Architectural Ordinances: Government Overreach vs. Home Rule

February 22nd, 2019 by 15 Comments

By Benita M. Dodd

Benita Dodd

Housing needs, trends and designs change constantly. Through the years, homebuilders have learned to meet the needs, wants and pocketbooks of homebuyers while innovating and adapting to meet changing standards for safety, land use and environmental protection.

Now, however, elected officials are changing that dynamic. Local governments are stifling innovation, mandating aesthetics and materials, restricting designs and layouts, all while infringing upon the rights of private property owners.

This week (February 20), the Georgia House Agriculture and Consumer Affairs Committee narrowly approved a bill that would prohibit local governments from imposing “architectural ordinances” on new home construction. It must make its way through the Legislature.

Consider the enormous differences among the Sears kit home, Craftsman bungalow, the cedar contemporary and Frank Lloyd Wright construction. It’s American nature to be creative, innovative and diverse. Yesterday’s Craftsman bungalow is today’s revived “trendy.” But today’s mandate could be tomorrow’s outdated eyesore: Government cookie-cutter mandates stifle creativity, raising the cost of construction and the price of new homes.

Homebuilders from Athens to Coweta County to Richmond Hill told legislators how mandates are raising construction costs and reducing the affordability of workforce housing as local governments insert unnecessary requirements into their construction plans.

Even though Consumer Reports magazine notes, “Low price and minimal upkeep make vinyl by far the most popular siding material,” its use is banned by Bryan County, Cherokee County, Brookhaven, Duluth, Dunwoody, Johns Creek, Marietta, Roswell, Sandy Springs, Stockbridge and Sugar Hill.

Woodstock effectively bans vinyl windows. Consumer Reports found, “the material doesn’t guarantee performance and neither does price, and there are excellent and mediocre double-hung wood-frame and vinyl-frame windows.”

The International Association of Certified Home Inspectors notes strong and durable aluminum siding can last 40 years or more. It’s about half the cost of a brick façade. Nevertheless, it is banned in Marietta, Dunwoody, Duluth and Stockbridge. Even more intrusive, Brookhaven requires four-sided brick façades; Stockbridge requires at least 50 percent brick façade.  

In Atlanta, a front-facing garage must be 10 feet back from the front façade; Forsyth County wants that standard, too. In Bryan County, it’s a five-foot setback and the garage can be no wider than 50 percent of the overall house width. Woodstock bans front-facing garages altogether.

In Oconee County, concrete slab foundations are barred; Bryan requires an elevated concrete slab. A raised slab foundation is about 40 percent more expensive than a slab per square foot; a crawl space is about twice as much and a basement costs more than four times as much.

Bryan also requires balconies and covered entrances and requires at least four roof planes visible from the front property line. Angie’s List points out, “The complexity of the roof design may require a little more extra materials. Contractors also charge more for installing shingles to complex roof designs. A large variable in pricing is the roof’s pitch, or slope.”

The architectural “aesthetic” ordinances, from the sublime to the ridiculous, are a government intrusion on private property rights. These mandates, local governments argue, “preserve quality growth” and ensure “quality development.” And, they insist, such home rule is what residents want.

For the community’s police officers, teachers, construction workers and hospitality industry workers, however, a new home becomes inaccessible. Instead of ensuring housing affordability for all comers, local governments then demand subsidized “affordable housing.” To recover the cost of affordable housing mandates, developers raise prices for the rest of their buyers and reduce housing affordability for everyone.

Local government must have a role in zoning. But private property rights must prevail. Local elected officials must not be allowed to continue to foist unwarranted mandates on private property owners and builders to deliberately exclude moderately priced housing for reasons that have nothing to do with public safety, environmental regulations or historic preservation.

The chief economist for the National Association of Realtors, Lawrence Yun, points out that, “With the lower end of the housing market – smaller, moderately priced homes – seeing the worst of the inventory shortage, first-time home buyers who want to enter the market are having difficulty finding a home they can afford.”

Georgia has a reputation for welcoming those seeking an affordable, quality standard of living. The state needs to send a message to local governments that “home rule” begins at home, not in the corridors of City Hall. 

Benita M. Dodd is vice president of the Georgia Public Policy Foundation, an independent, nonprofit think tank that proposes market-oriented approaches to public policy to improve the lives of Georgians. Nothing written here is to be construed as necessarily reflecting the views of the Georgia Public Policy Foundation or as an attempt to aid or hinder the passage of any bill before the U.S. Congress or the Georgia Legislature.

© Georgia Public Policy Foundation (February 22, 2019). Permission to reprint in whole or in part is hereby granted, provided the author and her affiliations are cited.

15 thoughts on “Architectural Ordinances: Government Overreach vs. Home Rule

    1. What do you do for those home buyers who find they are victims of shoddy construction and can’t afford an attorney.? They are the very ones who complain to the counties and ask how could you let this happen?

      1. Houses are inspected and would not pass inspection if they are shoddy, unless the inspector is shoddy. There are building codes that must be abided by.

  1. As written, HB 302, the “Bring Blight to Your City Act”, assaults local over-reach by creating state legislature overreach. That’s the legislative equivalent of two wrongs make a right. Certainly, there’s a more rational means of addressing the issue. The rub with local jurisdictions overreaching is that the ordinances infringe on individual property rights. The rub with HB 302 is that it infringes on individual property rights. By allowing tar paper shacks to be constructed anywhere zoned for single-family and two-family houses and by allowing any exterior building color, the bill potentially reduces the marketability of neighboring houses. Strange as it may seem, some people would not purchase a house if the one next store was painted purple with yellow trim, or any number of “Day Glow” colors.

    Proponents of the bill will ignore the consequences of exterior color and will cite its requirement that a local ordinance is permitted if it is, ” a requirement of applicable state minimum standards.” HB 302 also includes a few other exceptions to the prohibition of local governments from regulating design elements. Left unmentioned is whether a local government can enforce adherence to “state minimum standards” or whether that responsibility is reserved exclusively for state agencies. If the latter case, enforcement will be non-existent as state agencies have neither the personnel nor the desire to be the enforcement arm of 159 counties and 535 incorporated cities.

    The rational means of protecting property owner rights, as opposed to pandering to builders and developers, is to rewrite HB 302 to do just that.

    1. HB 302 addresses new construction standards. To suggest that any builder would construct a “tar paper shack” (even if building codes allowed such a thing) or paint a home purple with day glow trim is so far removed from the realm of common sense that anything you say after that loses all credibility! You have also grossly misrepresented the Bill by suggesting that it would eliminate building codes (“tar paper shack”). You know that is not the case and the Bill has no effect on International Residential Code for One- and Two-Family Dwellings, International Fire Code, International Plumbing Code, International Mechanical Code, International Fuel Gas Code, National Electrical Code or the
      International Energy Conservation Code – all of which local governments can enforce. So it is obvious your intent is to distort the facts and mislead the public. This type gross distortion of the facts and fear mongering (“day glow trim and tar paper shacks”) could be compared to the type of distortion, misrepresentation and outright lies that would be deployed in an effort to assemble a lynch mob.

  2. I have two perspectives- one is I have a client building on the water with a $600,000+ home and it would not pass because they didn’t like the garage set up. They are not in an HOA Community. You should be able to build your home on your own property they way you want to build it.

    Second, it is very obvious that some municipalities are using this to also keep a certain class of people out. I am seeing this in Bryan County . We have a lot of military in the community and they would not be able to the extra $20,0000-$50,000 increase in price due to having to use certain materials, 4 pitches to roof line, garage having to be set back from the home, no vinyl etc.
    Home prices have already increased due to regulations. Most teachers, police officers, military etc. make under $50,000 per year. This increase affects every aspect of the total purchase price. The principle and interest, taxes, homeowners insurance, mortgage insurance and the downpayment are all affected. Running some numbers it is over $100 per month difference for a monthly mortgage. There is a need for housing for these first time homebuyers. Everyone should be able to buy a home not just the more wealthy.

  3. It is unfortunate the people have to band together and rebel to make changes happen to reduced the overbearing regs. In so many cases I have seen, its like the people are ruled by the government rather than vice versa. In Newton County, GA the PZ officers carry pistols and have arrest powers! This is the epitome of “Overreach”!
    The next great battle is going to be for Mini Homes, denied by most PZ codes. Georgia seems to be last in most everything and in this case other states are welcoming this new trend. These Mini Homes give young people, finally, an opportunity to own their own home, build up some equity, and move of their parents’ homes. Many young people with college degrees do not have enough credit to buy expensive housing, they have college loans and are still living with parents.
    This negative assessment of Mini Homes is ill founded. A ‘subdivision’ of Mini Homes can actually bring the City or County more revenue rather than less due to the number that can be placed per acre. Another great advantage to these homes is they can be completely off grid, using solar and never have a utility bill.
    “Over 50” apartments are going up everywhere and for example in Covington, Georgia, it cant be a good thing when the low coat rentals reach 90% of the occupancy of residents. This will be a real number within months upon completion of several new ‘low cost’ rentals. The builders contend, they are safe because they are over 50 complexes. Not so. These rules are never followed as can be seen by a brief tour of the existing housing. You will see extended families living there, with multi generational occupants, even children and babies. And trying to convince me there arent criminals, drug addicts and dealers, child molesters and all the rest over 50 isnt going to happen.
    I have followed some of these atrocities personally. In many cases the PZ is putting pressure on existing homes, many occupied for a lifetime by the resident who may be physically or financially unable to do proper repairs, even painting can be made an issue. One of the reasons this happens is because some big wig wants the property for his or her own purposes. These old people are forced out of their residences by PZ officers.
    In one case I personally followed, a lady was cited in error. She took up the fight and won. Out of retaliation the PZ Nazis returned and wroth her another citation for having a tiny gazebo in her yard, illegally Strangely it had been there almost three years. It was a piece of history saved by this family as it was slated for destruction due to its condition. It was fully restored and quite a beautiful addition to the entire neighborhood as neighbors showed up for this hearing to express their displeasure with the thought it would have to be removed. Fortunately both PZ Boards voted unanimously to reject the PZ Officers’ claims. It seems they were trying to stretch the code section allowing for an accessory, needing no permits or approval with and addition! This lady also won this appeal. Sad part of the story is she is the mother of a special needs child and was forced to pay $150.00 to be heard in her own defenses. Also worthy of note is they came on her and set the appeal date just days before Christmas.
    I can go on and on and on. One other, long story short, developers wanted a large piece of property on Tybee Island, owned for decades by a minister and his wife on which stood their beach house. They went after this widow with everything they had and she lost this treasure to the memory of so many good times.
    It is way past time for the Georgia Legislature to put a stop to these incredulous acts of violence against the public. Limit their powers down to only being able to write these citations for things that are potential risks to surrounding life and property and end this overreach of local government power so often used against the public.

  4. This bill is a wonderful idea.protecting and preserving our heritage is Long overdue.
    Don’t be fooled by the writer. She’s a shill for the building supply and construction industry, which put profits over aesthetics and heritage.

    1. That’s an unfair and uncalled-for characterization, whether about me (Benita Dodd) or the legislation, which is not mine but which you clearly have not read. If you have an argument against the legislation, please state it. If you have evidence that I am a shill for anything, please state that, too.

  5. HB 302 is long overdue. For too many years, local jurisdictions have engaged in scope creep to expand their authority over issues they have no business dealing with. Their charge is simply to provide an overview of life safety, zoning, and environmental issues for property owners. As Mr. Webster has noted, the IBCC series of building codes addresses these issues more than adequately.
    Aesthetics should not be determined by building officials. If you really must have an architectural nanny state, move to a neighborhood with an HOA.
    As for enforcement, the local building officials are responsible for that, regardless of whether they’re using a local, state, or national code. One exception to that is the state Fire Marshall, whose regulations kick in for schools and medical facilities, among other building types. Incidentally, I’ve found the Georgia State Fire Marshall’s personnel much easier to deal with and more responsive than my local county officials.

  6. An interesting smorgasbord of comments, some of which miss the core issue. Without question, some jurisdictions overreach in their ordinances. However, as written HB 302/SB 172 eliminate one problem by creating others. These bills use property owner rights as a red herring. Their true intent is to allow builders and developers to do whatever they want with respect to certain aspects of home construction- with absolutely no oversight. To think that no one would ever build a tar paper shack is as naive as thinking Lehman Brothers would never fail or that GM would be facing bankruptcy. Leaving control of building design elements to builders and developers is like putting Bernie Madoff in control of regulating ponzi schemes.

    Secondly, if these bills were actually about protecting property rights, they would address local government control of building design elements in factory built (manufactured) housing, which serves people with lower incomes particularly well. Apparently, the bills’ sponsors don’t feel that purchasers of manufactured housing deserve the same property rights as purchasers of houses built with conventional methods.Another fallacy in the property rights claim is that the bills leave it as perfectly acceptable for local government zoning ordinances to regulate height, width, area and size of buildings and other structures, the size of yards, courts, and other open spaces, spacing between buildings and structures, lot coverage, lot width, lot area and setbacks.

    Another problem with these ordinances it they are after the fact. People who moved into a neighborhood BECAUSE they viewed local standards as having a positive influence on their property values could find the value of their homes declining because of lowered construction standards of neighboring houses. While the bills references state minimum standard codes, it does no specify the means of assuring compliance with those standards in areas specified as being outside the regulatory purview of local governments. If the legislators sponsoring HB 302/SB 172 are truly concerned with property owner rights, they will reconfigure these bills to do so. I don’t expect that to happen any time soon- if at all.

    1. You seem to be hung up on tar paper shacks, whatever those are. The housing industry, like most segments of our economy, is market driven. Home builders and developers exist by building houses and developing neighborhoods for which there are markets. Frankly, I haven’t heard or read about the public clamoring for tar paper shacks, and I doubt that there is a market for them. So, I’m not too worried about home builders flooding the housing market with them. But if it would help you sleep better at night, I would be okay with adding SECTION I, Paragraph (a)(1)(I) “Oh, and no tar paper shacks.”
      But, beyond that, I don’t understand what it is that you don’t trust home builders to select about the houses they are building. Your objections are vague, at best. What are these “certain aspects of home construction” that you apparently wish to continue to allow local jurisdictions to regulate?
      As has been noted above, the IBCC codes insure that homes are built structurally sound, have adequate light and ventilation, proper heating and cooling, and meet minimum energy efficiency. Zoning regulations, as you noted, basically, regulate how much building you can put on a particular piece of property, so that it’s not over-built. They also provide natural light and air flow between neighboring buildings, as well as access for fire-fighting equipment, if ever required. They also provide a means for controlling surface water runoff and address environmental issues.
      So, for safety, health and environmental issues, I welcome some community standards. But for aesthetics, exterior materials, colors, number and type of windows and doors, I say to my local building inspector, “I got this!”

      1. You’re a builder and don’t know what a “tar paper shack” is? Seriously?

        Although tar paper shacks currently exist, and their future construction would be blessed by HB 302, I thought it was blatantly obvious that “tar paper shack” was an aphorism for a residential building constructed of low quality materials. Apparently not. To put things in a more simplified form, my objections to HB 302/SB 172, is that it’s a red herring sponsored by builder associations. It uses property rights as subterfuge. The true purpose of this legislation is to enable builders to use whatever exterior materials, foundation structure and roof configuration they like, irrespective of quality, durability or suitability. The other points are simply window dressing to divert attention from the true intent.

        “I got this” didn’t work particularly well about 10 years ago when people found their newly built or reconstructed houses uninhabitable because the low-cost, Chinese drywall used by reputable builders belched sulfuric acid. Use continued well after the problem was brought to light. So even though the houses met IBCC codes for structural integrity, they were uninhabitable.

        It’s certainly correct that housing is market driven. And a healthy market exists for the lowest cost housing that can be constructed. You may want houses in your city with siding that falls off in even a mild wind storm, or falls apart in five years, or is as fire resistant as cardboard, but other people may not. Aesthetics achieved through the selection of materials or the exercise of building techniques can easily have implications that extend far beyond appearance.

        If the legislature is truly concerned about property rights, I would expect that bills addressing the issue would arise from demands by groups of rights activists, as opposed to being promoted by self-serving builder/developer associations.

        1. Nope. Not a builder. Just a property owner wanting to maintain my right to build a house without being told what color to paint it, what roof slope to use, where to locate my garage door, or what type and how many windows to use. And yes, I know what a tar paper shack is, but honestly, I’ve never seen one in metro Atlanta, thus my facetious remark. I’ve certainly never seen one built from scratch and know for a fact that requirements of the IBC would not allow it, so I wouldn’t worry about it.
          You might want to crack open a copy of the International Building Code and just peruse the table of contents. You’ll find it addresses not only foundations and structural design, but roof assemblies, exterior materials, interior materials, plumbing fixtures, electrical systems – all those things that make up quality construction. And none of these will be diminished by HB 302.
          Your example of the use of Chinese drywall is, indeed, a sad chapter in the history of the building industry. Brought on by a shortage of building materials after Hurricane Katrina, some homeowners are still feeling the effects of an inferior, imported product.
          But building material quality is not something addressed by HB 302. Nor is it something addressed by local add-on requirements that deal strictly with aesthetics. So, it’s irrelevant to this discussion.
          Again, all HB 302 has done is eliminate needless overreach by local jurisdictions, who are, for the most part, already over worked with simply enforcing the building code.

          1. In fact, HB 302 has done nothing as it failed to pass. But I’m sure it will be back next year, hopefully as a legitimate property rights bill as opposed to being a belated Christmas present to the building industry. I’m not going to hold my breath though. As I’ve stated previously HB 302 was never about property rights, and I don’t expect similar bills in the future to be much different. But they will be served up with plenty of Kool-Aid.

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