Wednesday, August 12, 2020

A potential fix to conditional review of multi-family housing?

At yesterday's Rocky Mountain Land Use Institute RoundUp on housing, my small group breakout session with Erin Clark got to talking about the standards on which multi-family housing decisions get made.  After that call, I was thinking if there might be a way to tinker with the basic structure of entitlement elements that would shift the presumption in favor of multi-family housing and lessen the NIMBY effect.  I realize some will consider this an incidental fix, but consider...

Most multi-family housing units require some kind of discretionary permit, usually a conditional use permit (CUP).  In most states, the statute authorizing such permits requires that a CUP be "in compliance with the comprehensive plan," or similar language.  While I am all for comp planning, the reality is that this is the legal window through which the usual assaults on multi-family housing--traffic and noise--enter the fray, and the decisionmaking.  

My proposal is this:  for multi-family housing, local governments establish certain additional standards relative to issuance of CUPs.  Many local governments do this routinely for anything from drive-thrus to chain stores name it.  Why couldn't there be special presumptions that apply to multi-family housing and what "compliance with the comp plan" means?  For instance, a city could adopt something like the following as presumptions of compliance:

Multi-family projects are presumed to be in compliance with the comprehensive plan if the project affirmatively furthers location choices for low income individuals in an underserved location.  Non-compliance with the comprehensive plan must be shown by clear and convincing evidence through expert testimony.  This applies, but is not limited to, effects of a multi-family project on traffic and noise.

Again, I realize that this will not solve the housing problem in America.  But I do think that presumptions like these related to multi-family housing could make it easier for decisionmakers to evaluate--and approve--multi-family units even in the face of NIMBY opposition.  It also has the virtue of working within the existing system that most local governments will not have the money to change significantly for the near future.

I'd be curious folks' thoughts.

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