December  19,  2007

Planning Board endorses
'affordable' housing law

The Planning Board unanimously recommended enactment of a third version of an 'affordable' housing ordinance. General manager Charles Baker said the Department of Land Use will draft a substitute ordinance which could go before County Council in January.

Following extensive consultation with interested and affected organizations, both public and private; informational meetings and a formal public hearing, the department is "convinced that there is considerable support for an amended ordinance," according to a 20-page analysis presented to the planning board at its meeting on Dec. 18.

Principal among 14 revisions to a second version of the measure, which is now before Council having been introduced by Councilman Penrose Hollins and which was the subject of the public hearing, are:

Limiting the number of 'affordable' dwelling units that can be built off-site to half of the total.

Modifying the provision requiring that units remain affordable for 15 years to exempt Habitat for Humanity and other housing providers already active in the county which participate in recognized national programs with conflicting requirements.

Making it clear that not only the initial purchaser but also subsequent ones are bound by the affordability period.

Allowing developers with already approved plans to revise those plans to include 'affordable' units, and thus become eligible for the related incentives, even if some of the units in the original plan have been built.

Revising the phasing requirement to assure that 'affordable' and 'market-priced' housing be built concurrently while giving the department flexibility to allow variations in the timetable to deal with "unforeseen circumstances."

Excluding up to half of the 'affordable' units in a planned development from any required traffic-impact study.

Left unchanged is a provision requiring that developers who elect to participate in the 'affordable' housing program contribute to a housing trust fund while those not participating do not have to contribute. The county Law Department "concluded an across-the-board contribution requirement is not lawful because there is no corresponding benefit," the analysis said. Participants benefit from such incentives as increased density and more liberal development-code requirements.

When Planning Board chairman Victor Singer questioned including in the ordinance a "funding mechanism" for a housing trust fund which does not yet exist, Baker explained that legislation creating the fund is being prepared and might be ready in time to be enacted concurrently with the 'affordable' housing ordinance.

Beyond that, he added, both of those measures are elements of a broad housing strategy being pursued by County Executive Christopher Coons's administration.

The department analysis, which included its recommendation that Council enact the substitute ordinance it will receive, took advantage of an opportunity to offer a qualified defense of the 10-year-old Unified Development Code, which has recently been criticized for encouraging suburban sprawl and near-exclusive development of high-priced housing.

"The notion that the [development code] has been the sole culprit for the lack of new 'affordable' dwelling units being constructed in recent years is a false premise, but it certainly has not helped the situation," the analysis said.

The proposed 'affordable' housing ordinance would amend the development code.

When considering amendments, Council is not obligated to follow the Planning Board and land use department recommendations, but they carry considerable weight, especially when the former is unanimous.

As Delaforum previously reported, Hollins indicated before the public hearing that he expected what he referred to as additional compromises in an already compromised piece of legislation. The councilman has made it clear that he would much prefer a mandatory 'affordable' housing law, but has yielded on that point in order to obtain passage of what may end up being a first step toward that end.

As it now stands, the proposed ordinance requires the land use department to closely monitor the effectiveness of the program and report annually to Council. If the stated goal of having at least 20% of new housing priced within the means of families with moderate incomes is not met, changes in the law could be made.

The department's analysis said that, although  its research "determined that a mandatory program was generally more successful [elsewhere], a voluntary, incentive-based program could be successful in our situation." It did not elaborate on that point.

Board member Sandra Anderson said allowing half of the 'affordable' -- or workforce -- housing units to be built in a location other than the one covered by the development plan could result in economically-segregated communities if developers got together and decided to build all their off-site units in the same place.

Baker said that kind of cooperation is out of character in the homebuilding business, but, even so, requiring that at least half of the units be built on-site was intended to curb such abuse. The previous versions would have allowed all of the 'affordable' units to be built off-site.

Singer said it will be difficult to enforce the continued-affordability provision even though the properties would be deed-restricted to require it. Given the number of papers to be signed at property settlements and the complexity of their contents, he said it is commonplace for buyers not to be aware of deed restrictions although real estate agents and lawyers are professionally obligated to inform their clients of such.

"We ought to operate on the premise that [they] are going to follow the law," Baker said. But, he added, "it happens all the time [that] people don't read the contracts they are signing" and then look for help from government to bail them out of unexpected consequences.

Since violations are not likely to show up until a deed is recorded after the transaction is completed, Singer said there should be a provision to void any sale that violates the affordability requirement. The requirement should be strictly enforced "even though it requires putting somebody through the wringer," Singer said.

The proposed ordinance would require any seller to forfeit any profit from selling beyond an adjusted 'affordable' price to the housing trust fund during the first 15 years after the initial purchase.

Board member Mark Weinberg said he is concerned that the ordinance could result in a developer taking advantage of additional density and other incentives to construct a totally 'workforce' community as an infill project in the midst of an already developed area.

Baker said any such proposal will have to comply with existing zoning standards including compatibility with neighboring communities. "We will avoid burdening existing neighborhoods with something that doesn't fit," he said.

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