Recognizing a serious need for affordable housing in the state, the Maine Legislature enacted a study order in 2003 that asked the state’s Community Preservation Advisory Committee (CPAC) to identify regulatory and other barriers to the creation of affordable housing, and to make recommendations on how to reduce those barriers. The CPAC formed an Affordable Housing Subcommittee (AHS) consisting of various groups with an interest in affordable housing and land use regulation. The subcommittee met five times in the latter part of 2003 and came up with a number of recommendations. The final report includes consensus opinions, as well as majority and minority positions on a few issues upon which the Subcommittee could not reach agreement. This article summarizes the Subcommittee’s concerns with processing issues, development fees, building codes, growth restrictions, and zoning and subdivision regulation. To read the entire report, go to “Affordable Housing: Barriers and Solutions for Maine” in the Regulatory Barriers Clearinghouse database.

Processing Issues

Many states are concerned that the time necessary to win approval of needed zoning changes and building permits has a tremendous impact on the cost of housing (the old “time is money” adage may well have been coined by an early observer of the construction industry). In this instance, the AHS is particularly concerned that the use of referenda to overturn local planning decisions is not fair to housing developers who have met local land use requirements and been approved by the local planning board. In response to these concerns, the AHS recommends that the Legislature prohibit the use of referendums to overturn local planning decisions.

Development Fees

Participants in Maine’s Affordable Housing Subcommittee have differing views on the negative effects of impact fees on affordable housing. While some think that fees are not a major problem if assessed in a manner consistent with state law, others consider fees to be an important issue.

Despite a lack of consensus on the effect impact fees have on affordable housing, the AHS recommends that the Legislature consider taking three actions. First, the Legislature should consider revising state law to prohibit municipalities who receive funding for public infrastructure from charging impact fees. Second, it contends that the law should be changed to prevent utility districts from charging impact fees for existing facilities. And last, the AHS recommends that affordable housing projects should be exempt from impact fees.

Building Codes and Enforcement

In its report, the AHS identifies conflicting codes, burdensome rehab code requirements, and an overall lack of uniform state building codes as practices that increase housing costs. It is also concerned about conflicts between building codes and fire codes. The AHS recommends that Maine create a state building code, and later, a state rehabilitation code.

Growth Restrictions

The AHS also identifies growth cap policies as one of the practices that increase housing costs by limiting the amount of land available for development. This type of ‘regulation-driven scarcity’ can increase the cost of the remaining available land. The AHS suggests that Maine’s local governments exempt affordable housing from any local growth cap ordinance; an approach that seeks a balance between the need to preserve open space while addressing the demand for low- and moderate-income housing.

Zoning and Subdivision Regulations

Maine’s AHS identifies a number of zoning or subdivision regulations that increase housing costs. These regulations include: requirements for large lot sizes, requirements for long road frontages, parking requirements, excessive tree requirements, density limitations, and prohibitions on accessory housing. The report also suggests that old ordinances which have only undergone piecemeal revisions can result in added costs.

The AHS goes on to recommend that the state consider enacting legislation that would give communities in high-demand areas two years to create an “affordable housing overlay district,” with density allowances and road frontage requirements that would encourage the development of affordable housing. It suggests that the Legislature should authorize the State Planning Office to impose such districts on communities that do not enact such ordnances within the two years. The Subcommittee acknowledges that this proposal may require some additional fine-tuning before it’s ready for the Legislature in final form.

Conclusion

Maine is one of several states that have studied and made recommendations to address the broad range of regulatory barriers that have an impact on the creation of affordable housing. While Maine’s AHS identified and offered solutions for many specific barriers to affordable housing, it also more broadly addressed the need to promote affordable housing as a desirable goal. In its report, the AHS suggests that the state reward municipalities that actively support affordable housing by increasing state assistance payments, or by providing bonus points on competitive funding applications. It also suggests monitoring local governments to assess their progress toward providing affordable housing, and publicizing how well local governments are doing on that score. By publishing the AHS report, “Affordable Housing: Barriers and Solutions for Maine,” the state has shown that you really can get there from here… and all it takes is a really good map.

In 2001, the Governor’s Center for Local Government Services, part of the Pennsylvania Department of Community and Economic Development (DCED), issued a publication titled “Reducing Land Use Barriers to Affordable Housing.” In this publication, DCED analyzed a number of regulatory practices that make it more expensive to create affordable housing. Rather than making recommendations to the state legislature, this publication offers solutions that local governments can consider and adopt. DCED focused on zoning and subdivision regulations and the process for securing approval for affordable housing construction and rehabilitation. To read the entire report, go to “Reducing Land Use Barriers to Affordable Housing” in the Regulatory Barriers Clearinghouse database.

Administrative Streamlining

Pennsylvania is one of many states expressing a common concern: that delays in zoning and building permit approvals increase development costs. In its report, the DCED finds that the lack of uniformity in land use ordinances results in higher costs, because smaller builders must secure the services of consultants to examine the nuances of each local process. It also argues that many ordinances are poorly drafted or consist of a collection of amendments attached to an outdated base. The DCED also finds that many communities require developers of multifamily housing to meet additional special exception requirements, provide technical reports, and contend with rezonings. In addition to these requirements, the DCED also found that there are delays in the approval process, despite the fact that the state Municipalities Planning Code envisions an approval process of no more than 180 days.

To address these processing issues, the DCED suggests that county planning commissions publish advisory guidelines and that countywide zoning and subdivision ordinances be explicitly crafted to promote uniformity. In addition, many of the current uses that are allowed as special exceptions or conditional uses could be made uses allowed “by-right.” The DCED also recommends that plan reviews proceed simultaneously, and that professional staff be delegated the authority to approve final plans for development.

Processing Fees

In its report, the DCED is concerned that plan review fees and fees for engineering inspection services can be excessive. To address the high cost of fees, the DCED thinks that municipalities should abide by a new state law that requires fees to be based on a pre-established schedule, and should not exceed norms established in the community.

Building Codes and Enforcement

The DCED’s report states that local codes often prohibit the use of new cost-saving construction materials and methods. Although most of its recommendations focus on actions that local municipalities can take to address the cost of affordable housing, in this case, the DCED suggests that the state adopt a standardized national code or encourage local building codes to permit the use of cost-saving materials and construction methods.

Zoning and Subdivision Regulations

The DCED report addresses a number of regulatory issues, including:

• Lack of land zoned for higher density residential uses;
• Lack of innovative zoning provisions for housing cluster techniques;
• The proliferation of residential districts with rigid requirements; and
• Restrictions against manufactured housing, home occupations, and housing for one- and two-person households.

The report further discusses a number of subdivision regulations that can at times prove burdensome. These include:

• Excessive street width requirements;
• Concrete storm water systems requirements;
• A requirement that sidewalks be built on both sides of the street;
• Excessive landscaping demands;
• Overly burdensome park and open space obligations; and
• Extravagant parking obligations.

The DCED recommends a number of regulatory reform measures that local governments could enact to promote the development of affordable housing. Though not an exhaustive list, suggestions include:

• Zoning industrial land for medium- and high-density development;
• Allowing mixed-use developments;
• Eliminating minimum floor area requirements;
• Reducing or eliminating large minimum tract sizes for cluster development;
• Reducing road frontage and front housing setbacks;
• Tailoring development standards for streets to suit the expected use; and
• Using natural surface drainage to reduce the cost of other public infrastructure.

Furthermore, the DCED recommends that local governments reduce minimum tree size requirements and require buffering around only those areas that are the most intensely developed. Additional recommendations address open space requirements, the proliferation in the number of residential districts, and prohibitions against such affordable alternatives as manufactured housing, home occupations, and housing for one- and two-person households.

Conclusion

Pennsylvania is one of many states that are actively engaged in efforts to reform land use regulations. In the report, “Reducing Land Use Barriers to Affordable Housing,” the state provides local governments with a number of specific examples of changes that can reduce costs and encourage the development of housing for those who work in the community.