Combating Exclusion & Achieving Affordable Housing: The Case for Broad Adoption of Housing Appeals Statutes.

• Author: Neel, Bob

INTRODUCTION

The United States has a serious affordable housing problem, (1) and by nearly every measure the problem is worsening. (2) Across the country, counties and municipalities have been unable to meaningfully address the widening gap between housing prices and earned wages. (3) A meager thirty-seven affordable and available rental homes exist for every 100 extremely low-income households. (4) One in seven renting families--or nearly eighteen million households--spend at least half of their income on housing. (5) Lofty housing prices not only lead to increased home insecurity, but also pressure families to forgo other essentials like food, healthcare, and clothing to maintain shelter. (6) Relatedly, home ownership is the bedrock of wealth accumulation in the United States and high housing costs further concentrate the country's already top-heavy capital distribution. (7) These barriers to access have paired with discriminatory public policy to historically weaponize the housing market as a tool for segregation and oppression. (8) Local and state-sponsored exclusionary regulations have disproportionately placed the burden of low access to housing on people of color, closely linking housing shortages and high-cost living to socioeconomic and racial disparities in the United States. (9) Chronic lack of low- and moderate-cost housing is not an isolated policy issue; it is a deeply urgent, multidisciplinary crisis that underscores the most important social issues facing the United States, from police brutality and income inequality to public health and environmental justice. (10)

Federal, state, and local governments have employed several substantive efforts to increase access to affordable housing, including the Section 8 voucher program, (11) public housing projects, (12) and mandatory set-asides for new development. (13) Comprehensive housing reform requires a combination of diverse approaches, and these programs have demonstrated tangible strengths. (14) However, these initiatives have done little to address the serious procedural barriers to developing and maintaining low- and moderate-cost housing. (15) Lack of procedural protection is particularly salient because the municipalities vested with control over local development are often exclusionary. (16) The implications of such exclusionary logic perpetuate the affordable housing crisis by obstructing access to low- and moderate-cost housing through procedural restrictions that render development impracticable or prohibited altogether. (17) Without procedural protections that hold local governments and leaders accountable, substantive housing policies remain vulnerable to systemic barriers.

A little-used legislative mechanism, known as a housing appeals statute, may help lessen the affordable housing problem by providing crucial procedural protections and substantive development incentives in exclusionary-prone communities. (18) Procedurally, housing appeals statutes create a comprehensive pennitting process and appeal system to ensure municipalities with discriminatory approaches towards zoning do not unduly reject or delay affordable housing development. (19) These elements work in tandem: comprehensive permitting allows affordable housing developers to apply to one approval board instead of many, and the appeal system allows developers to petition a state board to review discriminatory local decisions. Substantively, housing appeals statutes often tie procedural oversight to mandatory minimum affordable housing development in municipalities. (20) Despite the first housing appeals statute being adopted over fifty years ago, (21) the tool has remained largely confined to New England states. (22) Housing appeals statutes have created controversy where enacted and local officials often disagree on the efficacy and legality of the statutory scheme. (23) This Note will outline the origin and current state of housing appeals statutes; review the issues of legality posed by housing appeals boards; and analyze the statutes' efficacy. The final section of this Note will use the analytical framework laid out in this discussion to provide recommendations for model housing appeals legislation that prioritizes combating local exclusionary practices and achieving affordable housing policy.

1. HOUSING APPEALS STATUTE BASICS

   The power to regulate and oversee land development, control, and zoning is typically vested in local municipal councils and boards. (24) Most importantly for the purposes of affordable housing, local officials often regulate both development approval and what land can be used for such development. (25) For government officials or neighborhood organizers who harbor exclusionary sentiment, the local land use system is the primary tool for eliminating developments perceived to be unsavory or detrimental to the community. (26) Through a combination of neighborhood opposition and local executive discretion, affordable housing developments are frequently denied or approved with conditions that render the development impracticable. (27) Moreover, the process of permitting and defending developments in front of local commissions and courts can be long and expensive. (28) Despite the progress of inclusive zoning movements and increased advocacy for affordable housing in municipal comprehensive plans, this exclusionary procedural practice remains highly prevalent. (28)

   Implicit in the neighborhood protectionist's psyche is an acknowledgement of the need for affordable housing, but fear of the secondary effects of proximate development. (30) In other words, efforts to increase or preserve development of affordable housing are often systemically undermined before receiving an opportunity to succeed. This dynamic creates a threshold efficacy issue for substantive affordable housing initiatives: if municipalities regularly weaponize land use procedure to burden affordable housing development, increasing access to low- and moderate-cost housing enters gridlock. (31)

   Housing appeals statutes combat prejudice frequently facing low- and moderate-cost housing by creating a state statutory mechanism aimed at protecting the procedural rights of affordable housing development at local municipal levels. (32) Housing appeals statutes create an appeals system, often paired with a comprehensive permitting process, to ensure municipalities with discriminatory approaches to land use decisions do not unduly reject or delay affordable housing development. (33) With slight variation based on jurisdiction, there are three primary goals of the housing appeals boards established by these statutes: first, to expedite low- or moderate-income housing development permits, circumventing the demanding process of gaining approval from several municipal boards; second, to establish a formal review process for local affordable housing decisions; and third, to provide significant authority to modify the decisions made by local housing commissions. (34) For example, should an affordable housing developer apply to a local board for a project permit, and be granted a permit with so many conditions as to make the project infeasible, the housing developer could appeal to the state housing board to strike down or limit the local board's conditions. (35)

   In addition to establishing appeals boards, many housing appeals statutes include minimum affordable housing inventory thresholds that help incentivize development by tying housing appeals requirements to certain percentages of affordable housing in the community. (36) Most housing appeals statutes impose a ten percent affordable housing requirement for each locality, and when such inventory is achieved the municipality will no longer be subject to state housing appeals board review as long as it is maintained. (37) This incentive structure is meant to substantively increase development within high-cost areas while also increasing procedural accountability on the local level. (38) Despite indications of positive impact on low- and moderate-housing stock, both the procedural and substantive oversight measures of housing appeals boards have engendered significant tensions between state and local governments. (39)

2. THE ORIGIN & CURRENT STATE OF HOUSING APPEALS STATUTES

   Massachusetts was the first state to implement a housing appeals statute in 1969. (40) The legislation was spurred by concerns that land allocations in growing suburbs had exclusively prioritized large single-family homes. (41) Section 21 of The Massachusetts Comprehensive Permit and Zoning Appeals Act ("Chapter 40B"), also known as the "Anti-Snob Zoning Act," allows for "any public agency, limited dividend, or nonprofit organization proposing to build lowor [sic] moderate-income housing" (42) to apply to their local appeals board for a single comprehensive permit. (43) Should an application under section 21 of 40B be denied or heavily conditioned, the developer may appeal to the Housing Appeals Committee (HAC), which will assess the local board decision to determine if it made the proposed land use "uneconomic." (44) The HAC may review the denial or conditions imposed by localities in light of local affordable housing needs, (45) and may draw conclusions regarding local authority to impose such conditions or grounds for denial. (46) Lastly, 40B requires the HAC to review an appeal within twenty days of receipt and render a decision within thirty days of the hearing's termination. (47) Importantly, Massachusetts pairs its appeals process with a ten percent mandate of affordable housing in each municipality. (48) Only once a local municipality achieves ten percent affordable housing stock will it be exempted from HAC oversight. (49) The Massachusetts statute encompasses the prototypical features of most subsequent housing appeals statutes: a comprehensive permitting process for affordable housing developers that limits barriers to local approval; a separate speedy...