism and Feminist legal scholarship.”
    The article was written as a legal paper under the general heading of social justice, not planning. Dr Bruckner Inniss has no background in planning and her status as a property rights scholar places her firmly in the pro-developer/owner camp. If you Google her, you will find the text of a speech she gave to the Property Rights Foundation of America on this same subject.
    Her issues with New Urbanism and thus Form Based Codes are, by her admission, that:
    1. “In advocating for norms to recreate the city of the past, FBCs seek to implement by design what was essentially a spontaneous and self-generated form of social organization driven largely by economic concerns rather than social or political concerns”. In other words, developers did what they wanted for their own economic reasons and society & government were expected to butt out. I doubt many here would shed tears for developers who don’t get what they want.
    2. “The implementation of form based code premised on the New Urbanism may lead to an ersatz Urbanism.” A fair concern as anytime you are trying to design something that looks old you run into an issue of authenticity. The Eagle Block on Market Square is a building made to look old. If you like that building, you wouldn’t have an issue here.
    3. “Form Based Codes reliance on the community to formulate design standards through the charette process has the potential to further isolate those who are already disadvantaged.” This might be an issue in a community where FBCs are intended to revitalize areas in urban decay, much less so in the parts of Portsmouth being studied.
    I don’t dismiss her concerns, but they are simply not as applicable to Portsmouth as they are to her hometown of Cleveland or to the rebuilding of New Orleans that she has studied. The issues in Portsmouth are not social; they are issues of urban design, exactly what Form Based Codes address.

  11. Zelita Morgan

    I remain unconvinced that there has been adequate public dialogue and input on whether FBZ is indeed the best path for downtown Portsmouth or for the city at all.

    By jumping straight into its implementation, residents and the community have been denied the opportunity of forming a well sounded opinion on FBZ. Instead, we have been brought into a full speed train with its charrette attached.

    An educated citizenry is one that comes together to learn, question and discuss new ideas before making decisions. To my knowledge, this critical level of public dialogue, input and deliberation has not taken place.

    1. Tom Emerson

      They are not rushing straight to implementation. There will be discussion and public hearings on a couple of different levels before form based codes can be implemented by vote of the Town Council. The charette was only a means to get the process started. The critical analysis will take place when there are actually documents to review.

  12. Michael Bellefeuille

    I just wanted to add that regarding the parking issue, there are several alternatives to on-site parking, which is not always appropriate in an urban setting. It would be great if all new developments could satisfy their own parking underground, but that is unrealistic, especially for smaller infill projects. Another idea–one that is used in Portland–is a payment in lieu of parking. Under such a proposal, a developer would have the option to either provide a certain amount of parking depending upon the size of the project, or make a payment to the city per space that is not provided. That payment could be dedicated to a fund for public parking, or better yet for public transit, a more comprehensive transit system being necessary if satellite parking is to be successful. If the goal is to reduce the bulk of parking garages downtown, then it might be wise to institute a maximum number of parking spaces allowed (especially above ground), and then stipulate that any development that would require more parking spaces instead make a payment to a public parking or transit fund. This would keep the mass of parking garages (and the blight of vast surface parking lots) out of downtown, while ensuring that satellite parking is funded, along with the public transit needed to get people there and to serve residents of Portsmouth.

    1. Duncan MacCallum

      Actually, the “payment in lieu of parking” plan unfortunately has already been tried, and it fell flat on its face-–thanks to the Zoning Board of Adjustment, which freely granted variances excusing business owners from that plan’s requirements.

      At this point I don’t remember all of the details, but perhaps 5-6 years ago the City Council either amended the zoning ordinance or otherwise implemented a requirement that business people opening up new businesses provide such-and-such a number of parking spaces for their customers or else make a fairly hefty payment in lieu of providing those spaces. In response to that initiative, new business owners countered by filing applications for variances with the ZBA, asking to be relieved from that requirement. As far as I am able to remember, the ZBA granted those variances every single time.

      In so doing, the ZBA plainly acted way outside of its authority, and as far as I’m concerned it’s not even a debatable point. The purpose of the ZBA is to decide the hard cases, the cases which fall at the fringes of the zoning ordinance, where a strict application of the zoning ordinance would be unreasonable because of some unusual feature of the land owner’s property, and where because of that feature it would be unfair to require him comply with the same requirements that everyone else does. However, the ZBA does not have the right or the authority to simply set aside the zoning ordinance altogether and to disregard its requirements simply because the board members think that the ordinance itself (or a specific provision thereof) is a bad one.

      However, the members of our illustrious ZBA think that they are vested with powers akin to that of a court of appeals, reversing decisions of the City Council and declaring zoning ordinance provisions unconstitutional, or the veto power of a governor, invalidating portions of the zoning ordinance and vetoing amendments which have been enacted by the Council.

      A more recent example of this abuse of power was the granting of a variance to permit Strawbery Banke to install a winter skating rink on its grounds. In effect, the ZBA rezoned Strawbery Banke’s parcel of land. Never mind the fact that the ZBA’s actions, if they had been done by the City Council itself, would have constituted unlawful “spot zoning”. By effectively rezoning Strawbery Banke’s property, the ZBA was plainly acting well outside of its authority-–and by a country mile. If there is any rezoning to be done, it is supposed to be done by the City Council, not by the Zoning Board of Adjustment. Sometimes that’s good, and sometimes it’s bad, depending on the composition of the City Council and the ZBA at any given point in time, but that’s the way it’s supposed to be.

      Returning to the subject of payment in lieu of parking, however, the ZBA did the same thing there. It once again usurped the authority of the City Council and started granting variances which relieved the business owners of the ordinance’s parking requirements (and payment requirements). In the end, the City Council simply gave up and dropped the requirement.

      In all fairness, the ordinance in question was not well thought-out, and the payment in lieu of parking requirement was quite onerous and very unfair to small business owners. Most of them could not possibly have afforded to open their new businesses if the ordinance had been enforced literally. (I have much less sympathy for the large hotel chains, national chain stores-–e.g., the Gap and Banana Republic-–and the developers, who were primarily responsible for creating the parking problem and who can better afford to pay the cost of fixing it.) The ordinance plainly needed some overhauling and fine-tuning. Still, the ordinance’s problems were for the City Council to solve, not the ZBA, and the latter had no business simply overruling a policy decision which the City Council had made in an effort to ameliorate the City’s parking problems.

      Anyway, that’s why we don’t have a “payment in lieu of parking” plan in place at the moment.

  13. Nancy Elwell

    Thanks Duncan. You made it possible to clearly understand what has troubled me for a very long time. Hope its fixable and soon!


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