Key State Roles

Create Enforceable Rights to Support Development

States can facilitate the construction of new affordable homes by creating "rights" to develop these homes in areas where they are needed. Typically, these rights are given teeth by the identification of an enforcement agency or state court that hears expedited appeals from developers whose proposals to build affordable homes have been denied. The enforcement agency has the authority to override local regulations in municipalities that fail to comply with state requirements, a process that is sometimes referred to as a "builder’s remedy." Individuals in need of affordable housing or advocacy groups that represent such individuals also could be granted standing to enforce these rights, but this is less common. In general, the burden of proof in these appeals is shifted to the municipality, which must justify the decision to deny approval.

For example, in the mid-1970s and late '80s a series of New Jersey Supreme Court cases called the Mount Laurel decisions established the requirement that all municipalities "provide a realistic opportunity" for development of their share of low- and moderate-income housing. The state legislation passed to comply with Mount Laurel created the Council on Affordable Housing (COAH) to set each jurisdiction's "fair share" requirement and evaluate plans submitted to meet it. Municipalities that fail to submit and obtain COAH-certification for a plan to achieve their fair-share goal are susceptible to builder's remedy lawsuits filed by developers who are denied approval for the construction of affordable homes.

The State of New Hampshire recently passed a Workforce Housing Law intended to expedite the appeals process for developers of workforce housing whose proposals have been denied. The bill, SB 342, helps to codify a 1991 state Supreme Court Decision (Britton v. Town of Chester), in which the court ruled that municipalities must allow for "reasonable and realistic opportunities for the development of [their fair share of] workforce housing," including rental homes.

The law directs local jurisdictions to assess their land use ordinances and, to the greatest extent possible, amend lot size and density requirements to provide opportunities for the development of workforce housing (defined here as for-sale housing affordable to a 4-person household earning up to 100 percent of area median income, or rental housing affordable to a 3-person household earning up to 60 percent of area median income).

This law finally gives teeth to the court ruling. In cases where a proposed workforce development is denied or receives approval subject to conditions that threaten the project's economic viability, the developer may appeal the denial or conditional approval in court. What's new is that the court is now required to hold a hearing on the merits of the case within 6 months from when the appeal is filed, or to appoint an impartial party to do so. Successful appellants may be awarded a "builder's remedy," in which the court's ruling supersedes local regulations. The developer and municipality must then work together to establish an appropriate solution. See a side-by-side explanation of the statute [PDF], or click here to leave this site and read an article about the statute.

See also:

- The Massachusetts Comprehensive Permit Law (40B) grants developers of affordable homes access to an expedited appeals process if their applications are rejected by communities that have failed to meet minimum affordable housing goals set by the State.

- The Rhode Island Low- and Moderate-Income Housing Act (Title 45) allows developers of affordable housing to apply for a single comprehensive permit from the locality instead of applying with multiple boards. An expedited appeals process is available if the application is denied.

- The Connecticut Affordable Housing Appeals Procedure requires municipalities that have rejected the appealing developer's application to build affordable housing to prove that the rejection was "necessary to protect substantial public interests in health, safety...and such public interests clearly outweigh the need for affordable housing."

- The Illinois Affordable Housing Planning and Appeal Act requires municipalities to submit specific plans for increasing the supply of affordable housing, and establishes a state-level housing appeals board to hear appeals from developers that have been denied permits to build affordable housing in communities that have not met their targets.

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