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DOUBLE WHAMMY

April 22, 2022 by admin
Policy/Legislative

Disclaimer: The views and opinions expressed in this article are those of the author and do not necessarily reflect the views or positions of APAUT.

Wilf Sommerkorn’s take on the latest in Utah land-use politics and law

https://utahlanduse.org/blog/

DOUBLE WHAMMY

April 22, 2022

Yesterday saw two hits in the housing affordability saga in Utah.  First was a poll in the Deseret News about what Utahns think should be done about housing affordability.  Here’s the very mixed results:

  • Sixteen percent of Utahns said zoning restrictions should be adjusted to make it easier to rent out parts of their home, like their basements or spare rooms. (The Utah Legislature did pass a law aimed at this in 2021, HB82, which prohibits cities from restricting certain accessory dwelling units with some exceptions.)
  • On the other hand, 15% say state and local governments should do nothing and let the free market play out. The most support for this came from those who identified as “very conservative,” of which 23% picked “do nothing.”
  • Another 15% say zoning restrictions should be adjusted for manufactured housing, tiny homes and other nonconventional construction methods in order to build homes more quickly.
  • Another 15% said Utah should expand funding to subsidize low-income housing. (The Utah Legislature over the past two years has approved a record amount of funding for housing and homelessness programs, including about $50 million in 2021 and another $70 million this year, though housing advocates have said it’s still far from enough.)
  • What about rent control? That’s an option favored by 13%.
  • As for more high-density, high-rise residential development, 7% picked that option.
  • Only 5% said state and local government should adjust zoning restrictions to allow for quicker construction.
  • Thirteen percent answered “other.”

It was interesting to see what the responses were from some of the political players in this crisis  Cameron Diehl of the League noted that many of the factors causing the run-up in prices are beyond the control of the local government, and besides, there have been a record number of new housing units permitted and under construction the last couple of years, so how much of this is really caused by local regulations?  Senate President Stuart Adams, a developer by profession,  noted:

over-subsidizing housing “actually create(s) more demand, which makes prices rise.” So the solution, he said, is to rely “on the free market” while also upping inventory to relieve demand pressures, whether that’s letting more people rent out their basements or helping developers get their subdivisions approved faster.

“Trying to streamline the regulatory process, I support. Trying to reduce the regulations, I support. And it sounds to me like the public’s really keyed in on that,”

Read the entire story on the poll at https://www.deseret.com/utah/2022/4/21/23032120/housing-market-utah-prices-rent-control-free-market-solutions-predictions

The second shot, and a big blow, was the announcement by Rep. Steve Waldrip that he’s withdrawing from his re-election bid to his Utah House seat.  Waldrip has become the go-to guy the last couple of years in the legislature on land use legislation, having been the primary sponsor of housing and land use bills.  Steve, a former planning commissioner in Weber County, really took the time to learn about land use issues and potential solutions.  He was also serving as co-chair of the Commission on Housing Affordability.  His stated reason for pulling out of the race is that he thinks he can be more effective on the housing issue

“because I have a unique opportunity over the next few years to make a significant impact in housing availability and affordability with the social benefit investment fund I co-founded. The Rocky Mountain Homes Fund addresses a huge need in our state and will require all of my time and attention to manage and direct the current and projected growth,”

But I can’t help but think another factor was the primary battle he was facing from candidates who were attacking him on his moderate positions on several issues, including on housing.  From one of his opponents:

Among other things, (Kyle) cited the incumbent’s apparent support for measures that promote high-density housing.

Steve will be sorely missed!  You can read the sad news here https://www.standard.net/news/local/2022/apr/21/waldrip-drops-out-2-gopers-remain-in-race-for-district-8-utah-house-post/

 

 

WHAT HATH HE WROUGHT?

April 21, 2022

When we get to a certain point in life, we have a tendency to look back and see what maybe we left behind, what did we help make better or mess up?  Well, I get to wonder about mine now. A new report out listing the most unaffordable counties in the country for housing includes in the top ten the two counties I worked my entire career in – Davis and Salt Lake!  Yeow!

Here’s an excerpt:

The report says Davis County has a home appreciation price of 34.1% in the last three years. The homes in Davis County cost 73% of one’s income. The median income of a Davis County resident is $36,597 with a median home price of $428, 765.

Salt Lake County has a 38.7% home price appreciation in the last three years with homes costing as much as 77% of a resident’s income. The median home price in Salt Lake County is $449, 365.

Anyone still doubting there’s a housing affordability crisis in our pretty, great state?

You can see the entire report here  https://www.moneygeek.com/mortgage/analysis/unaffordable-us-counties-for-homeownership/

 

LAND FOR HOMES

April 20, 2022

The Deseret News editorial board expressed its support for the recent proposal by Sen. Mike Lee, Mitt Romney, and others to make federal land available for private housing development as a solution to the housing affordability crisis

Opinion: Is this a solution to Utah’s housing crunch?

Utah Sen. Mike Lee has a bill that would let state and local governments buy federal land at a discount, to be used for the construction of affordable housing. It is, he and others say, a way to help alleviate a housing shortage that has been especially vexing in the American West, driving a surge in home prices to unprecedented, and largely unaffordable, levels.

As solutions go, this one is creative and novel, and it is worthy of serious consideration. It has the support of Utah’s other senator, Mitt Romney, and a host of local government officials in Utah. It would not affect national monuments or other sensitive public lands, and so it should not fuel long-standing political feuds over those public lands.

It would be just one tool. It would not, on its own, solve a shortage the Kem C. Gardner Public Policy Center has estimated at about 44,500 housing units in Utah, alone. But it is an idea. It’s worth considering. And it hopefully will stimulate other potential solutions.

About two-thirds of Utah is federally owned, but much of that is in rural or undeveloped areas. Salt Lake County has relatively little of it that isn’t already designated as forest or recreation land.

Along the Wasatch Front, the housing shortage could be impacted more by zoning ordinances or, as the Utah Foundation put it, the construction of more “middle housing.” This refers to “a variety of multifamily housing options focusing on neighborhood walkability and being affordable to various income levels,” a report by the nonprofit public policy organization said. This could include fourplexes, duplexes, townhomes and other multi-unit construction.

But the problem is much more complicated than that. It has to do with supply shortages exacerbated by the pandemic, and with a shortage of construction workers.

As a Deseret News report late last year made clear, the West’s housing shortage predates the pandemic by more than a decade, its roots running back to the great recession that began around 2008, when real estate prices temporarily crashed and construction halted.

As Bloomberg noted, the housing market didn’t catch up with demand during the 2010s, a time during which about half as many homes were built as during the previous decade. The demand built up a steadily rising logjam in available homes, and that was especially true in Utah, which had the fastest-growing population in the nation during that decade.

The pandemic exacerbated this problem, not only with supply chain and labor problems, but with changing preferences. Many people began to work from home, creating a demand for houses that would accommodate such a lifestyle.

Now, with the Federal Reserve signaling it will continue to raise interest rates, some experts believe fewer people will enter the housing market. But in high-demand states such as Utah, that might not reduce demand.

None of this should keep Congress from considering the bill Lee is sponsoring. As the Deseret News reported this week, officials in rural areas and emerging Utah cities see it as an important way to open land to housing development.

“If this act is passed, it would allow counties like Uintah County to provide opportunities for affordable housing to be built,” said Steve Evans, Vernal Area Chamber of Commerce Legislative Committee chairman. The St. George and Cedar City areas also could benefit from it. Significantly, the National Association of Counties endorses the bill.

And the bill would come with rules. It would require that at least 85% of the federal land purchased be used for residential housing and related community needs, and that the density be quarter-acre lots at the most. Those community needs would include schools, churches, grocery stores, hospitals and health clinics. Also, no more than 15% of property could be used for commercial purposes.

Those parameters ought to satisfy worries that this might be used to subsidize homes for the very rich.

David Garbett, an advocate and former candidate for Salt Lake mayor has criticized the bill, saying Lee ought to instead work to facilitate federal land swaps with state institutional trust lands, something he told KSL the senator could do without new legislation.

Indeed, that also is a suggestion worthy of consideration.

The West’s housing shortage is complex and difficult. It needs all the creative solutions leaders can muster.

https://www.deseret.com/opinion/2022/4/12/23021011/utah-west-housing-shortage-home-prices-buy-federal-land-development-one-tool-affordable

 

 

AN OPENING IN THE WALL?

April 18, 2022

Just saw a survey by Zillow about how people of all ages and backgrounds have generally positive feelings about missing middle housing, even in predominantly single-family neighborhoods and among older homeowners.  Here’s a couple of interesting quotes from the survey report:

There is broad support to allow accessory dwelling units, duplexes and triplexes in residential neighborhoods, according to a new Zillow survey covering 26 U.S. metro areas, many of which are struggling with housing affordability. A clear majority of homeowners surveyed (73%) voiced support for at least one of these “modest densification” options, and support was higher among renters (84%).

Across the 26 metro areas Zillow surveyed, residents were more likely to support allowing accessory dwelling units (69% supported versus 23% opposed) and duplexes and triplexes (61% supported versus 31% opposed) in every single metro.

When asked about the impact that duplexes, triplexes and small/medium apartment buildings would have on the availability of affordable housing options, about two-thirds of respondents said that duplexes/triplexes (67%) and small/medium apartment buildings (68%) would have a positive impact…, (but) homeowners revealed a much larger, 15-point gap: 63% said allowing small/medium apartment buildings would have a positive impact on affordability, while only 48% agreed they would support apartment construction in their neighborhood.

All this reminded me of a recent rezoning attempt in a single-family neighborhood in Kaysville, where I serve on the Planning Commission.  I think it is maybe indicative of some of the evolving attitudes of residents, particularly homeowners, about “gentle” increases in density and housing styles.  This is a single anecdote so it may be a stretch to say this is a trend, but if the Zillow survey is any indication, maybe not.

The property proposed for rezone was a half acre located on the corner of the intersection of a subdivision street with the busy Main Street (a UDOT collector road, with Davis High School right across the street).  The property had been used for some time as a community garden, allowed by the prior property owners, but a new owner purchased the property and sought a rezone to allow for the construction of 6-8 townhomes.  The existing residential zoning would allow for three homes on the property.  At the Planning Commission hearing on the proposed rezone, the expected usual concerns and opposition were expressed by the residents of the adjacent single-family neighborhood.

After the public comments, during discussion by the PC members, it was pointed out that a rezone from single-family to R-2 zoning would allow for the construction of three duplexes on the property, which would be about the same number of units as those sought by the applicant, but more of a single-family home character than the townhouses would be (it was later pointed out that a similar result could be achieved through approval of a conditional use for twin homes under the existing zoning).  Either way, there could be more units provided, and the character of the neighborhood essentially maintained.  Several residents came up during the public comment portion of the meeting later and expressed their willingness to support such an outcome rather than having townhomes built.  The matter was tabled to allow for further discussion with the applicant by staff, and for the applicant to have some discussions with neighborhood residents.  Ultimately, the applicant chose to pursue the original rezoning request.  The Planning Commission voted to recommend approval of the request along with a development agreement that would have design and parking requirements beyond what would normally be required under just a straight rezone.

When the matter went before the city council, the residents were there again in force to opposed the rezone as proposed.  A couple of council members mentioned that they had heard about the previous discussions about duplexes or twin homes and wondered why that had not moved forward.  In the end, the council denied the rezone request.

Given what was just pointed out in the Zillow survey, this ultimate outcome was probably not a surprise.  But it seems that the door may be open for more “missing middle” type development, even in single-family neighborhoods, as seemed to have been the case in this rezone story.  Something worth considering.  This may be a way to increase the number of badly needed housing units in our communities, at least to some degree.  Which is better than nothing!

 

COULD THIS BE US? BEWARE!

April 15, 2022

I’m going to do something I only rarely try to do, which is post the complete text of someone else’s opinion piece.  This one is worth doing.  It is written by Diana Ionescu, editor of the website Planetizen.  She writes about what I feel to be one of the main issues of the day, zoning reform as a solution to housing affordability.  She writes about what is happening in California, and while I don’t believe that we here in our great state of Utah will go entirely down the same road as the Golden State has, we have plenty of similarities.  Let’s just say that I am posting her entire piece as an object lesson – be careful, this could be us if we don’t try to do things a little differently.  We keep saying we don’t want to be like California, and yet… we keep doing many of the same things!  We need to keep our eyes open and be willing to take a different path, but also realize there are things that can be instructive for us here because of how they have played out there – don’t ignore or underestimate them!

 

California Cities Could Face a Zoning Reckoning

As the state toughens rules related to its housing allocation process, cities statewide may finally be forced to overhaul their zoning codes to ensure an adequate supply of housing at all affordability levels.

In a series of somewhat alarmist headlines, writers commenting on California’s Regional Housing Needs Assessment proclaim, “A wall of skyscrapers along Ocean Beach? It could happen if S.F. doesn’t stop bungling its planning process” and “Skyscrapers in Davis? Probably Not, but HCD Denial Is Not Nothing.”

To be clear, no one is seriously proposing building high-rises in either of these places. So where do these headlines come from?

The Regional Housing Needs Assessment

Calculated by the state of California every eight years since its inception in 1969, the Regional Housing Needs Assessment (RHNA) dictates how much new housing each city in the state must build at various affordability levels in order to meet its projected housing need. The assessment is agreed upon by the Department of Housing and Community Development (HCD), which uses demographic data and their own formula to calculate housing needs, and each region’s Council of Governments (COG). The COGs are then tasked with distributing the housing needs among their participant jurisdictions. The process is based on the belief that local governments can adopt policies and regulations that promote development and make it easy for private builders to create an adequate supply of housing and is at the heart of California housing policy.

As part of their seven-part general plan, cities are required to provide a housing element that will accommodate the housing units allocated to them. To accomplish this, cities can rezone underused parcels to increase allowable density and implement policies that encourage development. Housing elements are also required to affirmatively further fair housing, a requirement unique to California. Cities are tasked with “taking meaningful actions to” fight discrimination in housing and reduce racial and economic segregation. In past years, many city proposals included unrealistic projections and labeled undevelopable sites as potential housing sites, which the state approved without question. A 2017 Los Angeles Times article asserts that during the last cycle, California only built less than half of the number of homes called for by the RHNA.

How is this cycle different?

During this sixth update cycle, the state scrutinized the plans more closely, rejecting housing elements from several cities as inadequate and sending them back to the drawing board. This is largely due to stricter requirements and larger allocations. For example, the state can now ask cities to reduce site capacity rather than operate under the unrealistic assumption that every developable parcel will be developed.

Southern California, where deadlines to submit housing elements are earlier than in the northern part of the state, saw just seven of 196 housing plans approved right away, with the rest sent back to the cities. Rejections include Los AngelesBeverly HillsSanta Monica, and Redondo Beach, which are all required to make revisions before their plans could be approved. According to a tweet from Abundant Housing LA, HCD rejected Beverly Hills’ plan citing “a lack of substantial evidence on the discontinuation of existing uses, an unrealistically high ADU production forecast, & a lack of commitment to constraint removal.” In their response letter to the city, the agency stated that Beverly Hills did not appropriately address their strategy for affirmatively furthering fair housing, did not provide an analysis of environmental and infrastructure constraints that could hinder development on identified sites, and did not identify a timeline for implementing programs to assist low-income households, among other issues. Similarly, HCD raised concerns about Santa Monica’s projections and their weak commitment to fostering inclusivity in single-family zoned neighborhoods.

Observers believe that San Francisco, which was allocated 82,000 units of housing by the RHNA, will likely have to make revisions. In its draft housing element, city officials claim that the city could build the required housing units called for in the next eight years without changing existing zoning, an unrealistic expectation given the slow rate of recent construction and the opposition constantly faced by projects planned for higher-income neighborhoods. An opinion piece by David Broockman and Robert Fruchtman points out that the city would have to build at four times its recent rate to stay on track with housing goals, a speed that can’t happen without major changes in planning and zoning regulations.

In the case of Davis, the state accused the city of not doing enough to promote “fair housing” in its proposed housing element. In their explanation of the rejection of Davis’ housing element, HCD wrote, “The revised element identifies a shortfall of adequate sites to accommodate the regional housing need for lower-income households. It also identifies candidate sites that will be rezoned within the first three years of the planning period.” HCD pointed out other concerns, such as the city’s admission that not enough vacant land is zoned appropriately to meet the city’s housing needs and that a city ordinance that calls for voter approval of zoning changes hinders development of new housing.

Zoning limbo

In addition to losing access to billions in state and federal affordable housing funds, cities have no power to use zoning regulations to reject projects that are 20 percent low-income or 100 percent moderate-income while their housing element is out of compliance. While developers would still have to comply with other regulations such as parking requirements, they would theoretically have more flexibility in height and density.

Without HCD approval, cities are essentially in a state of limbo—they can’t use their existing zoning codes or general plans to reject projects. Theoretically, a developer could build an outsized skyscraper anywhere in Davis, Redondo Beach, Beverly Hills or any other city whose housing element has been rejected by HCD. In other words, without an approved housing element, cities cannot regulate density. Further, if applications are filed before the housing element is brought into compliance, cities will be bound by the regulations in place at the time of the application’s filing.

Ultimately, this potential to develop outsized buildings probably won’t become a reality due to the many legal and financial challenges such a proposal would face. Most developers, often dependent on the goodwill of politicians to have their projects approved, have little interest in testing the waters and potentially poisoning the well for future projects. According to an article by David Greenwald, “You would probably need an out-of-town developer with deep pockets (for a lot of reasons) to wade into the risk involved in even proposing such a beast.” But the rejection of housing elements can lead to delays or kill badly needed affordable housing projects. The widespread resistance from cities to state housing mandates points to a larger problem: now that the state is taking its housing crisis more seriously, the effort to develop realistic housing elements that truly address housing needs faces challenges on many fronts as cities cling to the perceived sanctity of local control and NIMBY groups push back on efforts to build more affordable and sustainable neighborhoods.

https://www.planetizen.com/blogs/116842-california-cities-could-face-zoning-reckoning

 

THE LONG AND SHORT OF IT

April 14, 2022

With the end of the APA Utah Spring Conference in Kanab just a couple of weeks ago, this recent news story about the housing problems in Kanab, exacerbated by short-term rentals (STRs), again points out the never-ending debate over STRs and what to do about them.

The question of whether and how to allow local governments to regulate STRs has been kicking around on Capitol Hill for several years now.  The STR industry attempted in 2017 to get the legislature to pass a bill that would prohibit local regulation of STRs, but that effort predictably ran into a buzzsaw of local government officials who were getting earfuls from their residents about STRs in their neighborhoods.  In the end, the bill that was passed only prohibited enforcement of STR regulations with the sole evidence being advertising on websites.

Meanwhile, the concerns about STRs mushroomed all over the state: SpringdaleSt. George area, even on the Wasatch Front.  The issue is one that is prominent not just here, but around the nation as well, and in the STR industry.

Debate over how to regulate STRs continues and was fanned again with the passage of the ADU bill last year.  Many jurisdictions were concerned that ADUs would be turned into STRs, as evidenced in this story about a meeting between local officials and legislators.  This led to the filing of two bills during this year’s legislative session, HB372 – Short-Term Property Rental Amendments and HB407 – Short-Term Rental Enforcement Amendments.  Neither bill passed, however.  The big housing bill, HB462, originally had a provision that would have done away with this restriction, but it was ultimately removed from the bill.

The issue continues to grow.  Hurricane city just took action, a Cedar City ordinance change to allow ADUs led citizens to express fears they would be rented out, and is debated even in Logan.

This ain’t over, folks.  Watch for more on this.

 

CAN YOU DIG IT?

April 13, 2022

Remember the gravel pit wars that were taking place with regularity a few years ago?  As construction around the state boomed due to general growth and big projects like the airport renovation, new state prison, highway expansions, and others, the battles were cropping up all over, like Tooele CountyWayne CountyWillard, and Draper.  “Discussions” (more accurately, arguments) were frequent and intense in land use task force meetings, with little agreement being reached.  Ultimately, in the 2019 legislative session, a bill was passed which created a new section in LUDMA titled Section 9 – Vested Critical Infrastructure Materials Operations, which in essence created a right for existing sand a gravel operations (needed for construction of new buildings and infrastructure) to continue (kind of like a non-conforming right) and set some parameters for future expansion.  It was sort of a truce in the battle, with the understanding that “better” solutions would be sought in subsequent years.  Well, here we are in 2022 and nothing more has happened.

And now this section is being invoked to allow for expansion of an existing (this is in dispute – county officials contend there was never any mining activity on the site to begin with) limestone quarry in Parley’s Canyon.  The whole issue was unveiled when the property owner published a public notice required for a state mining permit.  Up to that point, no one in local government (i.e. Salt Lake County) had heard anything about a proposal to quarry at this location.  That kicked off a reaction by citizens and county officials to try to put regulations in place to prohibit or restrict such an operation.

This even became the subject of a bill during this year’s legislative session that would have changed state rules for such an operation so that it would have to follow more strict and broader state permitting rules.  The bill did not pass, however.

The owners are now invoking this LUDMA Section 9 to claim a right to mine and to expand.

You never know… what our legislative bills may ultimately lead to!

 

YOU KEEP USING THAT WORD…

April 12, 2022

In the legislative session just completed, one of the land use tools passed was inclusionary zoning (IZ). IZ had been talked about for some time as a way to address housing affordability, and is used in some high-cost communities like Park City and Summit County in an attempt to provide for housing that can be accessible to the needed local workforce that cannot afford the high resort-community prices (like teachers, police officers, restaurant workers, etc.).  The section included in HB303 allows for IZ but only through providing an incentive for the builder (usually this means increased density) and with the agreement of the builder.  I’ve argued that, while it’s nice to have this provision now in state code, the requirements really make it something that local governments could have done anyway under a development agreement, so I’m not sure what this provision really gives in the way of a new tool.

At the legislative update session held by the League and APA Utah on March 31, a comment was made when the IZ provision was brought up that this would likely see more action in upcoming legislative discussions.

But IZ is likely not all that some may hope it is as a way to address the housing affordability issue.  A recent opinion piece in Greater Greater Washington by Tom Coale, a land use attorney in Maryland, points out some of the drawbacks and limitations of IZ as a way to address housing affordability.  He says:

Inclusionary zoning, however, was not created for the purposes of meeting affordable housing needs. Instead, IZ helps ensure that new development, in which units are commonly the most expensive on the market and draw high-income purchasers, is not made up of exclusively wealthy families. But when efforts to integrate such communities take the place of meaningful efforts to create affordable housing, we all lose.

Inclusionary zoning is a tool for socioeconomic integration. Due to the fact that new development often comes with the highest price tags, policy-makers who support inclusionary zoning policies do so with an eye toward ensuring there are not pockets of extreme wealth situated amongst relative poverty.

(IZ is) inefficient. Even the most ambitious inclusionary zoning requirement of 20% will only provide two subsidized units for every eight market-rate units. As the cost of market-rate units increase, the disparity between those who can afford new housing and those who cannot … (is) resulting in a lopsided barbell income distribution whereby 80% of the housing is for the “very rich” and 20% of the housing goes to the “relatively poor”.

Second, inclusionary zoning policies offload a societal obligation of providing affordable housing from the body politic to private interests. In order to tackle the gaping deficit of units for low-income families, state and federal governments will need to dedicate resources to build housing and subsidize rents. Inclusionary zoning allows the fiction that our affordable housing needs can be met by developer mandates. This crisis will not be solved by a for-profit industry with a relative intolerance for profit-losing requirements. Governments can and should do more.

Finally, and most importantly, inclusionary zoning requirements raise housing prices on the whole. All regulatory burdens, whether they be forest conservation or design requirements, operate like a tax that is passed through to the home-buyer. The costs of inclusionary zoning compliance will be borne by the market rate purchaser, not the developer.

(I)nclusionary zoning should be viewed for what it is – a mechanism for integrating new development, not a tool to generate enough affordable housing to meet our communities’ needs.

Since it looks like we are not done with the concept of IZ in Utah land use codes, this piece is worth a look.

HOME, HOME ON THE (FED) RANGE

April 11, 2022

Well, it looks like our U.S. senators are getting in on the housing affordability crisis.  Actually, this is a pretty pro-active approach – make federal land available for purchase by state and local governments to be used exclusively for housing.  There are some parameters on it to make it for “affordable” housing, however that winds up being defined.  A couple of clips from the news story:

The Utah Republican introduced legislation Friday to allow a state or local government to buy parcels of federal land at a reduced price to address housing supply and affordability in their areas. The proposal would require the property be used for housing, subject to a density requirement, and protects against development of expensive second homes.

The bill requires that at least 85% of the acquired land be used for residential housing and related community needs at a density not less than one home per quarter-acre. Community needs would include schools, churches, grocery stores, hospitals and health clinics. Also, no more than 15% of property could be used for commercial purposes.

Say what you will, but it’s at least an effort to try and address the problem.  Better than not doing anything!

 

WELL, THE WAY I SEE IT…

April 8, 2022

Here’s an interesting piece on NPR a few days ago about the housing shortage and its causes.  A lot is attributed to cost of materials, and loss of workforce during the great recession and no one coming back in to refill those jobs.  It also has an interesting perspective on local land use regulation’s role, and how it’s skewing things:

Overly restrictive zoning is a big problem nationally, says Robert Dietz, the chief economist with the National Association of Home Builders. “In certain neighborhoods you simply cannot build townhouses.”

“You have to build single family units on lots that are bigger than the market wants,” Dietz says. “This is not a free market choice. It’s a government-imposed rule.”

He says that in many parts of the country, the classic NIMBY (not in my back yard) opposition stops higher-density units from being built. Existing homeowners who don’t want more traffic and more homes in their neighborhood keep what he says are outdated, exclusionary zoning rules in place.

So to make a profit, builders like Claus are left doing renovations or tear downs — buying an older home, knocking it down, and building a bigger, more expensive new one.

“We are seeing a lot of knockdowns,” Claus says. “But it doesn’t add to the housing stock. You’re replacing something, you’re not adding to it, so the net effect isn’t the best.”

Changes in zoning can make a big difference. Some states and towns have been changing the rules to allow in-law rental apartments to be built onto existing houses. These are called accessory dwelling units, or ADUs.

“Twenty percent of remodelers indicate in the last year they’ve undertaken an ADU project, and the typical one can cost anywhere between $100,000 and $200,000,” Dietz says.

That’s good for the supply of rental housing, which is also very tight. But Dietz says we also need a lot more homes for people to buy.

“That could be a townhouse,” he says. “It could be a single family detached home on a small lot that’s roughly 1,800 to 2,100 square feet, that’s appropriate for effectively a newly married couple that’s moving out of their first apartment and is getting into their their first rung of homeownership.”

Right now, Claus says that because of the restrictive zoning rules, he doesn’t have any new home projects lined up that will put a house like that in a place there wasn’t a home already.

Worth the read to get another perspective.

 

WAIT… WHAT?  REALLY? OKAY THEN, I’LL TAKE IT!

April 6, 2022

I saw something in the Trib the other day that kind of made me do a double take – am I really seeing that?

It’s a call by a very conservative legislator for more – planning and regulation!  What? I must have been mistaken!  But no, it’s right there, in print.

The legislator is Rep. Phil Lyman, who hasn’t been exactly friendly with “lefty” causes like planning and regulation in general.  But just a few days ago, this piece from him appeared in the Trib pointing out the risks to urban development in wildland areas, most notably to the wildfire potential in Salt Lake County’s foothills and mountains.  Now why he is calling this out just in Salt Lake County, while he is from about as far away and as un-urban an area as can be (Blanding), is an interesting sidenote.  But nonetheless, it’s hard to argue with what he’s encouraging.  Here’s the entire piece:

According to recent news reports, the Outdoor Retailer (OR) show is returning to Utah. This, of course, is good news for the outdoor industry and the state of Utah.

According to Marisa Nicholson, Outdoor Retailer Senior Vice President & Show Director, OR has “a strong relationship with Salt Lake City and a committed partner in Mayor Erin Mendenhall, whose values align with ours.”

Both Salt Lake City Mayor Mendenhall and Salt Lake County Mayor Wilson enthusiastically welcomed OR back to Salt Lake, touting the city and county’s environmental stewardship.

Wilson proudly proclaimed, “Salt Lake County has led in environmental protection and conservation.” While Mendenhall announced, “We share the same enthusiasm, appreciation, and reverence for these great natural assets … we’re uniting our momentum to make change.”

These leaders’ enthusiastic commitment to environmental stewardship is commendable.

Might I suggest that Ms. Nicholson, along with Mayors Wilson and Mendenhall, start with Salt Lake County’s east bench and the Salt Lake City controlled Wasatch Canyons as they channel their unity and momentum to “make change”?

According to The Utah State Hazard Mitigation Plan, 2019, Section 11.2 Table 4, page 259, Salt Lake County leads Utah with 60% percent of its lands at high risk of wildfires.

A recent report places Utah at the top of several western states for homes at risk of wildfires. As Salt Lake County leads Utah in high-risk wildfire lands, does this place Salt Lake County as one of the highest in the nation for wildfire danger?

Unfortunately, not only are thousands of homes, multiple ski resorts and untold outdoor recreation guests in grave danger of raging wildfires, but so are Salt Lake City’s precious watersheds. These vital lands, nestled in the heart of some of the nation’s most extreme wildfire danger, provide culinary water to hundreds of thousands of Salt Lake County and City residents.

A recent report published by the American Geophysical Union says, “Wildfires have well-documented effects on the quality of surface waters, and although wildfires can destroy forest ecosystems within days, changes in DOM (Dissolved organic matter) quantity and composition can persist in burned landscapes for decades.”

Salt Lake County has its land-use authority, a General Plan and its Resource Management Plan to address forest health and implement Best Management Practices. In addition, Salt Lake City has the enormous power of “Extra-Territorial Jurisdiction”, which was granted them by the Utah Legislature over 100 years ago, to protect its watersheds.

Between Salt Lake County, Salt Lake City, their close working relationship with the U.S. Forest Service, and now the exciting collaborative efforts of OR, we look forward to these organizations leading by example to ensure public safety, wildfire prevention and mitigation and healthy watersheds for all.

https://www.sltrib.com/opinion/commentary/2022/04/01/phil-lyman-salt-lake-city/

Wow, who knew?  There’s hope yet…

 

DOING THE SAME THING OVER, AND EXPECTING A DIFFERENT RESULT

April 5, 2022

With spring coming on and having just completed a rather taxing legislative session, it’s getting harder for me to sit down and write up something to post to this blog.  But today we got a skiff of snow and its cold and windy out, so… I have no excuse!

I have seen a couple of interesting pieces recently that have triggered my old brain, which will give me something to pass on.  I’ll do that over the next few days.

First, this piece from a resident of Erda in Tooele County, which has seen a lot of growth-related churn the last couple of years, not the least of which has been an ugly incorporation-annexation faceoff to control new development.  What I find so jarring about this piece is that it sounds just like what I heard early in my career in some Davis County communities (and others on the edge of expanding development) – “we like our rural lifestyle, we don’t want it to change, just keep those dirty rotten developers who only are concerned about money out of our pristine little community.”  Here’s a clip from the piece:

Must quality of life be sacrificed when there’s land to be developed? Are rural Utahns sacrificial lambs for residential high-density development and a concrete jungle with noise, countless trucks and trains coming and going? Are air quality, natural resources, critical bird habitat and wetlands nothing more than nuisances for developers to conquer?

Their bottom line is monetary gain. Rural culture is expendable. As I sit here on my deck, my heart aches for what will be lost, unless everyday Utahns rise to stop it.

So many times in my career have I heard this lament, from community after community next in line for expansion of the urbanized metro area.  And so often, I and my colleagues have tried to say to the officials in these communities, “growth is going to come, you can’t stop it or ignore it, so plan for it!  Put measures in place that will give you a community that will be bigger and denser than what you have now, but that you can live with, that you will like.”  And almost invariably, they don’t.  They make the same mistakes that other communities before them have, by not changing plans and codes to deal with the growth, and then they are just overwhelmed.  It’s kind of disheartening, after this many years of watching this scenario play out over and over again, to see it’s still happening… sigh!

 

YOU WERE SAYING?

April 1, 2022

Despite the many recent explanations for the rising cost of housing, which point to a variety of factors such as construction material costs, construction workforce shortages (driving up wage costs), cost of land, low interest rates (which keeps demand high, though that is changing now), some sources continue to pin the primary blame on local land use regulation (it’s part of the equation, but according to many sources, not necessarily the biggest one).  Case in point – this recent piece from Politico.  Writer Katy O’Donnell says:

The main drivers of rising home prices are “land-use policies and permitting costs and zoning restrictions — that’s very much determined at the local level, and to influence that from the federal level is very difficult,” said Moody’s Analytics chief economist Mark Zandi.  “The housing crisis we’re in has developed over the last decade, and it’s going to take a decade or two of consistent policy to get us out of this.”

But then O’Donnell goes on to write:

Construction costs are up because of higher lumber and energy prices and the labor shortage. What’s more, the construction time for a typical single-family home, usually about 6.5 months, is taking between four and 10 weeks longer now, according to Robert Dietz, chief economist at the National Association of Home Builders.

“That’s likely to continue — not just the higher price of these materials but delays and availability issues,” Dietz said. “What it means is that home price growth is likely to continue despite the fact that mortgage rates are going to go up.”

Dietz said policies to reduce the cost of lumber — which has more than tripled since February 2020 — would make a difference, since 90 percent of new single-family homes are wood-framed. The rise in lumber prices over the last year alone has caused the average price of a new single-family home to increase by $18,600, according to NAHB. But the federal government isn’t helping: The U.S. in November doubled the duties on Canadian softwood lumber, the latest development in a lengthy trade dispute over the import.

And to the argument that local governments are, if not the primary cause, at least one of the main contributors to the housing affordability crisis by making it difficult to build more housing, take a look at the most recent construction report from the University of Utah.  It says, that for 2021:

Breaking the 40,000 mark for the first time, 2021 permitted residential units reached 40,144, increasing by 24.5% over the previous record set in 2020. Single-family activity increased by 12.6 % to 17,528 units. Condo, townhome, and duplex units combined for 7,895 new units, growing by 12.5% compared with 2020, a new record. Apartment activity not only set a record with 14,143 new permitted units, but surpassed its previous record from 2019 by 51.0%, and increased 60.4% from 2020.

Take a look at this chart.  Does that look like construction of housing in Utah is being hindered?  Of course, this may also reflect the fact that demand for housing is at all time highs as well and maybe not enough housing is being built, but looking at this data, it’s increasingly difficult to argue that local regulation is dampening construction of new dwellings.  Just saying…

FOR LOVE OF MY REGION…

March 30, 2022

A just released book from the Lincoln Institute of Land Policy, titled Megaregions and America’s Future got me thinking back to all the writing and talking I did through much of my career on the importance of taking a regional approach to major growth issues.  This piece published just before I retired was only the latest in a list of several that I wrote over my time in land use planning (newspaper archives are not what they used to be so I’m having a hard time finding any of them online anymore!).

But getting local officials to recognize and work together on issues that are best approached on a regional basis is, as I’ve learned over my long career, something that is akin to herding cats. It just ain’t easy, and hardly ever works.  It’s great to have books like the one just out on this topic, but a piece by Governing magazine editor Alan Ehrenhalt several years ago titled The Rise of the Megaregion pointed out some of these grim realities:

It seems pretty clear that the idea of megaregions has moved from obscurity back to the center of debate in a strikingly short time. But I think it’s pertinent to ask the same question people asked when Gottmann first came up with it back in 1957: Other than as an intellectual exercise, does it really serve much purpose? … Can we really expect that these jurisdictions will simply skip the step of cooperating with each other and turn to the larger question of sharing power …? That seems extremely unlikely, to say the least.

My experience has shown this to be the case.  Given the demographic characteristic of our state, some of the actions attempted by our state legislature really are more like regional approaches to growth issues (see previous posts on Authorities, like MIDA, Port Authority, Point of the Mountain, and now Utah Lake).  They have, at best, a mixed track record.

One area Ehrenhalt does see hope and actual action on the regional level, however, is in transportation.

In fact, though, there is one area of public policy for which a megaregional approach really does make sense. That one area is transportation. In an era of rapidly rising gas prices and expensive jet fuel, there is going to be a genuine need for inter-city train travel. … When you think of megaregions not as coherent economic juggernauts but less grandly as transportation corridors, the concept finally begins to look plausible. … Touting megaregions as the key to America’s economic future, even if false, may represent a useful step toward establishing transportation policies that our dense concentrations of light bulbs really do need.

In one of those long-ago opinion pieces I wrote, I quoted Alex Marshall, who in his book How Cities Work wrote,

“ If we want to shape a city, we have to shape its transportation system. … If we want a particular type of place, then we have to look at what kind of transportation system produces that kind of place.  If we want to control or shape the type of development in a metropolitan area, we have to grapple with the highways, rails and other systems that move people around within it.”

Indeed in my past writing, I characterized the regional transportation system as the skeleton on which we hang our regional character – will it be sprawl, or urban villages?  And, as noted in that recent piece I wrote, I think our local and state officials have made some real progress in this area.

Now, can we turn that imperative to another regional-level growth issue – housing affordability?

 

THE PEASANTS ARE REVOLTING…

March 28, 2022

The list of ways for local officials to get around the new zoning reform laws in California just keeps growing, showing the ever-inventive nature of those who do not want to be told what to do.

A Bay area Mercury News story profiles some of the latest moves:

But the NIMBYS are getting creative.

In Woodside, home to some of the Bay Area’s richest new and old-money families, city officials attempted to exempt the entire town from SB9 because it is a habitat for the vulnerable mountain lion of the Santa Cruz range. In Portola Valley, residents have been urging their council to limit SB9 based on fire danger in the hillside community.

And now in Palo Alto, the council could act to list more homes or entire city districts on the historic register to “protect more resources already deemed eligible for state or national registers,” according to a report from the city council.

Under SB9, city buildings and neighborhoods could be protected by being listed on a local historic register or the state and national registers, and Palo Alto city staff are suggesting the city hire consultants to help update and maintain its historic resources inventory. That could include buildings the city wants to exempt from SB9, which staff says “may consist of a single building or structure or a district.”

Hopefully the more collaborative nature of the legislative efforts undertaken here during the just-completed session will not see such shenanigans – but not everyone was happy with the bills that were passed, so we shall see.  A recent letter to the editor in the Trib hints that strategies similar to those described above may not be far off:

The need is there, but allowing fourplexes on existing lots in the (Sugar House) area is frightening. These homes were built in the early 1900s. These historical lots are small with most ranging in size from a 37.5′ frontage to a 50′ frontage. … Parking on these old, narrow streets is also an issue. … A fourplex will generate additional street parking no matter what the regulations are.

 

IF LIFE WERE FAIR…

March 23, 2022

As I was putting together the slides for the upcoming Legislative Update luncheons we do every year following the close of the legislative session, I was reminded by my good friend and colleague Meg Ryan at the League of the requirement in the big housing bill passed this year for the Utah Department of Workforce Services to “develop and submit to the Commission on Housing Affordability a methodology for determining whether a municipality or county is taking sufficient measures to protect and promote moderate income housing in accordance with” the required Moderate Income Housing element in its general plan.  The Department is to submit the proposed methodology by December 1, 2022, and the Commission is to approve the methodology to be used by December 31.

Meg went so far in her proposed language for the slide for the legislative update luncheon to say this would encompass a regional share strategy for MIH.  She relented and noted that the language in the housing bill doesn’t exactly say that (right, it doesn’t, see the quote above), but… .  Meg’s insinuation is not out of line.  CHA co-chair Rep. Steve Waldrip (and sponsor of the housing bill, HB462) has in public meetings opined on the possibility of looking at putting in place some kind of regional “fair share” requirement for communities around the state.  Such a move would not be without precedent.

The best know state-level requirement for housing regional fair share is probably what is know as The Mount Laurel Doctrine in New Jersey.  In 1975 and again in 1983, the New Jersey Supreme Court declared, in a ruling on a suit on this issue, that municipal land use regulations that prevent affordable housing opportunities for low income persons are unconstitutional and ordered all New Jersey municipalities to plan, zone for, and take actions to provide realistic opportunities for their “fair share” of the region’s need for affordable housing.  This was a judicially-imposed requirement as the result of a legal challenge to local land use regulations, but it left a number of questions that needed answering, such as what is a region, what is the level of affordability, what is the expected growth and what constitutes a “fair share?”  In response, in 1985, the New Jersey State Legislature enacted the Fair Housing Act which created an entity to assess the statewide need for affordable housing, allocate that need on a municipal fair share basis, and review and approve municipal plans for implementing their fair share of the obligation.  You can read more of the details of the history and subsequent actions in New Jersey at the Fair Share Housing Center website.  Wikipedia has a good summary of New Jersey’s actions as well.

Since then, a number of other states have enacted or considered enacting similar measures.  And now with the recent explosion in the crisis of housing affordability in general around the country, more states are looking to it as well.  One of the most recent has been Connecticut, which has been quite active in the “zoning reform” effort going on in many states.  The Connecticut measures have a broad coalition of support, including the APA Connecticut Chapter and the Connecticut Conference of Municipalities (equivalent to our League of Cities and Towns).

In addition to the standard zoning reform measure of eliminating exclusive single-family residential zoning, the Connecticut legislature is now considering a “Fair Share Housing” bill.  Under the measure, a town’s share would be based on its wealth, median income compared to other towns in the region, percentage of housing stock that’s multifamily housing, and the poverty rate. Towns would have to come up with plans by Jan. 1, 2025 and develop a new plan every 10 years after that. No locality would be expected to increase its housing stock by more than 20%, the bill states.

As may be expected, some local leaders are opposed to the bill, and for some good reasons.

“… opponents have cited a lack of local control as one of the reasons they don’t support the bill.  Michael Criss, first selectman for Harwinton, said lack of existing water and sewage infrastructure had made it difficult to build more housing in his town. He added that rather than see a new bill passed, he wanted to observe the effects of 8-30j, which passed in 2017.  The law requires towns to approve affordable housing plans every five years. The first plan is due in July.  “There’s existing efforts and proven successful strategies out there,” Criss said. “We’re all trying to do our part to make it affordable to live within the state.”

This good story in the Hartford Courant outlines the back-and-forth now on-going in the Connecticut legislature on the proposed bill.

It will be interesting to see where this goes in Connecticut and in other places, maybe even right here in our own good old, rapidly growing and increasingly unaffordable state!

 

CAN WE AT LEAST BE … CONSISTENT?

March 21, 2022

I’ve taken to calling the just completed legislative session The Year of the General Plan.  The land use legislation that was passed this year was most impactful, I believe, on the changes and additions made to LUDMA Part 4 – General Plans.  As noted in previous posts, the emphasis that has been placed on the general plans of communities to deal with a variety of important issues – housing affordability, water use, and transit/land use – has been quite significant.  It’s actually a lot of faith to place in a document that by it’s very legal status is defined to be as advisory only.

Only it isn’t just advisory only anymore, not with the additions this year.  The moderate income housing element has a provision that the State Department of Workforce Services will monitor the progress of communities in implementing the policies and strategies adopted by communities.  While this is not a requirement that local regulations must be consistent with the adopted plan, it comes close.  The Station Area Plan element, however, has no such ambiguity – it requires that the SAP element be submitted to the relevant Metropolitan Planning Organization for review and certification, and that the element include a 5-year implantation timeline, including for when needed changes to land use regulations will be made.  That’s pretty much a requirement for consistency of local land use regulations and actions with the general plan.

What concerns me is not that we are moving away from the long-held status of Utah being a state in which general plans are non-compulsory (advisory only), but that we are doing so without any overt discussion about this change, how it should best be accomplished, and what it means for the legal landscape for land use practice and law in the state.  There is also the concern that we’re going about this on an ad-hoc basis, with a mix of compulsory and non-compulsory provisions in the code (the “advisory only” language is still in).  I was involved years ago with the looney way the state annexation code was changed, with a mix of strategies and philosophies adopted on a piecemeal basis, and the result was an unholy mess (see the previous posts on annexation).

A quick perusal of the plan consistency literature shows that there are a number of issues that arise in this area, depending on the level of consistency required – “rational basis” consistency of land use regulations; “basic harmony” consistency requirement; “reasonable consistency” requirement; mandatory compatibility with goals and objectives; substantial consistency; all dependent on level of detail in plan policies – and these can be either legislatively or judicially defined, depending on how the state statute reads and challenges brought to it (see Oklahoma Law Review, “Planning Ahead: Consistency with a Comprehensive Land Use Plan,” by Nathan Blackburn; Florida State University Law Review, “Comprehensive Land Use Plans and the Consistency Requirement,” by Kenneth Hart).  There is even a model statute by planning law guru Stuart Meck that could be (should be?) considered (Washing University Journal of Law & Policy, “The Legislative Requirement That Zoning and Land Use Controls Be Consistent with an Independently Adopted Local Comprehensive Plan: A Model Statute”).

We shouldn’t be backing into this kind of change in our land use practice in our fair state – we need to have an upfront discussion about what to do and how to do it.  And it certainly shouldn’t be piecemeal, lest we risk creating another annexation code fiasco.

 

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