Legal Landscape Hurts Affordability

Today's legal landscape for home building contributes to the crisis in affordable housing. As cities, counties and states cope with their own mounting fiscal shortfalls, the robust housing sector looks like a fruitful feeding ground for new sources of revenue. Be it the dollars in impact fees or permit charges, every cent imposed further erodes a builders' ability to produce affordable housing.

To stem the tide, the Legal Action Fund of the National Association of Home Builders recently approved funds to support local efforts to win court battles against several new assessments and designations.

• In Ohio, builders have challenged a telecommunications impact fee imposed by the City of Lebanon. Before builders can receive a building permit, they are required to connect to a city-owned broadband utility telecommunications system and pay a $1,250 fee for each home, regardless of whether the owners of the home intend to use the service or not. A suit filed by the HBA of Greater Cincinnati and the HBA of Dayton/Miami Valley seeks a permanent injunction against the fee.
• In northern California, the HBA is challenging a Fish and Wildlife Service listing that the California tiger salamander in Sonoma and Santa Barbara counties are distinct populations and endangered species. If this ruling stands, habitat areas would be protected. Building upon legal victories in pygmy owl and salmon cases, builders and the HBA is petitioning the court to find that these determinations are arbitrary and capricious.
• Farther south in the state, builders in San Diego,through the BIA, are continuing their legal challenges against a National Pollutant Discharge Elimination System permit issued by the California Regional Water Quality Control Board. Under section 402 of the federal Clean Water Act, permit s are required when pollutants - such as sediment - discharge into "navigable waters." Builders and the BIA are appealing a trial court decision upholding the permit.
• A developer in Texas lost a ruling in the 5th Circuit in his argument that the application of provisions of the Endangered Species Act to karst invertebrates (cave bugs) violates the Commerce Clause of the U.S. Constitution. The developer now wants the case to be heard by the U.S. Supreme Court and wants an amicus brief written by NAHB legal staff to support his argument.