State governments authorize local governments to regulate the use
of land by delegating the state’s police power to the local
government. States, therefore, play an important – perhaps
even pivotal – role in reforming rules that unnecessarily
impede availability or increase the cost of providing affordable
housing. A number of states have recently undertaken in-depth studies
of how local rules and regulations affect the cost of affordable
housing and have forged recommended solutions. The HUD NOFAs that
are being issued this year pose a number of questions on regulatory
barrier alleviation and removal strategies. Recognizing the importance
of the states’ role in regulatory reform, HUD has included
15 questions that specifically address state-level reform activities.
In this issue of Breakthroughs, we focus on work undertaken in
Maine and Pennsylvania to identify and recommend solutions for overcoming
specific regulatory barriers. The Maine study examines not only
zoning and subdivision regulations, but also impact fees, building
codes, growth restrictions and controls, and issues relating to
the processing of zoning and permit requests. The publication in
Pennsylvania focuses on zoning and subdivision regulations, as well
as the process for obtaining approvals to create affordable housing.
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.
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.
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
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.
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.
How Pennsylvania Addresses Regulatory Barriers
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.
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.
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;
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
Reducing road frontage and front housing setbacks;
Tailoring development standards for streets to suit the expected
Using natural surface drainage to reduce the cost of other
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.
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.
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