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Housing and economic crisis SSRN-id1558026[1] Electronic copy available at: http://ssrn.com/abstract=1558026 1 Affordable Housing, Distribution of Powers and Economic Crisis in the United States Patricia E. Salkin1 Introduction: Affordable Housing in the United States Economic Realities at the Start of the 21st Century The economic crisis in the United States over the last twelve months has caused considerable stress on the affordable housing2 market, ranging from high levels of home foreclosures to mounting challenges for renters and homeowners to maintain their housing. The downturn in the economy has likely worsened an already grim recent report by the Center for Housing Policy that considered the five highest growth occupations—registered nurses, retail salespersons, customer service representatives, food preparation workers and office clerks—and found that based on median annual income, homeownership was unaffordable in the majority of the 201 metro areas studied.3 Moreover, low-income individuals are having an increasingly difficult time in finding affordable housing because, under the previous White House Administration, federal assistance declined and the response of state governments has been uneven.4 In addition, with the aging of the baby-boomers, affordable housing for low-income seniors has been described as a quiet crisis in America.5 The affordable housing crisis in the United States has demanded the attention of President Obama, who has recently announced plans for a financial bailout of the housing finance industry as one step in addressing the problem.6 However, the federal government cannot solve affordable housing challenges in communities across the United States without a strong partnership with state and local governments. Brief History of Federalism and Affordable Housing in the United States State and local governments in the United States have been involved in the regulation of affordable housing since the mid-1800s, when New York State passed the country‘s first tenement building code.7 During the early twentieth century, additional controls such as more restrictive building codes8 and zoning9 were imposed on developers, requiring them to construct safe and habitable dwellings with adequate light, air, and utilities. Throughout the New Deal years, the federal government constructed thousands of units of public housing,10 and from the 1950‘s to the 1970‘s, the federal government funded state and local efforts to clear slum housing and build newer, more sanitary residences.11 The U.S. Fair Housing Act, passed in 1968, took an important step in ensuring housing availability by prohibiting discrimination in housing sales, rentals, and other real estate transactions.12 The Act was amended in 1988,13 so that it now bars discrimination on the basis of race, color, religion, gender, familial status and national origin. Not all of these efforts were successful in increasing the available stock of safe and decent affordable housing, but their failures have informed current affordable housing policies. Today, most of the federal affordable housing programs are decentralized funding programs, with the government in Washington, D.C. providing flexible funding to state and local Electronic copy available at: http://ssrn.com/abstract=1558026 2 governments for the construction and rehabilitation of public and affordable housing.14 State and local governments not only play a significant role in determining how these monies will be spent, they have also developed their own policies and programs to ensure the production of adequate housing for people at all income levels. With fifty states, the approaches are varied, with some states adopting aggressive affordable housing programs for one or more segments of the populations, and other states giving little more than ―lip service‖ about affordable housing. Local governments, however, are best suited to immediately address affordable housing challenges through the implementation of land use and regulatory controls. This paper begins with a discussion of seven different state-level approaches to addressing affordable housing. This is followed by a focus on innovative solutions that may be offered by local governments through the implementation of available land use and community development tools, and concludes with the observation that although meeting the affordable housing needs of all Americans requires cooperation and collaboration between all levels of government, local governments are best able to quickly respond to the immediate community-based housing challenges. Survey of Key State-level Affordable Housing Programs While most states offer modest funding/grant programs to enable non-profits and sometimes local governments to develop and maintain a low-income affordable housing stock, a number of states have adopted more comprehensive affordable housing programs, often mandating that local governments ensure the availability of affordable housing in their communities and regions. New Jersey New Jersey‘s affordable housing program began in the 1970‘s, not by the executive or legislative branches of government, but as a result of a landmark decision by the New Jersey Supreme Court.15 This opinion, and one that followed it eight years later, interpreted New Jersey‘s constitution to mandate a more stringent standard for affordable housing on the state level than is required at the federal level.16 Mount Laurel is a township located about 10 miles from Philadelphia, and when the litigation began in the early 1970‘s, it was a developing community with large tracts of vacant and developable land. The township zoning ordinance permitted single-family homes on large lots, but none of the township‘s land was zoned for multiple family housing. In the first Mount Laurel decision, the New Jersey Supreme Court invalidated the ordinance, finding that although it was intended to keep down local property taxes—a permissible concern to be taken into account by the township—it effectively excluded low and moderate-income families from the municipality. As the court explained, ―every such [developing] municipality must, by its land use regulations, presumptively make realistically possible an appropriate variety and choice of housing. More specifically, presumptively it cannot foreclose the opportunity of the classes of people mentioned for low and moderate income housing and in its regulations must affirmatively afford that opportunity, at least to the extent of the municipality's fair share of the present and prospective regional 3 need. These obligations must be met unless the particular municipality can sustain the heavy burden of demonstrating peculiar circumstances which dictate that it should not be required so to do.‖17 (emphasis added) Mount Laurel I proved difficult to implement, however, and there was ―widespread noncompliance.‖18 The second Mount Laurel decision was intended to clarify the doctrine and provide guidance for its implementation to help prevent further noncompliance. In a lengthy and detailed decision, the court carefully and painstakingly set forth every requirement, defining ―fair share‖ with a series of tests and elements. As the court explained, determining a municipality‘s fair share was ―the most troublesome issue‖ of the first opinion, as it required the resolution of three difficult questions: ―identifying the relevant region, determining its present and prospective housing needs, and allocating those needs to the municipality or municipalities involved. Each of these issues produces a morass of facts, facts, statistics, projections, theories and opinions sufficient to discourage even the staunchest supporters of Mount Laurel.‖ The court‘s solution was to require all future Mount Laurel cases to be heard by only three judges, and to incorporate standards included in the existing State Development Guide Plan. The court also offered some suggestions for drawing up fair share formulas.19 The Mount Laurel II court also affirmed the availability of a ―builder‘s remedy,‖ holding that if ―a developer succeeds in Mount Laurel litigation and proposes a project providing a substantial amount of lower income housing, a builder's remedy should be granted unless the municipality establishes that because of environmental or other substantial planning concerns, the plaintiff's proposed project is clearly contrary to sound land use planning.‖20 This led to the filing of more than 100 lawsuits against New Jersey municipalities, and the legislature responded by enacting affordable housing legislation in 1985.21 The New Jersey Fair Housing Act required all of the state‘s municipalities to draft affordable housing plans, and it also created the Council on Affordable Housing (COAH) to implement the legislation and provide guidelines for communities on how to meet the requirements.22 COAH is authorized to ―(1) define housing regions, (2) estimate low and moderate income housing needs, (3) set criteria and guidelines for municipalities to determine and address their own fair share numbers and then (4) review and approve housing elements/fair share plans and regional contribution agreements (RCAs) for municipalities.‖23 Municipalities can petition COAH to approve their housing plans, which protects them from any builder‘s remedy lawsuits pending the COAH review and for 10 years after their approval.24 As part of this process, COAH may, among other things: assess whether a municipality‘s ordinances satisfy the Mount Laurel rules; it may require land to be set aside and reserved for affordable housing; and it may change a municipality‘s fair share requirement.25 Massachusetts In 1969 the Commonwealth of Massachusetts enacted ―Chapter 40B‖ or ―anti-snob‖ legislation ―to provide much-needed housing for returning Vietnam veterans, and to break down the barriers erected by the suburbs to the construction of affordable sale and rental housing.‖26 Although it faces some criticisms, it has been credited with enabling the construction of a significant amount of affordable housing.27 4 Chapter 40B allows qualified developers, including public agencies, nonprofits, and limited dividend companies, to obtain streamlined development review.28 Instead of filing applications with various local boards, an affordable housing developer applies for a comprehensive permit from the zoning board of appeals, which may override any applicable local laws.29 If the permit is denied, or if it is approved in such a way as to make the project ―uneconomic,‖ an appeal can be taken to the Housing Appeals Committee (HAC) to determine whether the decision was consistent with local needs.30 ―HAC must decide whether the need for low or moderate income housing in a town outweighs the valid planning objections to the proposal, such as health, site design, and space. … If HAC finds that the decision of the local board is not justified it may direct the local board to issue a comprehensive permit.‖31 Where at least 10% of a municipality‘s housing stock is affordable, the municipality is considered to have met its affordable housing obligation, and in such cases, the zoning board may deny a 40B permit and the HAC may not reverse its decision.32 ―However, achievement of the ten per cent statutory minimum does not deprive a local zoning board of appeals of the ability to grant additional comprehensive permits to developers seeking to construct low or moderate income housing.‖33 Connecticut In 1989, Connecticut enacted the Affordable Housing Land Use Appeals Procedure law in an effort to remedy the state‘s housing problems. The legislation was ―premised on the idea that zoning regulation of affordable housing should be simplified to reduce the number of generalized or indeterminate reasons that could be used to defeat a proposal to build affordable housing, reasons such as that the development would adversely affect community character, or that it was unsuitable at the location proposed, or that it was incompatible with the neighborhood.‖34 The statute was patterned after Massachusetts‘ 40B, rather than after New Jersey‘s COAH legislation, in order to avoid ―the difficult question of defining regional boundaries, overall housing needs, and fair share obligations."35 The Connecticut affordable housing law provides a streamlined appeals process for publicly funded affordable housing projects and residential projects that include at least 30% low-or moderate-income housing.36 Under the law, an affordable housing developer can appeal the denial of a permit or rezoning application to build low income housing, and the judge must determine whether the municipality‘s reasons for the denial outweigh the need for affordable housing.37 The burden is on the municipality to prove that the denial is necessary to protect a substantial interest in public health or safety and that no reasonable changes can be made to the application to adequately mitigate the negative impacts.38 However, towns in which at least 10% of the housing is already affordable are exempt from the burden shifting law.39 The courts in Connecticut have held that specific findings of fact and not mere speculation are needed to prove that the benefits of an affordable housing project are outweighed by public concerns.40 However, the courts have also been willing to accept a number of planning policies and goals as sufficient to outweigh the need for affordable housing, including interests such as open space, flood plain and steep slope planning, erosion, and the adequate availability of public services.41 5 California Municipalities in California are required to include a housing element in their comprehensive plans, and as part of that element, each local government must develop approaches to ensure that it will fulfill regional and local housing needs for people at all income levels.42 Regional housing needs are determined by a state agency, the Department of Housing and Community development, and each municipality‘s local share of the regional housing need is set by the regional Council of Government.43 Although the Department of Housing and Community Development can approve local housing plans, ―the consequences for noncompliance are considered minimal, especially for localities with little desire for growth.‖44 Another California law requires specific findings to be made before a local government can reduce a residential parcel‘s permitted density,45 and, under the state Housing Accountability Act, municipalities must make detailed, written findings if they reject an application to build affordable housing.46 Additionally, certain multi-family residential projects are exempt from conditional use requirements if they meet specified affordability requirements.47 Density bonuses are also available for affordable housing projects under state law.48 New Hampshire In 1991, New Hampshire‘s Supreme Court determined that the state‘s planning and zoning statutes called for every municipality to provide a reasonable and realistic opportunity for the development of housing that is affordable to low and moderate income households, and particularly for the development of multi-family structures.49 However, as has been the case in other states, municipalities failed to implement the decision. Therefore, in 2008, the State Legislature enacted a law (effective July 1, 2009) that requires all municipalities to provide reasonable and realistic opportunities for the development of workforce housing, including rental housing.50 To determine if such opportunities exist, the collective impact of all local land use regulations must be considered, and affordable housing of some type must be allowed in a majority of land areas where residential uses are permitted (but not necessarily multi-family in a majority of such areas).51 Recognizing that some municipalities have already done what is necessary under this law, the existing housing stock of a community is to be accounted for to determine if a municipality is providing its ―fair share‖ of current and reasonably foreseeable regional need for workforce housing.52 Importantly, reasonable restrictions may still be imposed for environmental protection, water supply, sanitary disposal, traffic safety, and fire and life safety protection.53 The New Hampshire law also significantly mitigates the cost of litigation by providing an accelerated appeal mechanism. If a developer proposes to create affordable housing that meets the statute‘s definitions and requirements and the local board reviewing the proposal either denies the application or imposes conditions on it that would have an unreasonable financial burden, the developer can petition the superior court for review, and the court must conduct a hearing on the merits within six months.54 As a means of addressing exclusionary municipal land 6 use regulations, the court will be able to order the ―builder‘s remedy,‖ allowing the developer to proceed without further local review in situations that call for such an award.55 The law also provides a series of definitions, including ones for ―affordability‖ (30% cost burden), ―workforce housing‖ (affordable for renters at 60% area median income or owners at 100% area median income), multi-family housing (5 or more units per structure), and ―reasonable and realistic opportunities‖ (addressing the economic viability of a proposal).56 Rhode Island Recognizing that ―the slowness and uncertainty of securing permits and regulatory approval from state agencies can impair the viability of affordable housing development, make such development more expensive, and can jeopardize federal and other monies,‖ Rhode Island has authorized developers of affordable housing to request that a project be classified as a project of critical housing concern.57 The request must contain a description of how the project is consistent with applicable provisions of state plans. If the state determines the project is a housing project of critical concern, a certificate is issued.58 The developer will then file the certificate with the various state agencies that have permitting authority over the project.59 Expedited deadlines are included for state actions on applications for projects of critical concern;60 and the housing resources commission is tasked with rule-making authority to implement this new law.61 New York In August, Governor David Paterson signed into law the Long Island Workforce Housing Program.62 Introduced by Majority Leader Dean Skelos, the new law which took effect on January 1, 2009, provides that when a developer makes an application to a local government to build five or more residential units in Nassau or Suffolk counties, the local government shall require one of the following, in exchange for a density bonus of at least ten percent, or other incentives: –The set aside of at least ten percent of those units for ―affordable workforce housing,‖ defined as housing for individuals or families at or below 130 percent of Long Island‘s median income; or –The construction of the required affordable units on other land within the same municipality; or –The payment of a fee for each affordable unit that the developer would have been required to construct. The fee shall be equal to two times the median income for a family of four on Long Island. In cases where the fee exceeds the appraised value of the building lot, the fee shall equal the appraised value of the lot.63 The fees collected by the local government may be used in one of the following ways: –The local government may establish a trust fund to be used for the construction of affordable housing, the purchase of land for the purpose of providing affordable housing, or rehabilitating existing structures to provide affordable housing; or 7 –The local government may turn the funds over to another local government within the same county, subject to an intermunicipal agreement, to be used in the same manner described above; or –The local government may turn the funds over to the Long Island Housing Partnership. Fifty percent of this money must be used in the same manner described above; the remaining fifty percent must be used, through the creation of a revolving loan fund, to provide down payment assistance to qualified homebuyers who are eligible for the partnership‘s employer-assistance housing benefit program. Further, the law provides that all units created under this act shall remain affordable for subsequent purchasers.64 Local Government Solutions to the Affordable Housing Problem In the United States, local governments are vested with authority from the states to engage in community planning and to enact zoning and other land use controls to implement these comprehensive land use plans. Over the years, studies have suggested that housing affordability has been negatively impacted as a result of various local land use controls,65 which at times have resulted in ―exclusionary zoning‖ (generally referring to land use policies that disfavor affordable housing, such as ordinances that devote more land than necessary to nonresidential uses and ordinances that limit residential uses to low densities). However, the fact remains that many local governments have effectively utilized land use regulatory techniques to proactively and aggressively provide for affordable housing. What follows is a survey of some ―inclusionary zoning‖ techniques that can be and have been used to promote affordable housing without requiring direct municipal spending. Comprehensive Plans A comprehensive land use plan is essentially an articulation of a community‘s shared vision for its future growth and development.66 Comprehensive plans can influence patterns of development, and they are the first place where the need for affordable housing should be assessed and discussed. These policies set the stage for the development of local affordable housing programs and ordinances, and they will support the validity of such initiatives if they are challenged in court.67 Including affordable housing in the comprehensive plan is also important because local governments must consider it in relation to other planning priorities. Without this type of planning process, state-mandated fair share requirements and local inclusionary zoning ordinances may push affordable housing developments to land not suitable for development.68 Many states require comprehensive plans to contain a general housing element, and housing affordability may be discussed within this framework.69 While states can make a policy statement by specifically encouraging the inclusion of affordable housing goals in local comprehensive plans, local governments need not wait for such state action, as this is impliedly an appropriate topic for comprehensive plans. 8 Local governments across the United States have begun to address affordable housing in their general plans, often recommending strategies for increasing affordable housing production, preserving existing affordable housing, fostering homeownership among low and moderate income families, integrating low income housing into mixed income communities, and increasing the amount of housing available at particular affordability levels (e.g., for workforce housing or housing for very-low income families). Some plans include inventories of existing low-cost housing and goals for the production of a specific number of new units over a defined period of time.70 Inclusionary Zoning Inclusionary zoning, similar to state-level fair share programs, is the practice of requiring or incentivizing the construction of affordable housing as part of new residential development.71 Inclusionary zoning ordinances may be mandatory or voluntary, and they may incorporate incentives such as waivers of zoning requirements (density, setbacks, height, open space), expedited permitting, local tax abatements, waivers of permit fees, reduced parking requirements, and infrastructure subsidies.72 Mandatory affordable housing set-asides are more controversial than incentive-based programs, but they are more effective in producing affordable housing.73 Mandatory inclusionary housing regulations apply to new developments over a certain size or containing a certain number of market rate housing units (often as few as 5), and they generally impose a requirement that 10-20% of the units produced be affordable. Affordability levels are defined in relation to the area median income (AMI), and inclusionary zoning ordinances may impose lower quotas for developments that contain more housing units priced for very low income families. Many inclusionary zoning ordinances require affordable units to be similar in size and appearance to market rate units, and to be dispersed among them, so as to foster economic integration. Once construction is complete, inclusionary programs use controls like deed restrictions and covenants to keep prices affordable for a specified period, normally thirty years or so.74 While on-site affordable housing construction is preferred, most inclusionary zoning ordinances provide alternative methods of compliance in order to avoid constitutional infirmities.75 Alternatives may include allowing the construction of off-site affordable housing, permitting payments to be made in lieu of on-site affordable housing, and making it possible to obtain waivers from the inclusionary zoning. Inclusionary zoning requirements have been adopted in more than 300 jurisdictions across the United States and have been successful in spurring the construction of thousands of units of affordable housing.76 They are appealing to local governments because they enlist the private sector in the development of affordable housing, but critics have argued that the economics of inclusionary housing do not add up. While some commentators point out that inclusionary zoning cannot solve the low income housing problem by itself,77 others have contended that inclusionary zoning in fact discourages development and increases the cost of market rate housing.78 9 Voluntary Inclusionary Zoning (Incentive Zoning) Through incentive zoning, developers may obtain waivers from particular zoning provisions (usually density, height or use restrictions) in exchange for providing certain community amenities identified in the local incentive zoning ordinance.79 When a local government conditions incentives on the provision of affordable housing, the incentive zoning operates as a voluntary inclusionary zoning program. A number of states have enacted incentive zoning statutes, and some of them specifically promote the goal of affordable housing construction. In California, for example, local governments are required to offer incentives for affordable housing developments. Incentives may include relaxed site or design standards, approval of mixed-use zoning, or other regulatory incentives. They are to be awarded on a sliding scale, based on the percentage of affordable housing to be included in a development and the levels of affordability,80 In other states, such as Rhode Island81 and Maryland,82 state incentive zoning laws do not specifically reference affordable housing, but simply authorize local governments to use zoning bonus programs. As noted above, voluntary inclusionary zoning programs are not as effective as mandatory ordinances. They receive less opposition from developers, however, and thus may be more politically feasible to enact than mandatory measures. Moreover, zoning ordinances that provide large enough incentives for the construction of affordable housing can be as successful as mandatory programs. And in some municipalities, voluntary programs that have been marketed especially rigorously have been quite successful.83 Zoning to Permit Accessory Apartments Accessory apartments are complete living spaces that have been built into single-family homes. They are affordable, and they provide an especially attractive housing opportunity for intergenerational living arrangements because they allow proximity but maintain privacy.84 Moreover, they preserve the single-family appearance of residential neighborhoods and require no additional municipal funding for services or infrastructure.85 Local governments can address various design, density, and health and safety issues by imposing special permit requirements on accessory units.86 For example, Northampton, Massachusetts, allows accessory ―in-law apartments‖ so long as: the apartment contains a separate kitchen and bath; the owners occupy either the primary or accessory unit; additional entrances are not built on the front of the house; the apartment is less than 900 square feet in size; and no more than three people live in the accessory unit.87 The Town of Huntington, New York, has similar requirements for accessory apartment permits, and also requires a minimum lot size of 7,500 square feet and a minimum lot frontage of 75 feet.88 Accessory units that are constructed as detached guest cottages (also known as ―granny flats‖ or ―elder cottages‖) may cause different planning concerns. Some municipalities require the occupant of a guest cottage to be either handicapped or meet a minimum age requirement.89 Additionally, some guest cottage ordinances require the occupant of the cottage be a relative of 10 the residents in the principal dwelling.90 Other guest cottage zoning regulations include specific design and location requirements. For example, the Town of Ithaca, New York, prohibits elder cottages from being placed in front yards.91 Some state laws encourage the use of accessory apartments. A Vermont statute, for example, requires local governments to allow accessory apartments, so long as the units have separate sleeping quarters, kitchens and baths, take up no more than 30% of the entire dwelling and the property have sufficient wastewater capacity.92 Under the Second Residential Unit law, local governments in California are also required to permit accessory apartments on single-family residential lots.93 Florida, while not requiring accessory apartments to be permitted, specifically authorizes municipalities to approve accessory apartment ordinances. Any accessory units built under such an ordinance can be counted toward a municipality‘s affordable housing component of its comprehensive plan.94 Cluster Zoning Cluster development ordinances give municipalities the ability to allow developers to exceed density restrictions if the developer preserves areas of open space by designing the development‘s units to be ―clustered‖ on only a small portion of the property. Cluster development is preferable to conventional subdivision development because of its ability to preserve large areas of open space and habitat, but it can also help to bring the price of housing down by limiting infrastructure demands and increasing the number of units that the developer can build.95 In Massachusetts, cluster zoning has been reported to spur the development of smaller, more modestly priced homes.96 States can encourage the use of clustering by authorizing local governments to enact cluster development ordinances,97 by providing technical guidance,98 and through incentives.99 Although cluster development has been used as a planning tool since the early twentieth century, rural and suburban residential cluster developments have become increasingly popular in recent years, and they have garnered the name ―conservation subdivision.‖100 Zoning to Encourage Manufactured Housing In addition to accessory apartments and guest cottages, permanent manufactured housing may present an affordable housing option. It has been estimated that manufactured units, which are freestanding and built on permanent chasses, are 20-30% less expensive than site built homes. Manufactured housing units ―also offer families opportunities to build connections with the community. Unlike apartments, [manufactured housing units] generally provide the privacy and amenities usually associated with conventional home ownership.‖101 Manufactured housing is often perceived negatively and many communities attempt to exclude it through zoning regulations or confine it to special ―trailer park districts.‖102 However, since a manufactured housing code was developed by the U.S. Department of Housing and Urban Development in 1976, the quality and appearance of manufactured housing has greatly 11 improved. For this reason, many people have called for the repeal of manufactured housing prohibitions. The American Planning Association, for example, has recommended that ―[m]anufactured homes should be allowed as a type of housing accommodated in residential zoning districts.... Issues of design and compatibility arising from manufactured housing zoning parity should be addressed for all forms of housing and should be addressed through generally accepted standards of planning practice.‖103 Many states have adopted laws requiring manufactured homes to be permitted in single-family zoning districts as a permitted use.104 In states that have not yet required parity, municipalities can amend their zoning regulations to permit manufactured housing in residential districts.105 Conclusion The impact of the economic recession in the United States continues to be a challenge for many aspects of social policy, including affordable housing. While other areas of public policy may require significant investments of federal dollars (e.g., unemployment benefits and health care), significant inroads can be made in the provision of affordable housing through state and local laws designed to support these goals. No doubt, fiscal resources from federal and state governments are needed and can further incentivize both the availability and production of affordable housing units; however, local governments, possess authority through planning and zoning enabling acts to proactively promote the provision of affordable housing within their smaller jurisdictions. Community-based planning and land use regulation is perhaps the most effective technique to ensure an appropriate diversity of affordable housing stock to meet local needs. References AMERICAN PLANNING ASSOCIATION, ―Policy Guide on Factory Built Housing,‖ adopted March 11, 2001, from http://www.planning.org/poli cy/guides/adopted/factoryhousing.htm. BASOLO, V. 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MECK, S., General Editor, Growing Smart Legislative Guidebook: Model Statutes for Planning and the Management of Change, American Planning Association, 2002. NATIONAL ASSOCIATION OF HOME BUILDERS, ―Housing Affordability Surges at Year-End 2008,‖ February 19, 2009, from http://www.nahb.org/news_details.aspx?sectionID=135&newsID=8665. NATIONAL LOW-INCOME HOUSING CORPORATION, ―Housing Assistance for Low-Income Households: States Do Not Fill the Gap,‖ a follow-up to ―A Patchwork of Small Measures: A 2001 Report on State Funded Rental Assistance, October 2008, from http://www.nlihc.org/doc/PATCHWORK.pdf. NATURAL LANDS TRUST, ―Growing Greener: Conservation by Design,‖ 2001, from http://www.natlands.org/uploads/document_33200515638.pdf. NEW YORK CITY DEPARTMENT OF CITY PLANNING, About NYC Zoning, from http://www.nyc.gov/html/zone/z onehis.shtml. PADILLA, L., ―Reflections on Inclusionary Housing and a Renewed Look Look at its Viability,‖ 23 Hofstra Law Review 539, 553-554 (1995). POLICYLINK.ORG, ―Affordable Housing Development 101, Affordable for Whom?,‖ from http://www.policylink.info/EDTK/AH101/What.html. PHILLIPS, M. AND SIMON, R., ―Mortgage Bailout to Aid 1 in 9 U.S. Homeowners,‖ Wall Street Journal, March 5, 2009, from http://online.wsj.com/article/SB123617623602129441.html. POWELL, B., ―The Economics of Inclusionary Zoning Reclaimed: How Effective Are Price Controls?,‖ 33 Florida State University Law Review, 471, 475 (2005). PRITCHETT, W., ―The ‗Public Menace‘ of Blight: Urban Renewal and the Private Uses of Eminent Domain,‖ 21 Yale Law & Policy Review 1 (2003). REENSTIEMA, E., ―One Reason to Like Anti-Snob Zoning,‖ The Boston Globe, Aug. 13, 2007, from http://www.bosto.com/realestate/news/articles/2007/08/13/one_reason_to_like_anti_snob_zoning/. ROHAN, P., Zoning and Land Use Controls, New York: Matthew Bender. RUSK, D., ―Nine Lessons for Inclusionary Zoning,‖ October 5, 2005, from http://www.gamaliel.org/DavidRusk/keynote%2010-5-05.pdf. 14 SALKIN, P., ―Act Now: Accessory Dwelling Units Can Aid in Intergenerational Housing Crisis,‖ no. 1, vol. 1 Capital Commons Quarterly 13, April 2007, from http://www.albanyguardiansociety.org/PDF/1 -CCQ-4-07-web2.pdf. SALKIN, P., Editor, American Law of Zoning (5th edition), St. Paul, MN: Thomson/West, 2008. SALKIN, P., ―A Quiet Crisis in America: Meeting the Affordable Housing Needs of the Invisible Low-Income Healthy Seniors,‖ Georgetown Journal on Poverty Law & Policy (forthcoming 2009). SCHMITZ, A., ―Promoting the Promise Manufactured Homes Provide for Affordable Housing,‖ 13 Journal of Affordable Housing 384, Spring 2004, from http://lawweb.colorado.edu/profiles/pubpdfs/schmitz/SchmitzAHCDL.pdf. SCHUETZ, J., MELTZER, R., AND BEEN, V., ―31 Flavors of Inclusionary Zoning: Comparing Policies from San Francisco, Washington, DC and Suburban Boston,‖ Working Paper, September 2008, from http://furmancenter.org/files/31flavorsofIZ9-9- 08.pdf. SPAN, H., ―How the Courts Should Fight Exclusionary Zoning,‖ 32 Seton Hall Law Review 1, 82 (2001). STATE OF NEW JERSEY DEPARTMENT OF COMMUNITY AFFAIRS, ―COAH Regulations & Statutes,‖ from http://www.state.nj.us/dca/affiliates/coah/regulations/. TALBERT, C., AND COSTA, N., ―Inclusionary Housing Programs: Local Governments Respond to California‘s Housing Crisis,‖ 30 Boston College Environmental Affairs Law Review 567 (2003). TONDRO, T., ―Connecticut's Affordable Housing Appeals Statute: After Ten Years of Hope, Why Only Middling Results?,‖ 23 Western New England Law Review, 115, 116 (2001). U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT, ―Housing Choice Voucher Program, from http://www.hud.gov/offices/pih/programs/hcv/about/fact_sheet.cfm; ―HOPE VI,‖ from http://www.hud.gov/offices/pih/programs/ph/hope6/about/; ―Community Development Block Grant program,‖ from http://www.hud.gov/offices/cpd/communitydevelopment/programs/; and ―Low Income Housing Tax Credit program,‖ from http://www.hud.gov/offices/cpd/affordablehousing/training/web/lihtc/basics/allocating.cfm. U.S. DEPT. OF OF HOUSING AND URBAN DEVELOPMENT, Office of Policy Development and Research, ―Study of Subdivision Requirements as a Regulatory Barrier,‖ April 2007, from http://www.huduser.org/Publications/pdf/subdiv_report.pdf. WHEELER, M., ―Regional Consensus on Affordable Housing: Yes in My Backyard?,‖ 12 15 Journal of Planning Education and Research 139 (1993). WISH, N. AND EISDORFER, S., ―The Impact of Mount Laurel Initiatives: An Analysis of the Characteristics of Applicants and Occupants,‖ 27 Seton Hall Law Review 1268, 1270-1271 (1997). WITTEN, J., ―Adult Supervision Required: The Commonwealth of Massachusetts's Reckless Adventures With Affordable Housing and the Anti-Snob Zoning Act,‖ 35 Boston College Environmental Affairs Law Review, 217, 222-223 (2008). 1 psalk@albanylaw.edu ; www.albanylaw.edu/glc ; http://lawoftheland.albanylaw.edu/. The author thanks Amy Lavine, Esq., staff attorney at the Government Law Center, and Albany Law School student Jessica Ansert ‘09 for their assistance with this paper. 2 The phrase ―affordable housing‖ has different meanings. One commonly accepted concept is that for housing to be affordable, the cost should not exceed 30% of the household income. Families are considered low-income if they earn below 80% of the area median income. See PolicyLink, Affordable Housing Development 101, Affordable For Whom?, available at http://www.policylink.info/EDTK/AH101/What.html (accessed September 1, 2009). 3 Center for Housing Policy, ―Paycheck to Paycheck: Wages and Cost of Housing in America,‖ (2008), available at http://www.nhc.org/chp/p2p (accessed September 2, 2009). 4 See National Low-Income Housing Corporation, Housing Assistance for Low-Income Households: States Do Not Fill the Gap (A Follow-Up to A Patchwork of Small Measures: A 2001 Report on State Funded Rental Assistance) (October 2008), available at http://www.nlihc.org/doc/PATCHWORK.pdf (accessed September 2, 2009). Further, it should be noted that while the National Association of Home Builders claims that housing affordability surged for families earning the national median income of $61,500 (National Association of Home Builders, Housing Affordability Surges at Year-End 2008, Feb. 19, 2009, http://www.nahb.org/news_details.aspx?sectionID=135&newsID=8665) (accessed September 2, 2009), this income level is simply not considered ―affordable‖ to low-income individuals. 5 See Patricia E. Salkin, A Quiet Crisis in America: Meeting the Affordable Housing Needs of the Invisible Low-Income Healthy Seniors, 16 Georgetown J. on Poverty L. & Pol‘y ___ (forthcoming 2009) (―Providing housing for low-income seniors presents a particular challenge. Many seniors are forced to live on a small fixed income—drawing limited amounts from social security and possibly pensions—and for those who do not have sufficient savings, the costs of housing can be difficult to sustain. Even before the current national fiscal crisis, many seniors had been experiencing difficulties in staying in the homes they owned and occupied for decades due to rising costs associated with property taxes, energy, accessibility modifications, routine maintenance and repairs.‖) 6 Michael Phillips and Ruth Simon, Mortgage Bailout to Aid 1 in 9 U.S. Homeowners, Wall Street Journal, Mar. 5, 2009, available at http://online.wsj.com/article/SB123617623602129441.html (accessed September 2, 2009). 7 New York Tenement House Act of 1867. 8 New York City, for example, enacted a new Tenement House Act in 1901. See New York City Dept. of City Planning, About NYC Zoning, http://www.nyc.gov/html/dcp/html/zone/zonehis.shtml (accessed September 2, 2009). 9 The country‘s first zoning code was enacted in New York City in 1916. See New York City Dept. of City Planning, About NYC Zoning, http://www.nyc.gov/html/dcp/html/zone/zonehis.shtml (accessed September 2, 2009). In 1926, the Supreme Court held that zoning was constitutional. Euclid v. Ambler Realty Co., 272 U.S. 365 (1926). Within a short time, the technique of dividing cities into districts to separate uses had become popular and was practiced around the country. 10 See Paul R. Lusignan, Public Housing in the United States, 1933-1949, Cultural Resource Management (National Park Service) (2002). 11 See, e.g., Berman v. Parker, 348 U.S. 26 (1954); Wendell E. Pritchett, The “Public Menace” of Blight: Urban Renewal and the Private Uses of Eminent Domain, 21 Yale L. & Pol‘y Rev. 1 (2003). 12 P.L. 90-284, 82 Stat. 73, codified 42 U.S.C. §§ 3601 et seq. 16 13 P.L. 100-430, 102 Stat. 1622. 14 The U.S. Department of Housing and Urban Development oversees most of these programs. Some of the most important federal initiatives include: the Housing Choice Voucher Program, http://www.hud.gov/offices/pih/programs/hcv/about/fact_sheet.cfm; HOPE VI, http://www.hud.gov/offices/pih/programs/ph/hope6/about/; the Community Development Block Grant program, http://www.hud.gov/offices/cpd/communitydevelopment/programs/; and the Low Income Housing Tax Credit program, http://www.hud.gov/offices/cpd/affordablehousing/training/web/lihtc/ basics/allocating.cfm (accessed September 2, 2009). 15 Southern Burlington County N.A.A.C.P. v. Twp. of Mount Laurel, 67 N.J. 151 (1975) [Mount Laurel I]. It is interesting to note that courts in both New Jersey and New Hampshire are credited with providing the impetus for legislatively enacted affordable housing programs (see section below on New Hampshire). However, although the courts in New York have made similar pleas to the Legislature, a a comprehensive program has not yet been adopted. See Berenson v, Town of New Castle, 378 N.Y.S.2d 672 (1975) and Matter of Land Master Montag I, LLC v. Town of Montgomery 2008 WL 3853767 (N.Y.A.D. 2 Dept. 8/19/2008). 16 See, Southern Burlington County N.A.A.C.P. v. Twp. of Mount Laurel, 67 N.J. 151 ( 1975) [Mount Laurel I]; South Burlington County N.A.A.C.P. v. Twp. of Mount Laurel, 92 N.J. 158 (1983) [Mount Laurel II]. 17 Mount Laurel I, 67 N.J. 151, 174. 18 Mount Laurel II, 92 N.J. 158, 198. 19 Id. at 256 (―Formulas that accord substantial weight to employment opportunities in the municipality, especially new employment accompanied by substantial ratables, shall be favored; formulas that have the effect of tying prospective lower income housing needs to the present proportion of lower income residents to the total population of a municipality shall be disfavored; formulas that have the effect of unreasonably diminishing the share because of a municipality's successful exclusion of lower income housing in in the past shall be disfavored.―) 20 Mount Laurel II, 92 N.J. 158, 279-280. 21 See Naomi Bailin Wish & Stephen Eisdorfer, The Impact of Mount Laurel Initiatives: An Analysis of the Characteristics of Applicants and Occupants, 27 Seton Hall L. Rev. 1268, 1270-1271 (1997). 22 New Jersey Fair Housing Act, L. 1985, c. 222, codified at N.J. Stat. §§ 52:27D-301 et seq. COAH‘s mission is ―[t]o facilitate the production of sound, affordable housing for low and moderate income households by providing the most effective process for municipalities, housing providers, nonprofit and for profit developers to address a constitutional obligation within the framework of comprehensive planning.‖ See Council on Affordable Housing, e-news (Feb. 2009), http://www.state.nj.us/dca/aff iliates/coah/news/newsletters/0209.pdf (accessed September 2, 2009). 23 State of New Jersey Dept. of Community Affairs, COAH Regulations & Statutes, http://www.state.nj.us/dca/affiliates/coah/regulat ions/(accessed September 2, 2009). 24 Id. 25 See Holmdel Builders Ass‘n v. Holmdel, 121 N.J. 577 (1990) (citing cases). 26 Jonathan Witten, Adult Supervision Required: The Commonwealth of Massachusetts‟s Reckless Adventures With Affordable Housing and the Anti-Snob Zoning Act, 35 B.C. Envtl. Aff. L. Rev. 217, 222-223 (2008). 27 See, e.g., Eric Reenstiema, One reason to like anti-snob zoning, The Boston Globe, Aug. 13, 2007, available at http://www.boston.com/realestate/news/articles/2007/08/13/one_reason_to_like_anti_snob_zoning/(accessed September 2, 2009). 28 ALM GL ch. 40B, § 21. 29 Boothroyd v. Zoning Bd. of Appeals of Amherst, 449 Mass. 333, 337-338 (2007). 30 ALM GL ch. 40B, § 22. 31 Zoning Board of Appeals of Wellesley v. Ardemore Apts. L.P., 436 Mass. 811 (2002). 32 See Boothroyd v. Zoning Bd. of Appeals of Amherst, 449 Mass. 333, 337-338 (2007). 33 Taylor v. Hous. Appeals Comm., 451 Mass. 149, 151 (2008). 34 Terry J. Tondro, Connecticut‟s Affordable Housing Appeals Statute: After Ten Years of Hope, Why Only Middling Results?, 23 W. New Eng. L. Rev. Rev. 115, 116 (2001). The author of this article, Terry Tondro, was the cochair of the Blue Ribbon Commission on Housing, which developed the legislation and recommended it to the state legislature. 35 Terry J. Tondro, Connecticut‟s Affordable Housing Appeals Statute: After Ten Years of Hope, Why Only Middling Results?, 23 W. New Eng. L. Rev. 115, 126 (2001) (quoting Michael Wheeler, Regional Consensus on Affordable Housing: Yes in My Backyard?. 12 J. Plan. Educ. & Res. 139 (1993). 17 36 CONN. GEN. STAT. § 8-30g (a)(1), (a)(6). 37 CONN. GEN. STAT. § 8-30g. See also W. Hartford Interfaith Coalition, Inc. v. Town Council, 228 Conn. 498 (1994) (holding that 8-30g applies to ―every type of application filed with a commission in connection with an affordable housing proposal‖). 38 See, e.g., Quarry Knoll II Corp. v. Planning and Zoning Com'n of Town of Greenwich, 256 Conn. 674, 718-719 (2001); Town Close Assocs. v. Planning and Zoning Commission, 42 Conn.App. 94, 104-105 (1996). 39 CONN. GEN. STAT. § 8-30g (k). 40 See, e.g., Mackowski v. Planning and Zoning Com'n of Town of Stratford, 59 Conn.App. 608 (2000) (holding that generalized statements about the adverse effects of an apartment building did not justify the denial of a permit for an affordable housing development); Kaufman v. Zoning Commission, 232 Conn. 122 (1995) (holding that denial was improper where the developer had agreed to mitigate traffic problems and the commission had cited no other public safety concerns). 41 See, e.g., g., Christian Activities Council, Congregational v. Town Council of Town of Glastonbury, 249 Conn. 566 (1999) (holding that the commission‘s permit denial was supported by adequate evidence where the town ―consistently for nearly twenty-five years...viewed the parcel in question...as particularly appropriate for open space, conservation and recreational purposes.... In addition, the record contains ample evidence that this was much more than an idle or passing thought for the town, which had planned for and on several occasions attempted to purchase the particular parcel in question for those purposes, or encouraged the state to do so as part of a regional plan‖); Terry J. Tondro, Connecticut‟s Affordable Housing Appeals Statute: After Ten Years of Hope, Why Only Middling Results?, 23 W. New Eng. L. Rev. 115, 122 (2001) (citing cases). 42 Cal. Gov. Code § 65583 (c). See generally Henry A. Span, How the Courts Should Fight Exclusionary Zoning, 32 Seton Hall L. Rev. 1, 82-(2001). 43 Cal. Gov. Code § 65584. 44 44 http://www.mi.vt.edu/data/files/hpd%2019.4/basolo-scally_web.pdf, p. 752 (accessed September 2, 2009). 45 Cal. Gov. Code § 65863. 46 Cal. Gov. Code § 65589.5. 47 Cal. Gov. Code § 65589.4. 48 Cal. Gov. Code § 65915. 49 Britton v. Town of Chester, 134 N.H. 434, 595 A.2d 492 (1991). See generally Henry A. Span, How the Courts Should Fight Exclusionary Zoning, 32 Seton Hall L. Rev. 1, 46-48 (2001). 50 The text of the new law is available at http://www.gencourt.state.nh.us/legislation/2008/SB0342.html (accessed September 8, 2009). 51 R.S.A. 674:59 (I). 52 R.S.A. 674:59 (III). 53 R.S.A. 674:59 (IV). 54 R.S.A. 674:61. 55 Id. 56 R.S.A. 674:58. 57 P.L. 2008, ch. 441; P.L. 2008, ch. 477; S.B. No. 2109 and H.B. No. 7460, codified at R.I. Gen. Laws §§ 42-128.2-1 et seq. 58 R.I. Gen. Laws § 42-128.2-4. 59 R.I. Gen. Laws § 42-128.2-5. 60 R.I. Gen. Laws § 42-128.2-6. 61 R.I. Gen. Laws § 42-128.2-8. 62 Chapter 444 of the New York Laws of 2008 (S.6823-A), codified at N.Y. Gen. Mun. Law §§ 699 et seq. 63 N.Y. Gen. Mun. Law § 699-b. 64 Id. 65 For example, a recent study by the U.S. Department of Housing Urban Development concluded that extensive subdivision regulations limit affordable housing. See U.S. Dept. of Housing and Urban Development, Office of Policy Development and Research, Study of Subdivision Requirements as a Regulatory Barrier (Apr. 2007), available at http://www.huduser.org/Publications/pdf/subdiv_report.pdf (finding that ―[t]he average cost of excessive regulation resulting from subdivision standards for one dwelling unit was about 5 percent of the average cost of a new home. For the land development standards studied, the average regulatory barrier cost for one dwelling 18 unit was $11,910. In comparison with the average cost for a new single-family dwelling in the United States in 2004 ($244,000), the average per-unit regulatory cost barrier is 4.8 percent of that average selling price.‖) (accessed September 8, 2009). 66 See generally Patricia E. Salkin, ed., American Law of Zoning § 5:3 (5th edition). 67 See Gerald A. Fisher, The Comprehensive Plan is an Indispensable Compass for Navigating Mixed-Use Zoning Decisions Through the Precepts of Due Process, Takings, and Equal Protection Clauses, 40 Urb. Law 831 (2008) (advocating for the inclusion of mixed-use zoning policies in comprehensive plans); Brenner v. City of Portland, 2008 Me. Super. LEXIS 176 (July 9, 2008, no. AP-07-05) (upholding conditional zone agreement to allow a homeless shelter in part because it advanced the comprehensive plan‘s goal of providing ―varied and affordable‖ housing); Cope v. Cannon Beach, 317 Ore. 339 (upholding an ordinance restricting short-term rentals in part because it advanced affordable housing goals articulated in the comprehensive plan). 68 See Daniel R. Mandelker, The Affordable Housing Element in Comprehensive Plans, 30 B.C. Envtl. Aff. L. Rev. 555 (2003). 69 Meck, ed., Growing Smart Legislative Guidebook: Model Statutes for Planning and the Management of Change (American Planning Association, 2002) at 7-120 and Table 7-5. California, as discussed above, requires local governments to include detailed affordable housing information in their comprehensive plans. While other states‘ enabling statutes tend to be more broadly worded and do not specifically reference affordable housing, the statutes often provide guidance to suggest to local governments that this is an appropriate topic for consideration. For example, New York law provides that a town‘s comprehensive plan may include a range of topics, including ―Existing housing resources and future housing needs, including affordable housing.‖ N.Y. Town Law § 272-a(3)(h). 70 See, e.g., Town of Barnstable, Massachusetts, Comprehensive Plan 2008, Community Housing, http://www.town.barnstable.ma.us/GrowthManagement/ComprehensivePlanning/LCP/CompPlan08/Comprehensive%20Plan%202008%20Section%205%20Community%20Housing.pdf; City of Bloomington, Minnesota, http://www.ci.bloomington.mn.us/cityhall/dept/commdev/planning/longrang/compplan/2008update/elements/3housing.pdf (setting a goal of building 961 new affordable units between 2011 and 2020); New York City, PlaNYC 2030 Housing, http://www.nyc.gov/html/planyc2030/downloads/pdf/report_housing.pdf (accessed September 8, 2009). 71 See generally Brian Lerman, Mandatory Inclusionary Zoning—The Answer to the Affordable Housing Problem, 33 B.C. Envtl. Aff. L. Rev. 383 (2006); Michael Kroopnick, Affordable Baltimore: Public-Private Approaches to Workforce Housing, 40 Urb. Law 331, 348-355 (2008); Cecily T. Talbert & Nadia L. Costa, Inclusionary Housing Programs: Local Governments Respond to California‟s Housing Crisis, 30 B.C. Envtl. Aff. L. Rev. 567 (2003). 72 See Henry A. Span, How the Courts Should Fight Fight Exclusionary Zoning, 32 Seton Hall L. Rev. 1, 33-34 (2001). 73 See, e.g., Michael Kroopnick, Affordable Baltimore: Public-Private Approaches to Workforce Housing, 40 Urb. Law 331, 351 (2008) (―Studies indicate that mandatory programs are far more effective in producing inclusionary housing units. A 1994 study by the California Coalition for Rural Housing (CCRH) found ‗mandatory programs produce the most very-low and low-income affordable units compared with voluntary programs, both in terms of absolute numbers and percentage of total development.‘ Another study by CCRH found that, with respect to California, ‗the 15 most productive inclusionary housing programs ... are mandatory programs‘‖); David Rusk, Nine Lessons for Inclusionary Zoning, http://www.gamaliel.org/DavidR usk/keynote%2010-5-05.pdf (―Voluntary programs don‘t produce much inclusionary housing. They simply give spineless public officials political cover that ―they‘ve done something‖ while it‘s ―business as usual‖ for builders – but for only another five or ten years.‖) (accessed September 8, 2009). 74 See Laura M. Padilla, Reflections on Inclusionary Housing and a Renewed Look at its Viability, 23 Hofstra L. Rev. 539, 553-554 (1995). 75 See Home Builders Ass‘n v. City of Napa, 90 Cal. App.4th 188 (2001) (upholding an inclusionary housing ordinance against a facial takings claims where it was possible to obtain a waiver from the requirements); Bd. of Supervisors v. De Groff Enterprises, Inc., 214 Va. 235 (1973) (finding a mandatory inclusionary housing set aside to be an unconstitutional taking of property); 22 A.L.R.6th 295, Validity, Construction, and Application of Inclusionary Zoning Ordinances and Programs (collecting cases). 76 Furman Center for Real Estate and Urban Policy, Housing Policy Brief: The Effects of Inclusionary Zoning on Local Housing Markets: Lessons from the San Francisco, Washington DC and Suburban Boston Areas, available at http://www.nhc.org/pdf/pub_chp_iz_brief08.pdf (accessed September 8, 2009). A longer version of this report is also available. Jenny Schuetz, Rachel Meltzer, and Vicki Been, Furman Center for Real Estate and Urban Policy, 31 19 Flavors of Inclusionary Zoning: Comparing Policies from San Francisco, Washington, D.C. and Suburban Boston, (Sep. 2008), available at http://furmancenter.org/files/31flavorsofIZ9-9-08.pdf (accessed September 8, 2009). The report found that the design of inclusionary zoning programs varies considerably from jurisdiction to jurisdiction. Some were more focused on achieving economic integration in housing, whereas others were more concerned with the number of affordable housing units produced. The study found that larger, more affluent communities are more likely to adopt inclusionary zoning programs, and that the motivation behind the adoption of these programs varies. Further, the report revealed that the strongest predictor of the number of affordable housing units produced under an incentive zoning program is the length of time the program has been in effect. The study also exposed that just because an inclusionary program exists, this is no guarantee that affordable housing will be produced. For exmples of local inclusionary zoning ordinances, see Madison, Wisconsin, Inclusionary Housing Ordinance, http://www.cityofmadison.com/CDBG/iz/general/iz_ordinance.pdf (July 13, 2008); City of Burlington, Vermont, Inclusionary and Replacement Housing, http://www.ci.burlington.vt.us/planning/zoning/zn_ord inance/article_09_housing.pdf; City of Boulder, Colorado, Inclusionary Zoning, http://ci.boulder.co.us/files/PDS/New%20LUC/Training%20Copies/9_13_tra.pdf; City of Sacramento, Inclusionary Housing Ordinance, http://www.lsnc.net/housing/Sac_city_ordinance.pdf (Oct. 3, 2000); Town of Barnstable, Massachusetts, http://www.mass.gov/envir/smart_growth_toolkit/pages/CS-iz-barnstable.html; Montgomery County, Maryland, \fs20fs20 http://www.montgomerycountymd.gov/dhctmpl.asp?url=/content/dhca/housing/housing_P/mpdu/history.asp (assessed September 8, 2009). 77 See, e.g., Michael Kroopnick, Affordable Baltimore: Public-Private Approaches to Workforce Housing, 40 Urb. Law 331, 349-350 (2008). 78 See, e.g., Benjamin Powell, “The The Economics of Inclusionary Zoning Reclaimed”: How Effective Are Price Controls?, 33 Fla. St. U.L. Rev. 471, 475 (2005). 79 See generally Rohan, Zoning and Land Use Controls, at 8-2 to 8-16. 80 Cal. Gov‘t Code § 65915. 81 R.I. Gen. Laws § 45-24-33 (b)(1). 82 Md. Ann. Code art. 66B, § 10.01. 83 See Nicholas Brunick, Lauren Goldberg, and Susannah Levine, Voluntary or Mandatory Inclusionary Housing? Production, Predictability, and Enforcement (Aug. 2004), available at http://www.bpichicago.org/documents/mandatoryv.voluntary5.06.pdf (assessed September 8, 2009). 84 Patricia E. Salkin, Act Now: Accessory Dwelling Units Can Aid in Intergenerational Housing Crisis, Capital Commons Quarterly (April 2007) at 13, http://www.albanyguardiansociety.org/PDF/1-CCQ-4-07-web2.pdf (explaining that ―[a]n intergenerational approach to housing though accessory dwelling units for family members may enable any one generation to ‗host‘ another generation, enabling al to enjoy the independence of homeownership‖) (assessed September 8, 2009). 85 See GrowSmart Maine, Accessory Apartments: An Affordable Housing Strategy, http://www.growsmartmaine.org/docs/Affordable- Housing.pdf; Andree Brooks, Wide Appeal for „Accessory Apartments‟, the New York Times, Jan. 3, 1982, http://www.nytimes.com/1982/01/03/realestate/wide-appeal-for-accessory-apartments.html (accessed September 8, 2009). 86 See Massachusetts Smart Growth Toolkit, Model Bylaw for Accessory Dwelling Units, http://www.mass.gov/envir/smart_growth_toolkit/bylaws/ADU-Bylaw.pdf. See also U.S. Dept. of Housing and Urban Development, Accessory Dwelling Units: Case Study (June 2008) (providing case studies of several municipalities with ADU ordinances), http://www.huduser.org/P ublications/PDF/adu.pdf (accessed September 8, 2009). 87 City of Northampton, Mass. § 350-10.10 (1975). 88 Town of Huntington, N.Y., Art. XX secs. 198-134. 89 See e.g. Municipality of Fort Kent, Maine, Code § 7.3(B)(3) (2007), available at http://www.fortkent.org/fkzoneord.php (accessed September 8, 2009). 90 Id. Id. 91 Local Law No. 5 of 1994, Town of Ithaca, N.Y., To Amend the Zoning Ordinance to Permit the Placement of Elder Cottages in Residential Districts. 92 Vt. Stat. Ann. Tit. 24, § 4412(E) (2008). 20 93 Cal. Gov. Code § 65852.2. 94 Fla. Stat. § 163.31771. 95 See Housing Policy.org, Toolbox, Reduce Red Tape: Ensure Zoning Policies Allow Housing Diversity, http://www.housingpolicy.org/toolbox/st rategy/policies/diverse_housing_types.html?tierid=45 (accessed September 8, 2009). 96 Andrew Caffrey and Charlie Russo, Smaller homes are nonstarters: Developers cite restrictive zoning for lack of affordably priced homes, the Boston Globe, Nov. 5, 2006, available at http://www.boston.com/realestate/news/articles/2006/11/05/smaller_homes_are_nonstarters/(accessed September 8, 2009). 97 See, e.g., Mont. Code Ann. § 76-3-102(7) (indicating that its purpose is to ―promote cluster development approaches‖); Me. Rev. Stat. Ann. tit. 30-A § 4326(3-A)(A)(2) (requiring local governments in rural areas to adopt appropriate land use policies and including clustering as an example of such); N.H. Rev. Stat. Ann. 674:21(I)(f); S.C. Code Ann. § 6-29-720(C)(1); Wash. Rev. Code Ann. § 36.70A.177(2)(b); Colo. Rev. Stat. Ann. § 30-30-28-403; Mass. Gen. Laws Ann. ch. 40A, § 9; Conn. Gen. Stat. Ann. § 8-18; WIS. STAT. § 66.1027. 98 For example, Pennsylvania‘s smart growth program, Growing Greener, has created a conservation subdivision handbook. Natural Lands Trust, Growing Greener: Conservation by Design (2001), http://www.natlands.org/upl oads/document_33200515638.pdf. In Georgia, the Department of Community Affairs offers guidance on the creation of conservation subdivision ordinances, including model language, implementation guides and case studies. Georgia Department of Community Affairs, Toolkit of Best Practices, Conservation Subdivision, http://www.dca.state.ga.us/toolkit/ToolDetail.asp?GetTool=31. Massachusetts‘ Smart Growth Toolkit also provides local governments with helpful information and a model ordinance for residential subdivision. Mass. Smart Growth/Smart Energy Toolkit, Open Space Residential Development Model Bylaw, http://www.mass.gov/envir/smart_growth_toolkit/bylaws/OSRD-Bylaw.pdf (accessed September 8, 2009). 99 Regulations adopted under the Montana clustering statute, for example, may include expedited procedures and other incentives. Mont. Code Ann. § 76-3-509(3)(a)-(b). 100 See Stuart Meck, Cluster Development: Modern Application of an Old Town Form, 8 Zoning Practice 2 (2007). 101 Amy J. Schmitz, Promoting the Promise Manufactured Homes Provide for Affordable Housing, 13 J. Aff. Housing 384 (2004), available at http://lawweb.colorado.edu/p rofiles/pubpdfs/schmitz/SchmitzAHCDL.pdf (accessed September 8, 2009). 102 See, e.g., Texas Manufactured Housing Association v. City of Nederland, 101 F.3d 1095 (5th Cir. 1996) (upholding the city‘s trailer park zoning because it prevented decreases in property values due to ―haphazard placement of such housing‖). 103 American Planning Association, Policy Guide on Factory Built Housing http://myapa.planning.org/affordablereader/policyguides/factoryhousing.htm (adopted March 11, 2001) (site visited September 8, 2009). 104 See, e.g., Cal. Gov. Code §§ 65852.3, 65852.4; Idaho Code § 67-6509B; Iowa Code §§ 335.30, 414.28; 30-A M.R.S. § 4358; N.M. Stat. Ann. § 3-21A-3; Tenn. Code Ann. § 13-24-201; Rev. Code Wash. § 35.21.684. See also Mont. Code Anno. § 76-2-202 (3) (―In a proceeding for a permit or variance to place manufactured housing within a residential zoning district, there is a rebuttable presumption that placement of a manufactured home will not adversely affect property values of conventional housing‖). 105 See, e.g., Town of Warren, Maine, Manufactured Housing Ordinance, http://town.warren.me.us/Forms/Form13.pd f; City of Newberg, Oregon, Manufactured Home Ordinance, http://www.ci.newberg.or.us/website/Recorder/Ordinances/2250-2499/Ord2380.pdf (accessed September 8, 2009).