'affordable' housing law
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
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
• 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
• 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
• Excluding up to half of the
'affordable' units in a planned development from any required
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
"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
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
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.