Ever wonder why real estate is so expensive? Part of the problem is that the cost of government regulation is being borne mainly by the developers — who pass those costs on to buyers — rather than being shared more with the public.
No small number of politicians, businesses and industries complain that government regulations are overly obstructive, often ambiguous and even unnecessary, not to mention exceedingly costly in time and money. The real estate industry is no exception.
An extensive array of federal, state, county and municipal regulations — variously interpreted and enforced by regulatory officials — govern urban planning, land and infrastructure development, and building construction.
But simplistic political mantras and sweeping generalizations complaining about excessive regulation, heard frequently these days, obscure reality and contribute little to useful discourse about regulatory reform. Although some regulations indeed go too far and are too restrictive, many others are essential and undeniably effective. Thus, the challenge for representative government, and for those who write regulations, is striking the right balance between too much, too little and just the right amount.
Overly restrictive regulations can stifle creativity and yield unexpected, undesirable project results. In the District, for example, developers have been required at times to build more structured parking than needed; to preserve and incorporate obsolete structures arguably undeserving of preservation; and to plant trees in places environmentally ill-suited for their maintenance and survival.
Inadequate regulation, or lack of regulatory enforcement, can lead to negative and potentially dangerous consequences. Recurring hurricane damage to buildings along the southeastern coast is largely attributable either to insufficiently robust structural regulations, especially pertaining to roof and window wall framing, or to noncompliance with regulations that, if followed, would make structures more stable and safe.
Wisely conceived, mandatory requirements can serve public- and private-sector interests well. Yet demanding regulations should be complemented by well considered guidelines, options and recommendations that enable and encourage public- and private-sector discretion and flexibility.
In the world of real estate development, regulations were first enacted to protect public health and safety. Zoning ordinances separated incompatible land uses — keeping factories away from homes — and helped maintain private property values. Building-height limitations reflected multistory firefighting limitations and the need for adequate natural light and air along city streets.
Copious building-code regulations have evolved to reduce the multiple risks of fire and smoke; structural failures or collapse caused by natural disasters such as flooding, hurricanes and earthquakes; electrical and natural gas hazards; and biohazards and environmental contamination related to land, air, water and building materials. Varying from region to region, such codes apply to every type and size of building, from single-family houses to mega-malls, from industrial plants to skyscrapers.
Other codes address the functional performance, reliability and safety of public utility systems, streets, sidewalks, parking garages, public parks, cultural venues and recreational facilities. Public-eating establishments must conform to food health and safety laws. And today buildings must be accessible for people with disabilities.
Historic incidents related to health and safety have led to more regulations intended to anticipate every conceivable mishap, error or omission. Consequently, 21st-century codes are so voluminous and complex that specialized code consultants have come into being to help project designers interpret code content, intent and applicability.
But especially controversial regulations are those that go beyond addressing immediately tangible public health, safety and accessibility needs. Now regulations target economic, ecological, social, cultural and technological goals and sometimes aesthetic objectives that are matters of value judgment.
Consider the many public policy goals that government regulations seek to address: curtailing neighborhood gentrification, creating affordable housing, promoting demographic diversity, conserving energy, reducing greenhouse gas emissions, protecting the natural environment, saving trees, preserving historic resources, and incentivizing the use of mass transit, walking and biking as alternatives to automobile use.
Even promoting excellence in architecture, landscape architecture and urban design — always dependent on aesthetic value judgment — can be the subject of regulation. The U.S. Commission of Fine Arts and the city of Alexandria design review boards, one of which I serve on, are examples of official bodies empowered to critique project designs and pass judgment on aesthetic quality.
All of the above goals are worth pursuing. But trying to meet these goals only through broad-brush regulations imposed on real estate developers poses a problem: All development costs eventually are borne by those few members of the community who buy or rent the real estate project being created. Instead, the public sector — taxpayers and voters through representative government — needs to shoulder more financial responsibility for achieving many of these goals.
Part of taking on that responsibility necessitates regulatory reform. Simplify building codes to make interpretation easier.
Rewrite zoning ordinances to be more flexible, more fine-grained and more focused on desired urban design and architectural outcomes.
And most important, tailor regulations going beyond health and safety to ensure that the cost of pursuing public policy goals through real estate development is fairly shared between private sponsors of projects and the public, the ultimate beneficiaries.
Roger K. Lewis is a retired practicing architect, a University of Maryland professor emeritus of architecture and a guest commentator on “The Kojo Nnamdi Show” on WAMU (88.5 FM).
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