Earlier this year, a study commission by the Maryland Department of Housing and Community Development (MDHCD) reported a shortage of 85,000 affordable apartments in Maryland for families and individuals earning less than 30% of median income. This study also noted that an additional 97,200 families and individuals earning less than 50% of median income are expected to move to the state by 2030, which will require a dramatic increase in affordable housing supply over the next 10 years.
Notably, this report focused primarily on subsidized units. The housing affordability crisis is much more widespread and affects every income level. A recent report by Zillow projected that Maryland home prices increased by 14.4% in 2021, which will have a direct impact on rents.
Without action by the state legislature to ensure more housing is built, and fast, we can expect housing conditions to deteriorate as more people try to share smaller units, homelessness increases and businesses leave the state due to their inability to attract talent that can afford an acceptable standard of living.
Unfortunately, housing policy isn’t set in our state capitol, but rather in the county seats and city halls that have been delegated that power by the state. And, in doing so, local leaders accountable to those who already live there must decide whether they will pass laws to benefit those who don’t. By operation, the priorities of the housed are elevated over those of homeless people.
Local authority over housing policy is not unique to Maryland. Recognizing this obstacle to building necessary units, many states have adopted measures to either revoke that authority or place guardrails around it to ensure it’s not abused.
The most direct approach is housing mandates. California has a “Regional Housing Needs Allocation” (RHNA) law that requires localities to meet the housing needs of everyone in their jurisdiction. Regional housing needs are assessed independently by the California Department of Housing and Community Development, which then must be addressed in the “housing element” of a city or county’s general plan. In 2018, California passed “streamlining” legislation that allows affordable housing to be developed automatically in jurisdictions that fall short of their RHNA goals.
New Jersey has the “Mount Laurel doctrine,” which allows developers to sue local governments for their failure to provide realistic opportunity for the production of housing affordable to low- and moderate-income households. This doctrine gets its name from Southern Burlington County NAACP v. Mount Laurel Township case (commonly called Mount Laurel I), in which the plaintiffs challenged the zoning ordinance of Mount Laurel Township, New Jersey, on the grounds that it operated to exclude low and moderate income persons from obtaining housing in the municipality.
Illinois and Connecticut have adopted Affordable Housing Land Use Appeals Procedures, which allow any developer of housing to file an appeal in court when a municipality, through its board or commission, rejects an application to develop affordable housing or approves the application with restrictions that would have a substantially adverse impact on the viability of the project. If less than 10% of that jurisdiction’s housing is subsidized affordable housing, the local government has the burden of proving that the public interest served in rejecting the housing were greater than the need for affordable housing. This legislation has been so successful in creating new units that developers rarely need to utilize it to get projects approved.
Maryland took a significant step forward last year with the passage of legislation that requires all charter counties to include a “housing element” in their general plans, which shall include plans for meeting the county’s housing needs. But without enforceability this legislation will only result in localities recognizing what we already know — we don’t have enough housing. The General Assembly needs to give these local elected officials the same cover that has been enjoyed in California, New Jersey, Illinois and Connecticut when it comes to affordable housing: taking it out of their control.
Tom Coale (Twitter: @hocorising) is a land use and zoning attorney in Ellicott City. He sits on the board of directors for the Baltimore Regional Housing Partnership.