Posted by: Patricia Salkin | November 23, 2019

White House Council on Removing Regulatory Barriers to Affordable Housing Seeks Comments

On June 25, 2019, President Trump issued an Executive Order creating a White House Council on Removing Regulatory Barriers to Affordable Housing.  See, https://www.whitehouse.gov/presidential-actions/executive-order-establishing-white-house-council-eliminating-regulatory-barriers-affordable-housing/

On November 22, 2019 the Council issued a call for public comments – due January 21, 2020 – on federal, State, local, and Tribal laws, regulations, land use requirements, and administrative practices that artificially raise the costs of affordable housing development and contribute to shortages in housing supply. See, https://www.regulations.gov/document?D=HUD-2019-0092-0001

Comments are sought on the following:

“While HUD welcomes comments on all aspects of developing a plan for reducing barriers to affordable housing development, HUD is particularly interested in receiving information, data, analyses, and recommendations on the following:

(1) Federal Barriers to Affordable Housing Development. HUD requests comments that identify specific HUD regulations, statutes, programs and practices that directly or indirectly restrict the supply of housing or increase the cost of housing. In thinking about the impact that the laws, regulations, statutes, programs and policies of HUD programs may have on the housing construction and development industry, please consider:

a. Federal laws, regulations, and administrative practices of HUD programs that directly or indirectly artificially raise the costs of housing development and contribute to shortages in housing supply, in HUD’s program implementation itself, or because of their impact on State, local, and Tribal government policymaking. Do these laws, regulations, or administrative practices produce any benefits to the resident, homeowner, state, or locality that would be eliminated if the requirement were reduced or eliminated?

b. Recommendations, strategies, solutions or best practice models that have been established to streamline, reduce or eliminate overly restrictive construction and development regulations, requirements or administrative practices identified above.

c. What are the policy interventions, solutions or strategies available to federal decision makers for incentivizing state and local governments to review their regulatory environment? To aid them in streamlining, reducing or eliminating the negative impact of state and local laws, regulations, and administrative practices identified in the questions below?

d. What is the potential impact, positive or negative, of streamlining, reducing, or eliminating the identified regulations, requirements or administrative practices?

(2) State Barriers to Affordable Housing Development. Since the 1920s States have given ultimate zoning authority to their local government units. Additionally, States have left it to the local jurisdictions to create their own governing structure and to delegate further authority across local government silos, often leading to fragmented, overlapping or duplicative review processes of construction projects. Finally, States almost always impose a bifurcated review process for larger scale infrastructure projects that require environmental review. However, States, by their regional nature, are more attuned with how local policies have larger economic consequences to regional economies. In thinking about the role of the state in the building construction industry, consider the following questions:

a. In what ways do State-level laws, practices, and programs contribute to delays in the construction industry? Are there particular laws, practices and programs that could be reviewed for potential barriers?

b. What are the policy interventions, solutions or strategies available to State decision makers for incentivizing local governments to review their regulatory environment? To aid them in streamlining, reducing or eliminating the negative impact of local and State laws, regulations, and administrative practices identified in the question above?

(3) Local Barriers to Affordable Housing Development. While a traditional characterization for the adoption and maintenance of some barriers to affordable housing development is that they reflect a “Not in My Back Yard” (“NIMBY”) disposition, their widespread and long-term prevalence suggests some substantive bases for their existence. For the purposes of this RFI, we define “local” to include all local government units that have constitutional authority given by the State to make decisions on land use planning and growth management, including cities, towns, parishes, designated places, counties, and rural communities, as well as regional entities that have decision-making authority on these land-use issues under State statutes. When identifying regulatory barriers and understanding the impacts on housing costs, there are several issues to consider:

a. What are the common motivations or factors that underlie the adoption of laws, regulations, and practices that demonstrably raise the cost of housing development? Do these considerations vary geographically?

b. How do local decision makers determine whether laws, regulations, or practices artificially or unnecessarily contribute to this problem? Do decision makers undertake cost-benefit analyses, and if so, how do they use them?

c. What are the policy interventions, solutions or strategies available to local decision makers for streamlining, reducing or eliminating the negative impact of these laws, regulations, and administrative practices identified in the question above?

(4) Basis for Reducing Barriers to Affordable Housing Development. In thinking about streamlining, reducing or eliminating barriers to affordable housing development, please consider the following:

a. What are the economic and social benefits to American families and individuals, the local community, the State or Tribe, and the nation that would be realized by reducing regulatory barriers to affordable housing development?

i. To what extent is there agreement that specific regulations and administrative practices result in higher cost or reduced availability of affordable market rate housing for potential homeowners and renters?

ii. Assuming agreement that specific regulations and administrative practices create impediments to affordable housing development by increasing the costs of either construction of housing or preservation of housing supply, are these costs of such regulation and practices quantifiable? What evidence is there to support this finding?

b. Are there regulations that may delay the process of building affordable housing but are necessary to ensure a certain level of quality is achieved in the construction?

c. How should one evaluate the cost of burdensome regulations on the local housing market? How should one determine the benefits of reducing those costs?

i. If you have knowledge of jurisdictions that have successfully implemented creative solutions to reduce regulatory barriers, please describe specific land use requirements that were demonstrated to have raised the cost of housing.

ii. In responding to item (i) above, please discuss how these jurisdictions offered incentives, sanctions or implemented policies that effectively reduced or eliminated overly restrictive, outdated, or otherwise burdensome land use regulations.

iii. For jurisdictions that considered reducing the barriers but ultimately did not take action to do so, what was the basis for that inaction?

(5) Plan Development and Implementation. In general, HUD is interested in what actions it should recommend or implement to assist States, Tribes, and local governments in reducing or eliminating barriers to affordable housing development.

a. Regarding HUD’s rules, regulations, and statutes, what actions can the Department take to significantly reduce (or eliminate) barriers to affordable housing development while remaining committed to its mission to expand affordable housing options and support decent, safe and sanitary housing for all Americans? Please provide detailed examples, if possible.

b. Regarding the recommendations provided to HUD above, what actions could the Department implement to create incentives for States, Tribes, or local jurisdictions to encourage regulatory review and reform? For communities that have achieved regulatory reform, how might the Department learn from successful policies that were adopted at the State, Tribal, or local level? How might the Department create guidance for other jurisdictions looking to achieve reform?

(6) Research Questions.

a. What peer-reviewed research and/or representative surveys provide quantitative analyses on the impact of regulations on cost of affordable housing development? Do these analyses demonstrate evidence on the degree or severity of impact? How strongly supported are the conclusions of the research? Provide citations for research referenced.

b. What performance measures, quantitative and/or qualitative, should the Council consider in assessing the reduction of barriers nationally or regionally? What are the advantages and disadvantages of each measure? Among the measures recommended above, how should they be prioritized? Such measures could include, but would not be limited to, the following:

i. The rate of housing production, considering a range of cofactors, including domestic and international migration patterns and rates of family formation;

ii. The number of housing construction permits, construction starts, and completions;

iii. The number of burden-reducing legislative or regulatory actions, considering suitable baselines;

iv. A list of best practice models based on recommendations from stakeholders and the public and reviewed by subject matter experts;

v. Housing development processing times and costs, considering a range of cofactors;

vi. Whether jurisdictions’ barrier reduction was temporary (e.g., a project- or grant/program-specific waiver) or permanent;

vii. Whether there are fair housing barriers to the development of affordable housing; and

viii. Whether the permitting process poses a greater, comparable, or smaller barrier to building housing than do the regulations, such as regarding timeliness and consistency of permitting decisions.

c. HUD’s Regulatory Barriers Clearinghouse (RBC)  (4) was created to document the prevalence of regulatory barriers that influence the cost of affordable housing and offer best practice solutions for their removal. The clearinghouse is an easily searchable electronic database that contains more than 4,800 barriers and solutions and catalogs information that spans all 50 states and more than 460 cities and counties. Best practices have been previously highlighted in a HUD publication called Breakthroughs, which was a bi-monthly e-newsletter accessible where community actors could share their stories about reform strategies that work. Representatives from the housing industry, the National League of Cities, the National Association of Counties, the National Association of Mayors and many other private, public and advocacy groups have contributed to these efforts. HUD’s Office of Policy Development & Research continues to manage the RBC database and staff are developing ideas for how the research community could use the information to conduct regulatory barriers research. For the purpose of this RFI, we ask for recommendations on how best to utilize this important source of information for States, local governments, researchers and policy analysts who are tracking reform activity across the country.”

 


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