[Federal Register Volume 69, Number 77 (Wednesday, April 21, 2004)]
[Notices]
[Pages 21664-21667]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-8978]



[[Page 21663]]

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Part IV





Department of Housing and Urban Development





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America's Affordable Communities Initiative, HUD's Initiative on 
Removal of Regulatory Barriers: Incentive Criteria on Barrier Removal 
in HUD's FY 2004 Competitive Funding Allocations; Technical Correction 
and Supplemental Information; Notice

  Federal Register / Vol. 69, No. 77 / Wednesday, April 21, 2004 / 
Notices  

[[Page 21664]]


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DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT

[Docket No. FR-4882-N-03]


America's Affordable Communities Initiative, HUD's Initiative on 
Removal of Regulatory Barriers: Incentive Criteria on Barrier Removal 
in HUD's FY 2004 Competitive Funding Allocations; Technical Correction 
and Supplemental Information

AGENCY: Office of the General Counsel, HUD.

ACTION: Notice.

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SUMMARY: In this notice, HUD advises of one correction to its notice 
published on March 22, 2004, which announced HUD's intention to proceed 
to establish in the majority of its Fiscal Year (FY) 2004 notices of 
funding availability (NOFAs), including HUD's SuperNOFA, a policy 
priority for increasing the supply of affordable housing through the 
removal of regulatory barriers to affordable housing. In this notice, 
HUD also responds to additional questions that were raised following 
publication of the March 22, 2004, notice.

FOR FURTHER INFORMATION CONTACT: Camille E. Acevedo, Associate General 
Counsel for Legislation and Regulations, Office of General Counsel, 
Room 10282, Department of Housing and Urban Development, 451 Seventh 
Street, SW., Washington, DC 20410-0500, telephone (202) 708-1793 (this 
is not a toll-free number). Persons with hearing or speech impairments 
may access this number through TTY by calling the toll-free Federal 
Information Relay Service at (800) 877-8339.

SUPPLEMENTARY INFORMATION:

I. Background

    On November 25, 2003 (68 FR 66294), HUD published in the Federal 
Register a notice that announced its proposal to provide incentives to 
regulatory barrier removal in HUD's funding allocations, commencing 
with the FY2004 competitive funding process. HUD proposed in the 
November 2003 notice to establish in the majority of its FY2004 NOFAs, 
including HUD's SuperNOFA, a policy priority for increasing the supply 
of affordable housing through the removal of regulatory barriers 
(referred to, for brevity purposes, as the ``Removal of Regulatory 
Barriers'' policy priority). As a policy priority in HUD's NOFAs (and 
like other policy priorities in HUD NOFAs), higher rating points would 
be available to (1) governmental applicants that are able to 
demonstrate successful efforts in removing regulatory barriers to 
affordable housing, and (2) nongovernmental applicants that are 
associated with jurisdictions that have undertaken successful efforts 
in removing barriers. The proposal advised that for the higher rating 
points to be obtained applicants had to respond to a series of 
evaluative questions that HUD determined were significantly important 
and have broad-based applicability to measure state, local, and tribal 
government efforts at regulatory reform and which serve as good 
``markers'' for effective regulatory reform.
    HUD solicited public comment from prospective applicants of HUD 
funding as well as other interested members of the public. The November 
25, 2003, notice originally called for a public comment deadline of 
December 29, 2003, but HUD extended the deadline to January 12, 2004. 
HUD received 37 public comments in response to the November 2003 
notice.
    On March 22, 2004 (69 FR 13450), HUD published its final notice 
announcing its intention to proceed to establish the Removal of 
Regulatory Barriers policy priority in the majority of its FY2004 
NOFAs. HUD took into consideration the public comments received on the 
November 2003 notice and made several changes to the questionnaire that 
was part of the November 2003 notice. Specifically, PART A of the 
questionnaire was revised to cover 20 questions in contrast to the 13 
questions presented in the November 2003 notice. PART B of the 
questionnaire was revised to cover 15 questions in contrast to the 6 
questions presented in the November 2003 notice. It was determined that 
the greater number of questions would permit more jurisdictions and 
applicants to reach the applicable threshold for receiving one or two 
points available for this policy priority.
    This notice published in today's Federal Register advises of one 
correction to a question in PART A.
    In the November 2003 notice, one of the questions in PART A 
provided that if a community was without impact fees, the community 
could check the ``yes'' column and receive credit toward the receipt of 
points. The March 2004 notice inadvertently omitted that option. 
Therefore, HUD has revised Question 5 in PART A to provide that an 
applicant may check the ``yes'' column if an applicant's jurisdiction 
is without impact fees. This approach is similar to the approach taken 
in Question 3, which addresses zoning. Although Question 7 addresses 
impact fees, it also addresses ``other significant fees'' and it was 
therefore determined that a revision to Question 7 was not necessary.
    This notice also responds to a few questions that have arisen since 
publication of the March 22, 2004, notice. Several members of the 
public asked whether prospective HUD applicants should begin completing 
the questionnaire in the March 2004 notice and submit it to HUD. 
Applicants should not complete the questionnaire in this notice 
published in today's Federal Register or in the earlier March 22, 2004, 
notice. Applicants must wait for the publication of HUD's FY2004 
SuperNOFA, which is expected to publish soon, or publication of 
individual HUD NOFAs to which the Removal of Regulatory Barriers policy 
priority will apply. HUD's SuperNOFA (or an individually published 
NOFA) will contain the questionnaire to be completed, and that 
questionnaire will be submitted as part of the applicant's application 
for the HUD program funds for which the applicant is applying. The 
questionnaire was published in the March 2004 notice, and again in this 
notice, to provide prospective applicants with the opportunity to 
become familiar with the questionnaire and facilitate completion of the 
questionnaire when the SuperNOFA is published.
    Another commenter asked whether the applicant's jurisdiction must 
complete and sign the questionnaire. That is not necessary. The 
questionnaire was developed with the objective that an applicant should 
be able to complete the questionnaire with information about the 
applicant's jurisdiction that is readily available to the public. 
Applicants are welcome to have their jurisdictions complete the 
questionnaire but that is not a requirement.
    Another commenter asked whether each project listed in an 
associated homeless Continuum of Care (CoC) application has to submit a 
questionnaire for each project, or would one questionnaire for the 
whole continuum be sufficient. The commenter also asked that if one 
questionnaire would be sufficient would the applicant submit a 
questionnaire for the local jurisdiction where the CoC applicant 
provides the majority of its services.
    The CoC NOFA, when published as part of HUD's SuperNOFA, will 
provide that only one questionnaire needs to be submitted to obtain the 
up to 2 points available for the Removal of Regulatory Barriers policy 
priority. Therefore, the CoC applicant should submit a questionnaire 
for the local jurisdiction where the majority of its CoC assistance 
will be provided. Although a CoC applicant identifies several projects 
for funding in its application, the score

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provided to a CoC application is for the entire list of projects and 
not for any one individual project. Therefore, the up to 2 points 
available for the Removal of Regulatory Barriers policy priority will 
be available for the entire application, not the individual projects 
identified in the application. This issue will also be addressed in the 
CoC NOFA.
    For the convenience of the reader, the questionnaire, with the 
revised Question 5 in PART A, is repeated in its entirety. Applicants 
wishing to receive points for the Removal of Regulatory Barriers policy 
priority must wait for the publication of HUD's NOFAs to submit their 
response as part of their application for funding assistance. HUD's 
NOFAs will contain form HUD 27300, Questionnaire for HUD's Initiative 
on Removal of Regulatory Barriers.
    Again, HUD anticipates that its FY2004 SuperNOFA as well as other 
individual FY2004 NOFAs will be published soon.

 Part A.--Local Jurisdictions, Counties Exercising Land Use and Building
 Regulatory Authority and Other Applicants Applying for Projects Located
                    in Such Jurisdictions or Counties
                      [Collectively, Jurisdiction]
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                                                  1.             2.
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1. Does your jurisdiction's comprehensive   No--           Yes--
 plan (or in the case of a tribe or TDHE,
 a local Indian Housing Plan) include a
 ``housing element''? A local
 comprehensive plan means the adopted
 official statement of a legislative body
 of a local government that sets forth (in
 words, maps, illustrations, and/or
 tables) goals, policies, and guidelines
 intended to direct the present and future
 physical, social, and economic
 development that occurs within its
 planning jurisdiction and that includes a
 unified physical plan for the public
 development of land and water. If your
 jurisdiction does not have a local
 comprehensive plan with a ``housing
 element,'' please enter no. If no, skip
 to question 4.
2. If your jurisdiction has a               No--           Yes--
 comprehensive plan with a housing
 element, does the plan provide estimates
 of current and anticipated housing needs,
 taking into account the anticipated
 growth of the region, for existing and
 future residents, including low-,
 moderate-, and middle-income families,
 for at least the next five years?
3. Does your zoning ordinance and map,      No--           Yes--
 development and subdivision regulations
 or other land use controls conform to the
 jurisdiction's comprehensive plan
 regarding housing needs by providing: (a)
 sufficient land use and density
 categories (multifamily housing,
 duplexes, small lot homes and other
 similar elements); and (b) sufficient
 land zoned or mapped ``as-of-right'' in
 these categories, that can permit the
 building of affordable housing addressing
 the needs identified in the plan? (For
 purposes of this notice, ``as-of-right,''
 as applied to zoning, means uses and
 development standards that are determined
 in advance and specifically authorized by
 the zoning ordinance. The ordinance is
 largely self-enforcing because little or
 no discretion occurs in its
 administration.) If the jurisdiction has
 chosen not to have either zoning, or
 other development controls that have
 varying standards based upon districts or
 zones, the applicant may also enter yes..
4. Does your jurisdiction's zoning          Yes--          No--
 ordinance set minimum building size
 requirements that exceed the local
 housing or health code or is otherwise
 not based upon explicit health standards?
5. If your jurisdiction has development     No--           Yes--
 impact fees, are the fees specified and
 calculated under local or state statutory
 criteria? If no, skip to question 7. Alternatively, if your jurisdiction
 does not have impact fees, you may enter
 yes..
6. If yes to question 5, does the  No--           Yes--
 statute provide criteria that set
 standards for the allowable type of
 capital investments that have a direct
 relationship between the fee and the
 development (nexus), and a method for fee
 calculation?
7. If your jurisdiction has impact or       No--           Yes--
 other significant fees, does the
 jurisdiction provide waivers of these
 fees for affordable housing?
8. Has your jurisdiction adopted specific   No--           Yes--
 building code language regarding housing
 rehabilitation that encourages such
 rehabilitation through gradated
 regulatory requirements applicable as
 different levels of work are performed in
 existing buildings? Such code language
 increases regulatory requirements (the
 additional improvements required as a
 matter of regulatory policy) in
 proportion to the extent of
 rehabilitation that an owner/developer
 chooses to do on a voluntary basis. For
 further information see HUD publication:
 ``Smart Codes in Your Community: A Guide
 to Building Rehabilitation Codes''
 (www.huduser.org/publications/destech/smartcodes.html).
9. Does your jurisdiction use a recent
 version (i.e. published within the last
 five years or, if no recent version has
 been published, the last version
 published) of one of the nationally
 recognized model building codes (i.e. the
 International Code Council (ICC), the
 Building Officials and Code
 Administrators International (BOCA), the
 Southern Building Code Congress
 International (SBCI), the International
 Conference of Building Officials (ICBO),
 the National Fire Protection Association
 (NFPA)) without significant technical
 amendment or modification? In the case of
 a tribe or TDHE, has a recent version of
 one of the model building codes as
 described above been adopted or,
 alternatively, has the tribe or TDHE
 adopted a building code that is
 substantially equivalent to one or more
 of the recognized model building codes?
Alternatively, if a significant technical   No--           Yes--
 amendment has been made to the above
 model codes, can the jurisdiction supply
 supporting data that the amendments do
 not negatively impact affordability?
10. Does your jurisdiction's zoning         No--           Yes--
 ordinance or land use regulations permit
 manufactured (HUD-Code) housing ``as of
 right'' in all residential districts and
 zoning classifications in which similar
 site-built housing is permitted, subject
 to design, density, building size,
 foundation requirements, and other
 similar requirements applicable to other
 housing that will be deemed realty,
 irrespective of the method of production?
11. Within the past five years, has a       No--           Yes--
 jurisdiction official (i.e., chief
 executive, mayor, county chairman, city
 manager, administrator, or a tribally
 recognized official, etc.), the local
 legislative body, or planning commission,
 directly, or in partnership with major
 private or public stakeholders, convened
 or funded comprehensive studies,
 commissions, or hearings, or has the
 jurisdiction established a formal ongoing
 process, to review the rules,
 regulations, development standards, and
 processes of the jurisdiction to assess
 their impact on the supply of affordable
 housing?
12. Within the past five years, has the     No--           Yes--
 jurisdiction initiated major regulatory
 reforms either as a result of the above
 study or as a result of information
 identified in the barrier component of
 the jurisdiction's ``HUD Consolidated
 Plan?'' If yes, attach a brief list of
 these major regulatory reforms.
13. Within the past five years has your     No--           Yes--
 jurisdiction modified infrastructure
 standards and/or authorized the use of
 new infrastructure technologies (e.g.
 water, sewer, street width) to
 significantly reduce the cost of housing?

[[Page 21666]]

 
14. Does your jurisdiction give ``as-of-    No--           Yes--
 right'' density bonuses sufficient to
 offset the cost of building below market
 units as an incentive for any market rate
 residential development that includes a
 portion of affordable housing? (As
 applied to density bonuses, ``as of
 right'' means a density bonus granted for
 a fixed percentage or number of
 additional market rate dwelling units in
 exchange for the provision of a fixed
 number or percentage of affordable
 dwelling units and without the use of
 discretion in determining the number of
 additional market rate units.).
15. Has your jurisdiction established a
 single, consolidated permit application
 process for housing development that
 includes building, zoning, engineering,
 environmental, and related permits?
Alternatively, does your jurisdiction       No--           Yes--
 conduct concurrent not sequential,
 reviews for all required permits and
 approvals?
16. Does your jurisdiction provide for      No--           Yes--
 expedited or ``fast track'' permitting
 and approvals for all affordable housing
 projects in your community?
17. Has your jurisdiction established time  No--           Yes--
 limits for government review and approval
 or disapproval of development permits in
 which failure to act, after the
 application is deemed complete, by the
 government within the designated time
 period, results in automatic approval?
18. Does your jurisdiction allow            No--           Yes--
 ``accessory apartments'' either as: (a) a
 special exception or conditional use in
 all single-family residential zones, or
 (b) ``as of right'' in a majority of
 residential districts otherwise zoned for
 single-family housing?
19. Does your jurisdiction have an          No--           Yes--
 explicit policy that adjusts or waives
 existing parking requirements for all
 affordable housing developments?
20. Does your jurisdiction require          Yes--          No--
 affordable housing projects to undergo
 public review or special hearings when
 the project is otherwise in full
 compliance with the zoning ordinance and
 other development regulations?
    Total Points:.........................  ------         ------
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Part B.--State Agencies and Departments or Other Applicants Applying for
 Projects Located in Unincorporated Areas or Areas Otherwise Not Covered
                                in Part A
------------------------------------------------------------------------
                                                  1.             2.
------------------------------------------------------------------------
1. Does your state, either in its planning  No--           Yes--
 and zoning enabling legislation or in any
 other legislation, require localities
 regulating development have a
 comprehensive plan with a ``housing
 element?'' If no, skip to question 4.
2. Does your state require that a local     No--           Yes--
 jurisdiction's comprehensive plan
 estimate current and anticipated housing
 needs, taking into account the
 anticipated growth of the region, for
 existing and future residents, including
 low-, moderate-, and middle-income
 families, for at least the next five
 years?
3. Does your state's zoning enabling        No--           Yes--
 legislation require that a local
 jurisdiction's zoning ordinance have: (a)
 sufficient land use and density
 categories (multifamily housing,
 duplexes, small lot homes and other
 similar elements); and (b) sufficient
 land zoned or mapped in these categories,
 that can permit the building of
 affordable housing that addresses the
 needs identified in the comprehensive
 plan?
4. Does your state have an agency or        No--           Yes--
 office that includes a specific mission
 to determine whether local governments
 have policies or procedures that are
 raising costs or otherwise discouraging
 affordable housing?
5. Does your state have a legal or          No--           Yes--
 administrative requirement that local
 governments undertake periodic self-
 evaluation of regulations and processes
 to assess their impact upon housing
 affordability and undertake actions to
 address these barriers to affordability?
6. Does your state have a technical         No--           Yes--
 assistance or education program for local
 jurisdictions that includes assisting
 them in identifying regulatory barriers
 and in recommending strategies to local
 governments for their removal?
7. Does your state have specific enabling   No--           Yes--
 legislation for local impact fees? If no,
 skip to question 9.
8. If yes to question 7, does the  No--           Yes--
 state statute provide criteria that set
 standards for the allowable type of
 capital investments that have a direct
 relationship between the fee and the
 development (nexus) and a method for fee
 calculation?
9. Does your state provide significant      No--           Yes--
 financial assistance to local governments
 for housing, community development and/or
 transportation that includes funding
 prioritization or linking funding on the
 basis of local regulatory barrier removal
 activities?
10. Does your state have a mandatory state- No--           Yes--
 wide building code that (a) does not
 permit local technical amendments and (b)
 uses a recent version (i.e., published
 within the last five years or, if no
 recent version has been published, the
 last version published) of one of the
 nationally recognized model building
 codes (i.e., the International Code
 Council (ICC), the Building Officials and
 Code Administrators International (BOCA),
 the Southern Building Code Congress
 International (SBCI), the International
 Conference of Building Officials (ICBO),
 the National Fire Protection Association
 (NFPA)) without significant technical
 amendment or modification?
Alternatively, if the state has made        No--           Yes--
 significant technical amendments to the
 model code, can the state supply
 supporting data that the amendments do
 not negatively impact affordability?
11. Has your state adopted mandatory        No--           Yes--
 building code language regarding housing
 rehabilitation that encourages
 rehabilitation through gradated
 regulatory requirements applicable as
 different levels of work are performed in
 existing buildings? Such language
 increases regulatory requirements (the
 additional improvements required as a
 matter of regulatory policy) in
 proportion to the extent of
 rehabilitation that an owner/developer
 chooses to do on a voluntary basis. For
 further information see HUD publication:
 ``Smart Codes in Your Community: A Guide
 to Building Rehabilitation Codes''
 (www.huduser.org/publications/destech/smartcodes.html).
12. Within the past five years, has your    No--           Yes--
 state made any changes to its own
 processes or requirements to streamline
 or consolidate the state's own approval
 processes involving permits for water or
 wastewater, environmental review, or
 other state-administered permits or
 programs involving housing development.
 If yes, briefly list these changes.

[[Page 21667]]

 
13. Within the past five years, has your    No--           Yes--
 state (i.e., Governor, legislature,
 planning department) directly or in
 partnership with major private or public
 stakeholders, convened or funded
 comprehensive studies, commissions, or
 panels to review state or local rules,
 regulations, development standards, and
 processes to assess their impact on the
 supply of affordable housing?
14. Within the past five years, has the     No--           Yes--
 state initiated major regulatory reforms
 either as a result of the above study or
 as a result of information identified in
 the barrier component of the state's
 ``Consolidated Plan submitted to HUD?''
 If yes, briefly list these major
 regulatory reforms.
15. Has the state undertaken any other      No--           Yes--
 actions regarding local jurisdiction's
 regulation of housing development
 including permitting, land use, building
 or subdivision regulations, or other
 related administrative procedures? If
 yes, briefly list these actions.
    Total Points:.........................  ------         ------
------------------------------------------------------------------------

    As noted in the earlier notices published on this subject, to 
assist NOFA applicants in reviewing their state and local regulatory 
environments so they can effectively address the questions above that 
are to be incorporated in all FY2004 NOFAs, the Department recommends 
visiting HUD's Regulatory Barriers Clearinghouse (RBC) at 
www.huduser.org/rbc/. This Web site was created to support state, 
local, and tribal governments and other organizations seeking 
information about laws, regulations, and policies affecting the 
development, maintenance, improvement, availability and cost of 
affordable housing. To encourage better understanding of the impact of 
regulatory issues on housing affordability, the Web site includes an 
extensive bibliography of major studies and guidance materials to 
assist state, local and tribal governments in fashioning solutions and 
approaches to expanding housing affordability through regulatory reform 
at www.huduser.org/rbc/relevant_publications.html.

    Dated: April 14, 2004.
A. Bryant Applegate,
Senior Counsel and Director of America's Affordable Communities 
Initiative.
[FR Doc. 04-8978 Filed 4-20-04; 8:45 am]
BILLING CODE 4210-67-P