UPDATE #2: 2010



To keep our friends current on the Center’s activities since our last update (in May), we summarize a few new developments below – with pictures! The headlines are:



Ø      Summer law clerks prepare reports on six statutory approaches to combating regulatory barriers to affordable housing (RBAHs)

Ø      Law clerks attend educational events, recognition dinner

Ø      Center provides input on Virginia’s first statewide governmental housing policy

Ø      Center weighs in on major redevelopment plan for Tysons Corner, Virginia

Ø      New name contemplated that reflects Center’s affordable housing focus

Ø      Recent donations help cover costs associated with law clerks


Summer law clerks prepare draft reports on six statutory approaches to combating regulatory barriers to affordable housing (RBAHs)



Six law students – three at George Washington University Law School, two at George Mason University School of Law, and one at Georgetown University Law School – wrote extensive analyses for the Center this summer of different statutory approaches that deal directly with RBAHs. There are important lessons to be learned from each approach, as the Center works toward a fully effective statutory response to RBAHs.


The law clerks focused on statutes in four states (Massachusetts, New Jersey, Connecticut, and Illinois), as well as one relevant federal statute and the unique, local statutory approach in the Houston, Texas, area. The law clerks summarized the provisions of the different statutes, important interpretations of those provisions, the statutory histories, successes and failures under the different approaches, and suggestions for improvements. The reports were based on a thorough review relevant judicial decisions, law review articles and non-legal studies. A sketch of each student’s report(s) follows.





Shakira Mack (GWU Law ’12) wrote an extensive analysis of America’s oldest statute (1969) directed at overriding RBAHs. That Massachusetts statute (“Chapter 40B”) provides developers of affordable housing with strong tools for expediting their applications and getting adverse local zoning and land use decisions reversed by a statewide Housing Appeals Committee. Those procedures govern localities that lack the defined minimum amount of affordable housing – generally 10% of the municipality’s housing units. 


Chapter 40B has resulted in more than 28,000 units of affordable housing being added to Massachusetts’s inventory. It also has been something of a model for subsequent statutes, notably those in Connecticut, Rhode Island and Illinois.


However, Massachusetts’ housing continues to be among the least affordable in America, and Chapter 40B has been under persistent attack for both its weaknesses (such as its abuse by some for-profit developers) and its strengths (such as its history of state overrides of local zoning decisions). An effort to repeal Chapter 40B has made its way onto the ballot for November’s state elections. Chapter 40B’s long history suggests many improvements that might increase its effectiveness greatly.


To round out the Center’s understanding of Massachusetts’ efforts, James Green (GMU Law ’12) reported on developments under related statutes – notably its 2003 Smart Growth statute (“Chapter 40R”). That statute fuses efforts to increase affordable housing with initiatives to concentrate development near jobs and transportation systems. It aims to reduce sprawl and accompanying problems (such as undue depletion of open space, excessive commutes to work and services, and excessive energy use (especially of fossil fuels)). Massachusetts’ extensive statutory experience provides many valuable lessons and insights into what may work and what has not worked.


 New Jersey 


Erin McKenna (GWU Law ’12), aided part-time by Robyn Burrows (GMU Law ’12), compiled an in-depth analysis of New Jersey’s extensive history of judicial, legislative, and administrative efforts to combat RBAHs. New Jersey’s legislation was in response to landmark decisions by the state’s Supreme Court in the Mount Laurel cases (Mt. Laurel I, 336 A.2d 713 (N.J.), cert. denied, 423 U.S. 808 (1975); Mount Laurel II, 456 A.2d 390 (1983)). That court declared unconstitutional local zoning regulations that do not provide the requisite opportunity for development in the community of a fair share of the region’s need for low-and moderate income housing.


The New Jersey Fair Housing Act was passed in response in 1985, reaffirming some parts and modifying other parts of the judicial “Mount Laurel Doctrine.” It created an administrative agency (Council on Affordable Housing ("COAH")) to determine each municipality’s fair share of its region’s affordable housing needs. COAH has had a controversial history, and compliance with its determinations is voluntary.


The Fair Housing Act has been credited with responsibility for approximately 40,000 new units of affordable housing that were built or were in the development process between 1986 (the Act’s effective date) and 2006. However, many critics argue that the Act and COAH have fallen short of meeting New Jersey’s affordable housing needs, and others argue that it imposes excessive burdens on municipalities. 






Jordan Silver (GWU Law ’12) summarized developments under Connecticut’s Affordable Housing Land Appeals Act (1989) (“Section 8-30g.”). Based somewhat on the Massachusetts Chapter 40B model, Connecticut’s statute has been the subject of much protest and litigation, and it received a legislative overhaul in 2000. While some statistics indicate that it has had some degree of success in encouraging affordable housing development, the statute has not lived up fully to its goals.




Jordan Silver also investigated the limited experience under the 2003 Illinois Affordable Housing Planning and Appeal Act (AHPA). The practical impact of that statute has yet to be tested. However, Mr. Silver sees potential problems due to factors such as: (1) the unusually strong legal protection of local home rule in the state, and (2) the absence of clear standards to guide localities in deciding whether to approve an affordable housing proposal. Like similar statutes in Massachusetts, Connecticut, and Rhode Island, the current Illinois law seems to be only a partial solution to the regulatory barriers problem.


Federal Religious Land Use Act



Ginger Collier (Georgetown Law ’12), who clerked for the Center in the Spring (see Update #1-2010), returned for eight weeks in June and July to analyze relevant provisions of the federal Religious Land Use and Institutionalized Persons Act of 2000 (“RLUIPA”). That statute protects religious institutions -- especially minority denominations -- from exclusionary and discriminatory zoning and land use policies. It is relevant to affordable housing efforts because they encounter much the same problems.


Despite the many controversial aspects of RLUIPA, both critics and proponents agree that the statute increases the ability of religious institutions to overcome regulatory barriers to construction and preservation of religious buildings. For example, attorneys' fee awards can be made to reimburse victims of exclusionary housing policies for the often enormous costs of vindicating their rights in litigation. Ms. Collier’s report concludes that affordable housing legislation modeled on RLUIPA could reduce regulatory barriers to affordable housing.


 Houston, Texas 


Houston and Harris County, Texas, form the only major metropolitan area in America that does not engage in zoning or comprehensive planning. That area also is distinguished from other American metros generally by a history of substantially lower housing prices and a less volatile housing market. Robyn Burrows did extensive research on Houston’s affordable housing experience and prepared an outline for a report on the city’s unique approach to land use regulation. There are important lessons to be drawn from the Houston experience.



The Center will edit the law clerks’ reports and submit them to experts in the field for comment. The final versions of those reports will be published, and they will be the foundation for further reports comparing different approaches and making overall recommendations.



The Center continues to believe that effective legislation offers the best chance for widespread elimination of RBAHs in the foreseeable future. We plan to do in-depth analyses by next summer of several other important statutory approaches to combating RBAHs – especially in West Coast states where RBAHs have been recognized as major problems.



Law clerks attend educational events, recognition dinner


The Center and its law clerks broadened their understanding of current affordable housing laws and developments by attending several seminars during May and June.


  • In May, law clerks Jordan Silver, Shakira Mack, and Erin McKenna attended the three-day American Bar Association Forum on Affordable Housing and Community Development Law in Washington, DC. They learned about a wide range of new affordable housing statutory and regulatory activities, including Obama Administration programs. The law clerks split up to attend different breakout sessions individually, and they reported back in detail to their fellow law clerks and the Center at their weekly meetings at area law schools. 
  • Also in May, law clerks James Green and Robyn Burrows attended a seminar with President Tom Loftus on strategies for housing persons with very low income and special challenges. The seminar, hosted by the Arlington Interfaith Council and the Alliance for Housing Solutions, included Arlington, VA, housing developers, counselors, and persons served by the programs under discussion.
  • In June, those same two law clerks and Ginger Collier joined Tom Loftus at a regional workshop in Alexandria, VA, focused on Gov. McDonnell’s statewide housing policy initiative (further discussed below). The workshop, put on by the Virginia Housing Coalition, included a highly informative summary of Virginia housing policies past and present. Input was solicited regarding the content of a statewide housing policy. Tom Loftus spoke to the group about the importance of eliminating regulatory barriers to affordable housing.

Another law clerk get-together – not strictly educational – was held at the aptly-named Liberty Tavern in Arlington on June 24. It was the Center’s annual intern recognition dinner. And it was a delightful opportunity for Board members Tom Loftus and John Rector, as well as Advisory Committee member Phil Caughran and his wife Maureen, to get to know the law clerks informally and thank the clerks for their tremendous efforts.



Board member Mike Clark was unable to attend, due to what turned out to be a burst appendix! Mike is fully recovered now, thankfully. Also on the DL was Advisory Committee member Tom Reston, who has been dealing with a recurring shoulder problem.We hope his latest surgery, a few weeks ago, will completely fix the problem!



Another Advisory Committee member who was in the area, but unable to attend (due to a scheduling conflict), was Scott Lindlaw. He spoke with the law clerks at one of their weekly meetings, however, from his vantage point as a rising third-year law student facing today’s very challenging job market. (The Center’s law clerks were all rising second-year students.)



Center provides input on Virginia’s first statewide governmental housing policy  


Virginia’s new Governor, Bob McDonnell, has established the first comprehensive housing policy framework for the Executive Branch of Virginia’s government. His Senior Economic Advisor, Bob Sledd, heads the Housing Policy Task Force, which together with a statewide advisory committee is working to establish priorities in four key areas outlined in the Governor’s policy framework:


  • Recognizing housing’s role in economic development,
  • Promoting sustainable communities,
  • Ensuring that a range of housing options are available to meet the needs of a changing population, and
  • Addressing the needs of homeless Virginians.

Among the Governor’s stated goals are “streamlining regulations, ensuring robust finance and construction sectors of Virginia’s economy, promoting the development of workforce housing, reducing commute times between home and work, and increasing residential access to transportation systems.” The Center has supplied the following comments to the Governor’s housing policy officials:



In order to achieve Gov. McDonnell’s housing policy goals, the Commonwealth and its Executive Branch will need to do everything within their authority to cause local governments to eliminate regulatory barriers to workforce housing. Those barriers are widely recognized as among the principal reasons for the persistent housing shortages and affordability problems in metropolitan areas of Virginia and across America.


Eliminating regulatory barriers does not require government spending. It merely requires the correction of flawed policies. Furthermore, regulatory barriers to workforce housing are illegal. The Virginia Supreme Court held one such barrier -- exclusionary zoning – illegal back in 1959 (Board of Sup’rs of Fairfax Cty. v. Carper, 200 Va. 653, 107 S.E.2d 390 (1959)). Numerous other state supreme courts have so held since that time.


Other regulatory barriers with comparable effects on workforce housing also have been held illegal, and numerous states have attempted to combat the effects of such barriers legislatively. (Those barriers include unnecessary moratoriums or caps on new housing, unwarranted fees and/or exactions (in Virginia, often the result of the “proffer”process); costly, high-end building and housing code requirements that are unnecessary for health and safety; and unnecessarily protracted, uncertain site plan and permit processes.)


Despite their illegality, regulatory barriers to workforce housing persist. Among the reasons are that:


1.      low- and moderate-income people, as well as workforce housing developers, generally do not have the enormous financial resources necessary to have those regulatory barriers overturned through litigation; and

2.      local governments have strong fiscal incentives to allow workforce housing production to lag behind job creation. 


Virginia’s Executive Branch can be part of the solution, within the bounds of its core functions. The Executive Branch should adopt an explicit policy that counteracts those barriers and promotes a free market, where the supply of workforce housing can rise to meet demand – as close as possible to jobs and transportation systems.   



The Housing Policy Work Group will prepare an interim housing policy report to be presented at the Governor’s Housing Conference in November.



Center weighs in on major redevelopment plan for Tysons Corner, Virginia


In June, the Fairfax County Board of Supervisors adopted a new comprehensive plan calling for greatly intensified development in one of the biggest employment and commercial centers in the suburban Washington, DC, area (and in America) – Tysons Corner, Virginia. The Center submitted written comments on the county Planning Commission recommendations, which were under review, pointing out that:



Those recommendations state the goal for Tysons as a “jobs/housing balance of approximately 4.0 jobs per household.” (p. 6 (“Vision for Tysons”), available at http://www.fairfaxcounty.gov/dpz/tysonscorner/drafts/tysons_draft_plan_05272010.pdf.). 


That goal is almost three times the number of jobs per housing unit as is recommended generally by the planning profession. For example, a recent publication by the American Planning Association (APA) notes that the “recommended target standard” jobs/housing ratio generally is one housing unit per 1.5 jobs in the community. See generally Jerry Weitz, Jobs-Housing Balance 4 (APA Planning Advisory Service, 2003), available at http://www.planning.org/pas/reports/subscribers/pdf/PAS516.pdf.   


The proposed “jobs/housing balance of approximately 4.0 jobs per household” envisioned for Tysons seemingly will aggravate the already severe housing affordability problems of the County – as well as the transportation and environmental problems that accompany sprawling development. A great number of those who take the new jobs at Tysons will have to look far and wide for affordable housing.


The County would not have to spend any money to prevent that from happening. It could do so by promoting a better jobs/housing balance at Tysons Corner. We hope that the Board will do so.



Nevertheless, the Board majority approved the Planning Commission recommendations in full, immediately after a short comment period and a public hearing at which many differing views were expressed.



On the plus side, the adopted plan has no binding effect on the Board regarding specific development proposals. Also, the plan addresses affordable housing by: (1) requiring that 20 percent of all new residential development be “affordable” under County criteria, and (2) relying on a $3.00 per-square-foot contribution to an affordable housing trust fund by new non-residential developments county-wide. However, the Center believes that although such provisions are helpful to affordable housing development, they cannot solve the affordable housing problem if local governments continue to sanction jobs/housing imbalances like those planned at Tysons Corner.




New name contemplated that reflects Center’s affordable housing focus


The Center recently took up again the question of whether to adopt an alternative name for its affordable housing law project, and/or a tagline to clarify its housing focus. (An example of a tagline is that of the environmental legal services nonprofit EarthJustice. Its tagline is, “Because the Earth Needs a Good Lawyer.”) The Center received input from the Advisory Committee in September and expects to make a decision soon.



Recent donations help cover costs associated with law clerks


Special thanks go again to those of you who donated to the Center in response to our May Update! The donations helped defray necessary expenses associated with the Center’s many law clerks and other interns (an estimated $800, for expenses such as recruitment, travel, office supplies, and recognition). Donations are always gratefully accepted at the address listed above, or online at:  http://cswac.org/index.php?option=com_content&view=article&id=58&Itemid=58. J