2003 Consolidated Plan for Housing & Community Development
Housing Strategies

General Housing Policies

All the citizens of Burlington have the right to live and raise their families in homes which are safe and sound at a cost that allows them to afford the other necessities of life. In the face of Burlington's prosperity, thousands of Burlington's residents have been left behind through no fault of their own. They include the elderly and disabled, as well as many workers whose wages have not kept up with housing costs.

The free market for housing is often not a fair market for low income residents. Left unchecked, market forces will allow housing to deteriorate, push people from their homes and leave others with no homes at all. The City must act to protect its residents from this harm through enforcement of its housing ordinances (including its inclusionary zoning ordinance, which makes affordable housing an integral part of every newly constructed residential project in the City) and the provision of housing outside the private market. In addition, the City needs to find ways to protect residents from unfair property speculation and to give tenants the protection of just cause eviction laws.

Housing is the essence of Burlington's neighborhoods. Support for affordable housing allows elders to remain in the homes and neighborhoods they know. Homebuyer purchase and rehabilitation programs allow the next generation of residents to own and modernize older homes.

The nonprofit housing organizations serve a crucial role in the development of affordable rental housing and housing for the most vulnerable populations. The City will continue to support these community-based nonprofit housing developers in their efforts in Burlington and in expanding their areas of operation beyond Burlington's Old North End - and beyond Burlington.

Affordable housing is also a balance to economic development. In boom times, affordable housing ensures that there is housing for workers and that rising prices do not displace residents. In a troubled economy, affordable housing development is an economic engine and its subsidies ensure that low-income residents are not made homeless. Finally, the use of affordable housing to redevelop distressed neighborhoods prevents the loss of value of the surrounding properties and encourages long-term investment by other property owners.

Control of affordable housing should rest with the community as a whole and with the residents of that housing. Government subsidies for housing should remain with the assisted housing, and not simply provide profits to the initial occupant or developer. Renters deserve equal protections of their legal rights to decent homes. The benefits and burdens of development in the community must be evenly shared among the residents of the community and must prevent extensive displacement and cost burdens to low income people.

Burlington's housing policy is shaped around the concept of a housing tenure ladder. The ladder is an affordable housing system that combines security and mobility, one that guarantees both a "right to stay put" and a "chance to move on." The rungs of the housing tenure ladder consist of a wide range of living situations, including single room occupancy (SRO), family-sized apartments, detached homes, cooperatives, condominiums, group homes and co-housing. This housing includes a wide range of tenures, including public ownership, for-profit rental, nonprofit rentals, cooperative ownership, limited equity condominiums and houses, and market-priced condominiums and houses.

The many different rungs allow residents to change their housing when their needs or circumstances change, from living situations that are precarious to those that are more secure; moving from situations that are cramped to those that are more commodious; moving from situations requiring each and every resident to "go it alone" to those that allow more cooperative sharing of residential responsibilities, burdens and risks. At each rung, the tenure of residents must be secure and opportunities must be created, with an easy process for moving from one rung to another. The City will continue to support new models of housing tenure that create additional rungs on the housing tenure ladders, bridging the yawning gap between for-profit rental housing and market-priced homeownership.

Minimizing Involuntary Displacement

The City has a long-standing policy of minimizing involuntary displacement. That policy is even more critical in the current housing market, where low-income residents who lose housing stand little chance of regaining it.

The City will continue to enforce Uniform Relocation Act requirements for all sub-grantees. The City will also continue to enforce its condominium conversion and housing replacement ordinances, and will continue to impose rent stabilization agreements on any landlord receiving a Housing Initiatives Program loan.

The City will continue to support landlord-tenant resource services, funded through the Apartment Registration Fee Ordinance.[1] Those services include the efforts of Vermont Tenants, Inc. and Vermont Apartment Owners Services to inform tenants and landlords of their legal rights and responsibilities. Both landlords and tenants often turn to Renting in Vermont, a booklet produced by Vermont Tenants, Inc. to answer basic questions about their rights and responsibilities. It summarizes Vermont's landlord/tenant law as well as some municipal laws, state regulations and Vermont Supreme Court decisions that also govern the landlord/tenant relationship. The Affordable Housing Task Force found that in Burlington, both parties would benefit by requiring landlords to distribute a Burlington-specific handout that outlines the rights and responsibilities of both landlords and tenants and includes the basics of local laws and norms of behavior that are expected of tenants, i.e. noise, trash, recycling, and housing codes. Consideration should be given to requiring certain lease provisions in all leases.

Under Vermont law, a landlord may terminate a tenancy for no cause. The majority of Affordable Housing Task Force members felt that lease-abiding tenants should be afforded some additional security of tenure by extending the notice period for no cause evictions. Currently, tenants without written rental agreements (leases) may be evicted provided that the landlord gives them 60-day written notice if renting monthly, 21 days if renting weekly, and 90-day written notice if the tenant has resided in the premises continuously for over two years and rents monthly. Under a written rental agreement, a tenant can be evicted under whatever time period the parties agree on, but no less than 30 days if renting monthly, and no less than 7 days if renting weekly. A tenant with a written lease who has resided in the premises continuously for over two years is entitled to no less than 60 days notice for a no cause eviction. The concept of a graduated notice period is that the longer that a tenant has resided continuously in an apartment, the longer notice period to which they are entitled. In March 2003, Burlington voters overwhelmingly passed a Charter change that increases the notice period for no-cause evictions that landlords must provide to tenants from 60 days to 90 days. In addition, the voters also passed a Charter change increasing the notice period for rent increases from 60 days to 90 days. Both of these amendments to the City's Charter must be approved by the General Assembly of the Vermont Legislature and signed by the Governor before they become effective.

The City will continue to assist elderly and disabled homeowners to stay in their homes through grants and loans provided through the City's Housing Initiatives Program. The City will also continue to support the home?matching program of HomeShare Vermont.

Reducing Energy and Utility Costs

The City remains committed to reducing residential energy costs. The City adopted a Minimum Rental Housing Energy Efficiency Standards Ordinance in March of 1997, and will continue to enforce it. Through December 2002, 624 apartments in 238 buildings had been inspected, with 233 buildings requiring some work. The average compliance cost per unit has been $668, while the average annual savings per unit is $138.

The City will continue to support the residential demand side management programs of the Burlington Electric Department (BED) and Vermont Gas Systems (VGS). BED and VGS continue to work closely together on efficiency projects, which creates a comprehensive set of energy services for city residents. The City will also continue to support Vermont Energy Investment Corporation's programs for improving residential and commercial energy efficiency. With the assistance of the Community & Economic Development Office, BED and Vermont Development Credit Union have developed a loan program to fund energy efficiency projects.

The City supports and collaborates with the Champlain Valley Office of Economic Opportunity's Weatherization Service to provide energy efficiency improvements (i.e. energy analysis, insulation, low cost repairs, heating system replacement) for residential properties. In the last five program years, the Weatherization Service has completed weatherization of 126 buildings within the City of Burlington, for a total of 236 residential units. Energy improvements totaling nearly $375,000 in direct costs (excluding technical assistance, administrative and other program expenses) have been made in the City, for an average improvement of more than $2,975 per building or nearly $1,600 per unit. The Weatherization Service partners with rental property owners, Vermont Gas Systems and the Burlington Electric Department (BED) so that all organizations can maximize their impacts. Of the $375,000 in direct costs, the Weatherization Service provided nearly $260,000; Vermont Gas participated in nearly $85,000 of the costs; and BED provided nearly $13,000 in funding. Property owners provided nearly $11,500 in direct funding, as well as in-kind participation in improvements with direct funding that did not pass through the Weatherization Service. (Other government programs made up the remaining costs of approximately $5,500.) CEDO will continue to provide low?interest loans from its Housing Initiatives Program for moderate rehabilitation to meet code and increase energy efficiency. CEDO will also continue to promote cost?effective energy improvements in every housing project supported directly or indirectly with public resources.

Ensuring No Net Loss of Assisted Housing

Approximately 300 units of privately owned rental housing in Burlington were rehabilitated and received Project-Based Section 8 in the early 1980s. Presently between 70 to 100 of those units do not have agreements ensuring their long-term affordability. In order to prevent the conversion of those units to market rate housing when their contracts expire over the next 5 to 10 years, agreements need to be reached with each property owner that preserve the future affordability. The City has designated BHA as the entity to work with the Vermont Housing Finance Agency to encourage the conversion of privately owned Section 8 project-based developments to non-profit ownership prior to the end of the Section 8 contracts.

In addition, the City will urge Vermont's Congressional delegation to support a preservation tax incentive that would provide exit tax relief in order to encourage private-sector owners of assisted housing to transfer properties to "preservation entities" committed to preserving the stock as affordable housing. Congress should also establish federal funding for low-income housing preservation as proposed in S. 1365, co-sponsored by Senator Jeffords. Preservation should be included as an eligible activity under any National Housing Trust Fund proposal passed by Congress. Included as one of the recommendations or the Millennial Housing Commission in May 2002, this proposal is necessary to preserving privately owned, federally assisted units. Most of the owners of these properties face such considerable capital tax liabilities that they will likely sell to the highest bidder and displace the tenants. Capital gains tax changes will encourage the sale of Section 8 New Construction/Substantial Rehabilitation projects and Low Income Housing Tax Credit projects to nonprofits in order to ensure long-term affordability.

Reducing Lead-Based Paint Hazards

The results of lead screening in the City from 1994 to 2002 show, overall, a decided downward trend in the number of children with elevated lead levels:

Over the five-year period from 1994 to 1999, Burlington's percent of children with an elevated blood lead level (EBL) was 8.8%, compared to a statewide percentage of 4.7%. The Vermont Department of Health is currently seeking funding from the Center for Disease Control's Childhood Lead Poisoning Prevention Program to undertake some targeted activities with the Burlington Code Enforcement Office, Visiting Nurse Association, and Vermont Tenants, Inc. to address this issue.

Many of the growing refugee community in Burlington are housed in older housing units, where lead-based paint hazards are more likely to exist. The Vermont Department of Health has developed Healthy Home booklets in Vietnamese and Bosnian (as well as Spanish) to assist in screening efforts.

The City's nonprofit housing partners test the properties they rehabilitate for lead paint hazards and collaborate with the Vermont Housing & Conservation Board's Lead Paint Reduction Program to mitigate lead paint hazards. CEDO's Housing Development Coordinator works as a liaison with the state program and property owners to assure that all projects funded through CEDO also had lead abatement work completed as part of the project. VHCB has mitigated lead paint hazards in a total of 203 units in Burlington through November 2002, awarding $877,598 in lead paint program funds to these projects. All owners of multiple unit properties and contractors working on these properties take and provide evidence that they have taken the Lead Paint Abatement Essential Maintenance Practices (EMPs) class given in conjunction with the State's Health Dept and VHCB's Lead paint Reduction Program.

The City will continue to undertake the following activities to address lead paint hazards in the City's housing units:

• The City will support the continuation and expansion of a lead paint hazard reduction strategy for the Old North End Community in collaboration with the Vermont Department of Health and the Vermont Housing and Conservation Board's (VHCB) Lead Based Paint Hazard Reduction Program.
• For housing assisted with public funds from the City's Housing Initiatives Program, the Community & Economic Development Office (CEDO) will insist on a plan for mitigating lead paint hazards in cases where that housing is occupied by children under six years of age.
• CEDO will require all recipients of free exterior paint to participate in a lead paint safety training course offered free of charge by the VHCB.

The new HUD regulations applicable to federally subsidized housing regarding lead paint that went into effect in September 2000 require that any loose/deteriorating paint in a housing unit with a child age six years or under must be corrected by appropriately trained maintenance people, and that the unit must subsequently pass a clearance test. This is a potentially serious new hurdle for recruiting private landlords to participate in the Section 8 program. The regulations also have the potential to increase discrimination against families with young children - a group that already encounters great difficulty in a tight housing market.

• The City will assist BHA in the development of a program in conjunction with the Vermont Housing and Conservation Board (VHCB) to perform lead-based paint hazard reduction on Section 8 apartments at little or no cost to the landlord.

Overcoming Barriers to Affordable Housing

Lack of Funding

The shortage of affordable housing in Vermont and nationally has led to a dramatic increase in the number of homeless families and disabled individuals. Emergency shelters are strained beyond capacity to meet this escalating need. The largest increase in the homeless population throughout Vermont over the past three years has been among families - many of whom have at least one full-time wage earner. As long as a livable wage job remains out of reach for some Vermonters, public subsidies will always be needed to help families obtain and retain their housing.

Federal resources to fund homeless services are meager at best. Given the imminent convergence of welfare time limits with a downturn in the economy, it is highly likely that even greater pressure will be placed on local shelters. McKinney Homeless Assistance Program funding must be substantially increased to accommodate the growing number of families and individuals who are simply unable to pay the high cost of housing in their communities.

The State should at a minimum maintain current funding levels for Homeless Shelters and Services funded through the State Office of Economic Opportunity, as well as the "Back Rent" Program, Temporary Housing Assistance and Assistive Community Care Services funded through PATH, and should increase funding levels wherever possible. These programs provide a critical safety net that prevents many Vermonters from becoming homeless. Investment in such programs prevents the high personal and social costs of homelessness. In addition, the State should create a demonstration project to encourage the development of more transitional housing for formerly homeless families.

Nationally, the Section 8 voucher program (rental assistance) serves only about a quarter of the families eligible for assistance. The Burlington Housing Authority, which serves all of Burlington and any dwelling unit located within a six-mile radius of Burlington, has increased the number of Section 8 vouchers from about 500 in 1995 to over 1,500 in 2002. Even with this significant increase in available subsidies, there is still a considerable waiting period for eligible applicants. The federal government should dramatically increase funding levels for Section 8 Vouchers.

The 1996 welfare reform law gave states substantial flexibility to use federal and state funds to design programs that help families move from welfare to self-sufficiency. An increasing number of states and county governments are recognizing that housing assistance is critical to the success of welfare reform. Using federal welfare funds and state matching funds, these states are providing housing subsidies to families that are (or recently were) on welfare. Assistance ranges from tenant-based and project-based rental assistance to homeownership assistance for families that are making the transition from welfare to work. In Vermont, the main concern about this approach among low-income advocates is that current welfare benefit levels not be reduced in order to provide funds for housing subsidies. Vermont should explore using untapped TANF reserve funds, without reducing benefit levels, to provide housing subsidies to families that are (or recently were) on welfare.

In addition, too many assisted households fail to successfully maintain their housing. Providing supportive services to families to help them address issues that jeopardize their housing is far more cost-effective and humane than emergency shelters. Unfortunately, there are currently no federal programs that address this aspect of housing. Federal funds should be available to assist public and nonprofit organizations and private sector housing providers to provide supportive services that help tenants retain their housing. Also, the Vermont Agency of Human Services should be encouraged to redirect resources to support housing retention/eviction prevention programs that are more cost-effective than emergency housing.

Despite the innovative funding strategies used by today's entrepreneurial nonprofit housing organizations, the need for affordable housing far outpaces the supply. Public funding, especially from the federal government, is the greatest limiting factor in the capacity of the nonprofits to create new affordable housing. The private sector is unable to build housing that serves low-income households without large amounts of public subsidy.

Since 1987, the Vermont Housing and Conservation Board has invested $92 million of state funds in affordable housing. This has helped to generate over $320 million in construction activity, created approximately 10,000 jobs in Vermont, and created or preserved over 6,000 units of housing - these benefits reach deep into our community. But the need for affordable housing far exceeds what the resources can deliver. To exacerbate an already bad situation, federal support for housing has plummeted since the mid-1980s. According to the recent report, Between a Rock and a Hard Place: Housing and Wages in Vermont, the Section 8 new construction/substantial rehabilitation program alone funded the construction/rehabilitation of 4,100 affordable apartments in Vermont between 1976 and 1985 (when the program was abolished). Over the next twelve years, only 2,384 units were built in Vermont with every remaining form of federal assistance combined." The State should at a minimum maintain current funding levels for the Vermont Housing and Conservation Board and the State Low Income Housing Tax Credit, and should increase funding wherever possible.

Other than the HOME program, which was created by Congress in 1992, there have been no new federal programs designed to stimulate new rental housing production for the past 15 years. The federal Low Income Housing Tax Credit is the only program specifically for new production, and applications for tax credits far exceed the amount available. For example in the semi-annual application round of August 2002, the total credits requested were approximately $2.7 million and the credit available was approximately $650,000. Congress should establish a new rental housing production program that provides capital grants, such as the proposed National Housing Trust Fund that would build and preserve 1.5 million units of rental housing for the lowest income families over the next 10 years.

Burlington currently receives slightly over $1 million of Community Development Block Grant (CDBG) funds and $500,000 of HOME Investment Partnership funds. The City uses roughly one-third of the CDBG funds and all of the HOME funds in support of affordable housing. The amount of funding that the City receives under both programs has remained relatively unchanged over the past decade. Any increase to either program will allow the City to assist more low and moderate-income households with their housing needs. Congress should, at a minimum, maintain current funding levels for CDBG and HOME and should seek to increase funding levels wherever possible. In particular, the Vermont Congressional Delegation is urged to keep pushing for an increase in the small state minimum under the HOME program.

The greatest challenge facing Burlington in its efforts to increase the rate of homeownership is a lack of grant funds available for rehabilitation to make older homes in central city neighborhoods competitive with surrounding newer homes. Most of the older homes do not appraise at a level high enough to finance the rehabilitation needed to bring the properties up to modern codes and livability standards. Capital grants for rehabilitation along with financial assistance for down-payments and closing costs and homeownership training, are among the most significant ways that the City can support increased homeownership in Burlington. The City Council should seek voter approval for increasing the Housing Trust Fund tax rate by one cent or by developing a new, alternate funding source for the purpose of supporting homeownership in areas of the city with low rates of homeownership.

Under the VHCB HOMELAND Program, lower-income households can receive financial assistance to purchase their own home from offerings on the private market. Depending on income level, need and other factors, grants of up to $20,000 are available through the Burlington Community Land Trust to reduce the purchase price. Homebuyer education and preparedness is provided through BCLT's HomeOwnership Center. State funding for both of these programs is often the key to unlocking the door to homeownership for low-income families, and must be maintained.

At the City's request, in May 2002, the Board of Commissioners of the Vermont Housing Finance Agency increased VHFA's income and purchase price limits for two of Burlington's census tracts (4 and 10). This change will expand purchase options to first-time homebuyers, but the limits need to be increased for other neighborhoods in order to extend this incentive to more buyers, and to make urban home buying more attractive. Federal rules which prohibit VHFA from making this change for census tracts with poverty rates below a set level should be changed. Due to an increase in the median household income in census tract 10 from the 2000 Census, this tract is no longer eligible for the increased income and purchase price limits.

In addition, the City will encourage Congress to establish tax credits and other incentives to encourage the production of owner-occupied housing affordable to low and moderate-income households and increase funding for homeownership counseling. Administered through state housing finance agencies, the tax credit could be used to offset the developer's total development cost (in areas where the cost to build or rehabilitate a home is greater than the appraised value) or as a credit to lenders who provide lower-cost mortgages to qualified buyers. This concept is included in the Millennial Housing Commission Report, which was presented to Congress in May 2002.

Burlington Housing Authority (BHA) operates one of the nation's most successful Section 8 homeownership demonstration projects. This program is a very effective way to extend the benefits of homeownership to very low-income families. The Task Force concluded that the City ought to find ways to provide direct financial support for the growth of BHA's Section 8 homeownership program. Increased funds available to the Burlington Housing Trust Fund should be considered for supporting this program.

Resources to encourage homeownership can also be increased through employer-assisted programs. FannieMae has developed an Employer-Assisted Housing initiative to help police, firefighters, and teachers purchase homes in the communities they serve. Such programs not only improve municipalities' ability to recruit and retain valuable employees, but they contribute enormously to the stability and security of neighborhoods. The City will work with FannieMae, the HomeOwnership Center of Chittenden County, and the Vermont Development Credit Union to design such a program and will also urge its two largest employers, the University of Vermont and Fletcher Allen Health Care, to join the effort and create companion programs for their employees.

Lack of Developable Land

There is very limited developable land available in the City of Burlington. The Task Force recommended that the City inventory the land it owns and assess the suitability of such land for housing development. If any such sites are identified, the City should make them available for affordable housing development through an open competition. CEDO and Planning & Zoning should coordinate this inventory of lands, and all departments should cooperate in this process. Through long-term leases, resale restrictions, and limited equity provisions, the City should use this land subsidy to create perpetually affordable housing.

The State of Vermont owns land in Burlington that is appropriate for housing development. An inventory of State-owned land should be created and requests for proposals should be solicited from affordable housing developers for appropriate sites. During the 2001 Legislative session, the Vermont General Assembly passed H.483, "AN ACT TO STIMULATE THE DEVELOPMENT OF AFFORDABLE HOUSING." Among several other provisions, the Act directed the Secretary of the Agency of Commerce and Community Development (ACCD) to address the link between jobs and housing. One of the recommendations of the ACCD Secretary was to "direct the Vermont Housing Council and the ACCD Secretary to explore possible non-student uses of institutional lands owned by the University of Vermont and … explore the possible use of other state lands for housing development." The Task Force strongly urged that this analysis be completed and that the results be disseminated to the public.

In addition, CEDO should identify privately-owned properties for development and redevelopment opportunities and regularly maintain such a list for public use. For example, adaptive reuse of commercial properties and redevelopment of surface parking lots are two options for developing new housing within the City. In addition, the City should engage the owners of these properties in an effort to bring about mutually beneficial housing development.

Tax Policy

Low-income households continue to experience significant property tax burdens even with Act 60. After monthly mortgage payments, property taxes are the single largest housing expense for homeowners - a cost that prevents many households from making the move from renting to owning. The State must reduce its reliance on the property tax as the primary means of funding education. With the notable exception of certain service-enhanced housing developments where the federal government has required the sponsor to obtain property tax exemption, it has been and will continue to be City policy that all affordable housing (regardless of ownership or type of tenure) shall pay property taxes based on fair market value. Appropriate adjustments in value are made to reflect the deed restrictions that ensure perpetual affordability.

College Student Housing Issues

In response to mounting concerns about the negative impacts of such large numbers of students living in certain areas of the city, the City Council passed an ordinance regulating the number of unrelated adults living in one housing unit. Unless the City or the Development Review Board deems a household a "functional family", the zoning ordinance permits no more than four unrelated adults to live in any one housing unit in low and medium density residential zoning districts. Partly due to the enactment of this ordinance, a gradual trend is emerging: landlords of "student" houses in sections of Wards One and Two are beginning to put their properties on the market for reversion back to single family or duplex owner-occupied occupancy.

In addition, the City and the University signed an agreement in November 2000 that says, "UVM agrees to take action designed to increase the number of beds available for students by a total of no less than 400 beds over and above the number of beds that the parties agree were available on the UVM campus fall semester 1999, that is, 3735". The occupancy goal for these beds was fall 2003. As of March 2003, UVM had initiated the following student housing projects:

• Catamount Apartments: 394-bed project received a zoning permit on April 3, 2002, but was appealed by a South Prospect Street resident on April 15, 2002. UVM redesigned the project and submitted material for an amended permit in March 2003 that includes 203 new beds for upper-class and graduate students. Seeking local and Act 250 approval in Spring 2003 and construction beginning in fall 2003. Ready for occupancy by fall 2004, assuming no delays due to permit appeals. 
• Purchase of Trinity College campus adds up to 200 student beds. 
• Reconfiguration of existing residence hall space will provide 125 beds. 
• Construction planned for University Heights will provide up to 850 new beds for undergraduate students; occupancy being planned for 2005/2006. 
• Living/Learning will be removing offices and converting the space to residential, creating up to 40 new beds (tentative estimate).

The total maximum projected on-campus additional beds is 1,375 - this does not include any private sector student housing projects that may be pursued.

Many members of the Task Force believed that UVM's revised housing plans are not in compliance with the 2000 agreement between UVM and the City. At issue is UVM's change of plans to construct 400 beds on Redstone Campus - the revised plan involves building 214 new beds on Redstone Campus, create 100 new beds at the Living and Learning complex through renovation, and lease another 120 beds on Trinity Campus. Although the total number of new beds under the revised plan is greater than 400, many Task Force members believed that UVM should have to meet their obligation through new construction on campus - the 2000 agreement is silent on the question of location for the 400 new beds. The City should insist that UVM fulfill its obligation by creating new, on-campus housing that will appeal to third and fourth year students ready for occupancy by the fall of 2003.

A change to the zoning ordinance allowing accessory apartments (not exceeding 25% of total square feet of a building) under the condition that the owner (person whose name is on the deed) lives in the home might encourage the sale of larger single-family homes in the center city that are currently being rented as group quarters and conversion to owner-occupied homes. Very often, the fair market value of these properties operating as rentals is inflated beyond the price that is attractive for owner-occupants. By allowing the creation of an accessory apartment, the economics of the real estate transaction are more favorable for conversion to owner-occupancy. The city will explore this possibility.

The City's Condominium Conversion ordinance covers any rental property of more than 2 units. There are many properties that have been converted into multiple rental units that would be appropriate for conversion to owner-occupied condominiums. It may encourage homeownership in areas with low homeownership rates if the ordinance is amended to encourage the conversion to condominiums of 3-6 unit rental buildings. State law that governs condo conversion would still apply.

Maintenance and Rehabilitation of the Existing Housing Stock

Current ordinance requires that every rental unit in Burlington receive a Minimum Housing Inspection every three years. Routine inspections are considered to be a better way to ensure safe and decent housing than relying primarily on tenant complaints. According to some tenant advocates, an inspection upon-complaint system results in a low level of compliance, discourages tenants from making formal complaints and increases tenants' fear or landlord retaliation. According to the Code Enforcement Office, current staffing levels and workloads put inspections on a six-year cycle. With over 9,000 rental units in Burlington, the City should inspect 3,000 units per year.

Jeff Kronschnabl conducted a study of the City's Code Enforcement program in September 2002. The report recommends a three-tiered rental inspection process should be developed as follows:

• Tier #1 - Inspect problem properties - top priority.
• Tier #2 - Random inspection of properties that are not inspected by any other government or quasi-governmental entity and/or respond to requests by property owners to complete an inspection. 
• Tier #3 - Random inspection of properties that are inspected by other government entities.

The City Code Enforcement Office should utilize rental registration fees solely for the purposes stated in the Minimum Housing Ordinance,[2] target its inspection program to units not inspected by housing authorities and other public third parties,[3] and issue Interim Certificates/Certificates of Compliance for posting in apartment buildings. Code Enforcement must enforce the requirement that landlords post Certificates of Compliance so that tenants know how their apartment stands in terms of code compliance. Posting a replacement Certificate should cure unauthorized removal of the Certificate, however, and the Landlord should not be cited with a violation if the cure is made.

However, Code Enforcement should not enforce the Life Safety Code as part of minimum housing inspections on existing apartments unless and until the City Council conducts an analysis on the impact of such enforcement on housing affordability and approves such a policy change. The Life Safety code was created to improve the safety of all buildings, with many exceptions and equivalencies allowed for existing buildings. Fire safety officials often argue that most existing buildings can be modified to comply with the Life Safety code without undue financial burden, while owners of rental property and some tenant advocates caution that applying the Life Safety code to existing rental buildings will further increase rents and displace low-income tenants.

Under current practice, tenants are not routinely informed when Code Enforcement has issued a notice of code violation. Most tenants lack the expertise to understand what conditions are legal and what are not, or what the proper remedies may be under local and state law. Unless they know that a landlord has been ordered to make a repair, they cannot assist the inspectors with enforcing compliance. Tenant advocates argue further that tenants need a permanent written record of code violations to support a defense of rent withholding under state law, because without it they are vulnerable to eviction when they exercise their right to withhold rent for habitability violations. Code Enforcement will begin to routinely send tenants notices of violations found during either periodic or complaint-based inspections. This practice will inform tenants of the violations and the order to correct, so that they are able to assist the inspectors in following up with enforcing compliance.

Minimum housing inspection records are subject to the Public Records Act and must be made available for inspection and copying by any citizen who asks for them. Recent developments in the record keeping practices of the Code Enforcement Office have been praised, but those who rely on the records for legal purposes suggest that there is still room for improvement. Specifically, the City should provide certification of such records to citizens to facilitate the use of the records as evidence in court, and all minimum housing inspection compliance orders and Interim Certificates/Certificates of Compliance should be available online.

The City of Burlington has a separate ordinance regulating security deposits. This law limits the total amount of deposit a landlord can charge to no more than one month's rent, regardless of whether it is called a security deposit, a damage deposit or pet deposit. Advocates for both landlords and tenants spoke in favor of amending the ordinance to allow for landlords to charge an additional amount for tenants who wish to have a pet living in their apartment - this measure has the potential of freeing up more apartments for pet-owners by providing landlords with added protection against incurring the cost of repairs that may result from damage caused by pets.

The City should enact an ordinance that requires every rental property placed on the market for sale to be inspected for Minimum Housing Code compliance prior to sale, parallel the City's Time of Sale Energy Ordinance. The seller or buyer could assume responsibility for achieving code compliance, but in either case, Burlington's rental properties would see an incremental gain in compliance at an appropriate time for the cost of compliance to be weighed into the sale price. Obviously, properties that have been routinely maintained are unlikely to see any surprises in the time of sale inspection and compliance process. This ordinance should have an anti-speculation effect in the sale of rental properties. This proposal was included in both the Affordable Housing Task Report of 1986 and in the Rental Housing and Safety Standards Report that was completed for the Vermont Department of Housing and Community Affairs in 1999.

Historically, the City of Burlington has allowed delinquent property tax payers a lengthy period of time before initiating a tax sale. This practice has the unintended effect of accelerating property deterioration and places an unfair burden on property tax payers that are current on their taxes. More timely enforcement of the tax sale provision in State law would send a clear message that delinquent property taxes and the resultant property deterioration that typically accompanies tax delinquencies will not be tolerated by the City of Burlington.

Many resources exist for owner-occupied rehabilitation and the nonprofit housing organizations have access to an array of public funding sources. However, the RePAIR program (operated by the Community & Economic Development Office in Burlington) is one of the state's only rehabilitation program specifically created for private sector landlords. With increased enforcement of minimum housing standards, resources for private sector landlords become especially critical to improving the condition of rental properties. On a regional level, any single municipality or a consortium of municipalities (Burlington is ineligible) could apply for funding through the Vermont Community Development Program (VCDP) to operate a regional rental rehabilitation loan program. Using a combination of VCDP and private loan capital, these resources could be leveraged to provide significant assistance to rental property owners throughout the region.

With the nation's second oldest housing stock, Vermont is one of the states that utilize the federal Rehabilitation Investment Tax Credit (RITC) the most.[4] However, the vast majority of income-producing rental property owners that undertake substantial rehabilitation are unaware of this federal tax incentive. Increased familiarity with the RITC among City code, planning and development officials will result in greater awareness and use of this significant federal incentive for rehabilitation.

Insurance costs

For many years owners of affordable rental properties have faced increased insurance premiums or fewer options among insurance carriers. This problem was exacerbated by the events of September 11, and the situation has reached crisis proportions that justify an investigation by state regulators. Some communities are developing more affordable alternatives to private sector insurance to save on premiums. The City will ask the Vermont Commissioner of Banking, Insurance and Health Care Access to investigate rapidly escalating insurance costs for multi-family rental property and housing designed for people with special needs or to explore more affordable alternatives to private-sector insurance.

Restrictive Building Code and Planning & Zoning Requirements, Impact Fees, and Delays in the Permitting Process

During both the task force meetings and the public hearings, considerable time was spent discussing the barriers to new development that are under the City's control. The list below represents the consensus of the Task Force about the top five barriers to new housing development over which the City has the greatest degree of control, and which the City should address:

• Allowable density does not reflect actual capacity to build; 
• Lack of resources for updating zoning code; 
• Zoning and subdivision ordinances are outdated; 
• Lack of predictable permit process; 
• De novo permit hearings.

The City should also implement the following unrealized recommendations of the Regulatory Review Task Force report of 1990:

• Zoning code should be re-written to make it consistent with current planning objectives; 
• Zero lot line zoning, performance-based zoning and Floor Area Ratio zoning should be evaluated for feasibility in Burlington; 
• The State should allow Burlington to use "Mini-Act 250" in lieu of another review by the District #4 Environmental Commission; 
• Design Advisory Board should be trained not to attempt re-designing projects;
• Development Review Board should adopt more clear and narrow guidelines for when members must recuse themselves for conflicts of interest; 
• DRB should support alternatives to the Fire Marshal's requirements for extra turn-around space or paved lanes around buildings; 
• DPW and the Fire Marshal's Office (FMO) sign-off on initial plans should indicate that substantive issues have been resolved. Final say over differing interpretations should reside with the City Engineer or DPW Director. 
• If a developer installs sprinklers when not required by code to do so, then the Fire impact fee should be reduced.

In response to a trend of conversions of residential buildings to commercial uses and several high profile demolitions of residential structures, the City Council adopted Article 15 of the zoning code in 1988. Among other things, this provision requires "that an owner shall replace any housing units that are demolished or converted to a nonresidential use". The City will evaluate this ordinance to determine if it impedes new housing development or housing rehabilitation.

The City will also evaluate the impact of the Inclusionary Zoning ordinance on housing production and report to the Council. As required by Article 14 (Inclusionary Zoning), the Housing Trust should perform this function every two years. In addition, the City will revise the Inclusionary Zoning ordinance to have a clear formula for determining the payment in lieu of building affordable units. Under the Inclusionary Zoning ordinance, "the development review board at its sole discretion may allow any developer of a covered project that is not located within a waterfront zoning district to comply with the requirements of Sec. 14.1.8 and 14.1.9 (affordability requirements) by constructing inclusionary units on a site other than that on which the covered project is located, subject to the following conditions: The number of inclusionary units to be provided by the developer or by the developer's designee through off-site development shall be no fewer than 1.25 times the number otherwise required by this article…" In the case of only one previous housing development project, the DRB (formerly the Planning Commission) allowed the developer to meet their Inclusionary Zoning requirements by providing a payment in lieu to the City's Housing Trust Fund. The ordinance as currently drafted does not provide a methodology to be used for calculating such payments. The Task Force did not debate the merits of allowing for the "off-site option", but rather recommended that if the City allows for this option, the methodology for calculating payments be clear and transparent.

To date, very few Vermont communities have adopted on the record development review hearings. When a permit is appealed, the case goes to Environmental Court as a de novo hearing - a new hearing in which the judgment of the first hearing (DRB) is suspended and the case proceeds as if it had originated in Environmental Court. This means that when a party appeals a local permit (or an Act 250 permit), the permit application starts over. The information that was filed, the expert testimony offered, the public comments made, and the written record - all of this is ignored and the process begins anew. The additional time, costs and formalities associated with the use of the Municipal Administrative Procedures Act (MAPA) are the main concerns about adopting on the record review, but the Task Force believed that the benefits of on the record review outweigh these concerns. In order to address this problem at the local level, the City should allocate sufficient resources necessary to conduct zoning permit hearings on the record for projects that meet the requirements for Major Impact Review.

Additionally, the City needs to provide annual training to the Development Review, Design Advisory and Conservation Boards to ensure that members fully understand their roles, proper meeting protocols, the rights of all parties and to ensure impartial project review on the part of board members.

Certain city fees added considerable costs to developing housing for very low-income homebuyers. Currently the only city fees that can be waived are impact fees. The City can examine city-imposed fees for such purposes as excavation and sewer connection to determine whether waivers for affordable housing will help encourage more new development of affordable owner-occupied units.

Barriers to rehabilitation include the building code. Existing buildings that were built to comply with an earlier building code or with no code at all are often still safe and sound. Cities across the country are discovering that it is no longer logical that a building which can remain unimproved must be upgraded in numerous respects, many of which provide minimal safety improvement, simply because the owner chooses to improve the building. This approach often discourages owners from making any improvements. The building code, which is designed for new construction, can add unnecessarily to the time and expense of rehabilitating existing buildings because it was not written with existing buildings in mind. For new construction, complying with the building code is a straightforward process, but it is difficult to apply the code rationally and predictably to existing buildings. This is reason for Burlington to develop provisions for existing buildings that are rational and predictable and that facilitate safe and sound rehabilitated structures.

At the state permitting level, there are numerous relevant recommendations included in the Report of the Municipal Planning Review Commission to the Vermont General Assembly (January 2002). Although the Task Force decided not to endorse every one of these recommendations, they did recommend a comprehensive revision to the section of the Vermont Statutes governing the local permit process and how it interacts with Act 250. They also recommended that the State address the following specific housing production barriers:

• Cost and time of appeal;
• Lack of predictable permit process; 
• Permit appeal criteria overly broad and inclusive; 
• Redundancies in the local permit process and Act 250.

The City will advocate for legislative changes governing the rules for appealing zoning and Act 250 permits that: 1) revise the definition of "interested person" as recommended by the Chapter 117 Committee; 2) codify the steps that must be taken prior to filing an appeal; 3) require appellants to participate materially in the development review process, as recommended by the Chapter 117 Committee. The process required of adopting zoning bylaws and municipal development plans is an open and democratic process. Citizens have influence over the adoption of zoning bylaws and municipal development plans through their local elected and appointed officials. For the development review process, public funds are spent identifying interested parties and providing adequate notice for hearings. Filing an appeal of a permit serves an injunction to prevent the developer from continuing their project. As such, the State must raise the burden for appeals. There should be a higher burden of proof that there was a failure of due process and that the appellant was denied their rights under law. These measures would help discourage frivolous permit appeals that are intended to stop development or to compel the developer to modify their project outside of the development review process.

On December 31, 2002, the Vermont Environmental Board (with two members dissenting) issued a sweeping jurisdictional opinion in a case brought by neighbors opposing an 8-unit home ownership project sponsored by Green Mountain Habitat for Humanity and the Burlington Housing Authority. The decision has profound implications for all developers of single family and duplex housing in Vermont. Under the Board's decision in the Green Mountain Habitat for Humanity/Burlington Housing Authority Declaratory Ruling # 406:

• Act 250 jurisdiction will automatically apply to any developer of single-family homes when the developer commences construction of the 10th house built within five years and within a five-mile radius of each other.
• Jurisdiction will apply even though all 10 units were constructed on pre-existing lots and no subdivision was required for any of the lots.
• Jurisdiction applies even though the houses are built on non-contiguous parcels and are spread throughout the 5-mile radius.
• Jurisdiction applies automatically - no showing is required that the 10 houses spread throughout a 5 mile radius will have any impact whatsoever on the environment.
• Under the decision, a developer must obtain a separate Act 250 permit for the 10th house and for each separate house built after house # 10.

The City will seek to amend §6001 by adding a new section 3(D) as follows: "Housing which consists of one or more single family or duplex units located on existing non-contiguous lots shall not be subject to jurisdiction under this chapter, provided that each such unit has received any needed zoning approval by the municipality in which the lot is located and, if applicable, subdivision approval by the municipality and the State."

Finally, the City should explore establishing a local anti-snob zoning ordinance similar to the Massachusetts law (Chapter 774). In 1969, the Massachusetts Legislature adopted "anti-snob zoning" legislation to make it easier to develop affordable housing throughout the state, especially in communities with little low- and moderate-income housing. This law allows the State to override local zoning restrictions in such communities if needed to allow for the development of low- and moderate-income housing.

Regional Issues

There are currently zoning and infrastructure barriers that make development of affordable housing in the suburbs difficult if not impossible. Among the key research findings of the University of Vermont's Community Outreach Partnership Center is "that in other states, regional housing coordination has been mandated by both state officials and supreme courts, in some cases over the strenuous objection of impacted municipalities … However, a voluntary fair share compact between the region's municipalities offers some distinct advantages over the more rigid top-down approaches attempted in other states. Most importantly, it allows towns to design an equitable long-term policy solution that achieves incremental progress without causing unnecessary divisiveness and political backlash." Each member community would agree to take certain threshold measures, e.g.. create a housing trust fund, increase zoning density, waive impact fees, or reserve infrastructure capacity to encourage affordable housing development. Communities that enact residential phasing would not be eligible for membership in such a core compact. The City will continue to work with the Chittenden County Regional Planning Commission (CCRPC) and member communities to develop a workforce housing allocation plan that sets measurable market-rate and affordable housing production goals for every community.

In the absence of voluntary efforts, there are landmark Supreme Court decisions in other states that found the exclusive zoning and permitting laws and procedures of certain municipalities served to perpetuate discrimination against and segregation of people of color and people with low incomes. Because low-income people are found in greater proportions among people with disabilities and people of color, land use policies that prevent the construction of affordable housing have been deemed to have a disparate impact on protected classes under federal and state fair housing law and have been overturned or corrected through court-mandated measures. The CCRPC should conduct an analysis of the potential legal implications of zoning and permitting laws and procedures in Chittenden County, especiaion, a Chittenden County focused fair housing audit of business practices should be conducted to determine the degree and extent of fair housing law violations perpetrated against individuals in several key protected classes.

Many towns in Chittenden County lack adequate staff to develop zoning changes to encourage more affordable housing. CCRPC has professional planners that should develop a set of model zoning bylaws to provide towns with the tools to revise their own zoning to encourage affordable housing. CCRPC should assist all 18-member communities with identifying land appropriate for new housing development and suggesting zoning changes that encourage the development of more affordable housing.

When municipal officials discuss regional distribution of affordable housing, the conversation inevitably leads to the issue of infrastructure - primarily water and sewer capacity. Given that infrastructure capacity is uneven among municipalities, and there is a purported desire and willingness to achieve a more balanced regional distribution of affordable housing, the conditions are ideal for CCRPC to broker inter-municipal agreements to "share" water and sewer capacity. CCRPC should facilitate regional cooperation on issues of water and sewer as a means of developing more affordable housing in communities without adequate infrastructure capacity.

The State should give priority for all capital funding to municipalities that are taking steps to create housing in their communities that meets the needs of households with a range of incomes, including units that are permanently affordable. This would parallel efforts in other states that have offered preferential treatment to encourage municipalities to adopt policies that promote affordable housing. In its 1999 report, the Joint Housing Committee of the Vermont Legislature recommended that the State "provide incentives, such as the authority to levy local option taxes, prioritizing towns for discretionary funds such as CDBG grants, pollution control, water supply, municipal planning funds, loans from the State infrastructure bank and transportation money for public transportation expansion and development, to municipalities to motivate them to adopt local policies such as cluster housing, denser development, inclusionary zoning, and sewer and water capacity set-asides for affordable housing projects that promote affordable housing development." Implementing this recommendation would stimulate substantive changes in municipal planning and development policies throughout our region.

Current State planning law allows regional planning commissions, or the Commissioner of the Department of Housing and Community Affairs (DHCA), to deny any municipal development plan that fails to include an affordable housing component. However, neither the CCRPC nor the DHCA Commissioner has ever rejected a municipal development plan because of a weak housing element. CCRPC should deny any municipal development plan that fails to include an affordable housing provision with specific production goals and every municipality should be urged to conduct a build-out analysis for future housing development.

The Commissioner of DHCA has the statutory responsibility to review municipal plans that have not been submitted for regional approval, specifically for compliance with state affordable housing goals. Such review should take place and, in cases where zoning bylaws are found to be in violation, the Commissioner should have the authority to suspend the municipality's ability to levy impact fees and its eligibility for discretionary state funding programs until the violation is corrected.

At least one Chittenden County municipality has enacted "phasing" of residential construction - a planning tool that limits the number of permits issued to construct new units. Williston's phasing policy limits the number of new units to 80 per year, but allows this limit to be increased for affordable units. If however, Williston issues permits for more than 80 units in any given year, the maximum number of units that can be permitted the following year is reduced by the corresponding amount. This practice has the effect of forcing other communities in the same housing market to absorb an increased share of new residential growth, and limits the ability of the housing development community to respond to changing housing needs. Communities that enact construction phasing should not be allowed to levy impact fees nor should they be eligible for discretionary state funding programs.

In 2001, the Vermont General Assembly passed Act 62, which created the Municipal Planning Review Commission (MPRC). Commonly referred to as the "Chapter 117 Committee", the MPRC was created to review 24 VSA Chapter 117, the regulatory component of the Planning and Development Act, and to recommend changes designed to encourage and promote responsible development of affordable housing throughout Vermont. While the Task Force was not prepared to debate all 38 recommendation of the MPRC, they did agree that most of the recommended changes to Chapter 117 will promote more affordable housing by reducing the amount of time and the potential costs of the local permitting process, and urge the State to place high priority on revising the act to make the development review process more efficient, predictable and fair to developers.

There are currently 275 housing trust funds in cities, counties and states throughout the United States. They are providing at least $750 million each and every year to support critical housing needs. In Burlington, the only municipality in Vermont with its own housing trust fund, the voter-approved tax (one cent on every $100 of property value) will generate $185,000 for fiscal year 2003. If the six largest municipalities in Chittenden County created housing trust funds, it would generate more than $1 million for affordable housing. The Chittenden County Regional Planning Commission (CCRPC) and the Vermont Department of Housing and Community Affairs should promote the concept of municipal housing trust funds as a way to raise funds for low and moderate-income housing..

General

The City can convene annually a focus group of homebuilders, rental property owners and developers to gather feedback on local barriers to housing development. It has been many years since these stakeholders were invited by the City to provide their feedback on local barriers to development. The leadership of the various trade groups that represent these constituencies has already agreed to assist with organizing such discussions.

Page last updated May 13, 2003