Many Florida communities are struggling to make housing affordable for their workers. High land costs, strict zoning rules, and other factors have led to a big gap between how much homes cost and how much people make. Some local governments are requiring developers to set aside affordable housing units or pay into a fund. But these rules may not always be legal. This article looks at Florida and federal laws about these kinds of rules. Local governments have historically created rules that make it difficult to build affordable housing. In 1975, the New Jersey Supreme Court said that every town has to make sure there are options for affordable housing in their zoning rules. This led to the New Jersey Fair Housing Act, which made sure affordable housing was considered in local development plans. The Florida Legislature passed a law called the Growth Management Act, which requires cities and counties to make plans for how they’ll grow in the future. Part of these plans is supposed to include making sure there are enough affordable homes for people to live in. However, the authors of this article think that these plans aren’t being carried out properly. They say that even though cities and counties say they want affordable housing, the rules they make for building homes don’t actually help to make housing more affordable. The authors also point out that just building a lot of new homes might not solve the problem, because it could make housing prices go up even more. They think that the current housing market in Florida is proof that just building more homes doesn’t always make housing more affordable. Some local governments are using inclusionary zoning to address the lack of affordable housing. This means they are requiring developers to build affordable units or pay a fee for affordable housing. Whether they can do this depends on what the state laws allow. In the past, courts have ruled that local government can only review physical aspects of development projects, like building size and use, not the economic status of the people who will live there. In Florida, cities and counties can make laws to create more affordable housing, like inclusionary zoning, where developers have to include affordable housing in their projects. They can choose to make this program optional or required. A local government can encourage affordable housing by offering incentives to developers. In a voluntary program, developers can choose to provide affordable housing as part of their project or pay a fee instead. In a mandatory program, developers must set aside a certain number of affordable housing units or pay a fee. The goal is to provide affordable housing without using too much government money. It’s important for the local government to follow the law when choosing which program to use. Local governments in Florida have the power to make rules about how land can be used, but they can’t force individual property owners to provide affordable housing without a good reason. This means that laws requiring developers to set aside a certain number of affordable units or pay a fee could have legal issues. The U.S. Supreme Court has said that while governments can make land use rules, they also have to be careful not to violate property owners’ rights. The U.S. Supreme Court has identified five ways that the government taking private property may be unconstitutional. These include when the government seizes property, physically invades it, completely deprives the owner of economic value, over-regulates it, or imposes conditions on development. In some cases, the property owner must be compensated for the loss. Inclusionary zoning ordinances fall under the category of development exactions and are subject to legal analysis. In Nollan, the U.S. Supreme Court said that if a government wants something from a property owner as a condition for giving them a building permit, it has to be related to a real reason and can’t just take the owner’s property for free. In this case, the government wanted the owners to give an easement on the beach so people could still see the beach from the road. But the Court said that this didn’t really help the government’s reasons, so the demand was unconstitutional. The U.S. Supreme Court said that while the idea of continuous public access along the beach is a good one, the government cannot force the Nollans to give up their property for it without compensating them. The Court also said that the permit conditions could have been valid if they were related to building size or providing a viewing spot, but the easement requirement had no connection to public beach access. This decision set the standard for future cases, like Dolan. A property owner wanted to build a bigger store and parking lot, but the city said she had to give up some of her land for a public greenway and a pathway. The owner said this was unfair, but the U.S. Supreme Court said there was a connection between the city’s requests and the owner’s project. However, the Court also said that the city’s demands were too much and not fair. The Court said that the city needs to carefully consider the impact of new developments and that the demands they make must be reasonable. In the Nollan case, the U.S. Supreme Court said that if a government wants to put conditions on new developments, those conditions have to serve the same purpose as a complete ban on new buildings. If the conditions don’t serve the same purpose, then they’re not allowed. Essentially, the government can’t use development conditions as a way to get money from developers. Mandatory affordable housing fees or exactions may be challenged under a legal standard set in Nollan case. To justify these measures, the local government must prove that a moratorium on new development would not achieve the same goal of increasing affordable housing. Furthermore, inclusionary zoning ordinances may be defended as legislative acts, requiring the landowner to prove their unconstitutionality, while the government must show rough proportionality under the Nollan/Dolan analysis. The California Appellate Court upheld a zoning ordinance in Napa that required residential developers to either set aside affordable housing units, propose an equivalent alternative, pay a fee, or appeal for an adjustment. The ordinance also offered incentives to developers. The court ruled that the ordinance was not an unconstitutional taking and did not violate due process. They also said that developers have the burden to show the ordinance could not be applied constitutionally. The court also found that the ordinance advanced the legitimate state interest of producing affordable housing. However, it is unclear if this ruling will influence Florida courts. The court also refused to review the ordinance under a certain analysis, and the authors argue that the legislative/adjudicatory line is not always clear. They point to a case in Utah where the court had to determine if a similar ordinance should be reviewed under a specific analysis. In Palm Beach County, the term âwork-force housingâ means housing that is affordable for households earning up to 120% of the median household income. However, the median-priced house in the county sells for over $400,000, making it unaffordable for most households. In New Jersey, the courts ruled that municipalities have a duty to provide realistic affordable housing opportunities, including incentives for affordable housing and mandatory set-asides or affordable housing zoning districts if incentives don’t work. They also ruled that new developments can pay affordable housing impact fees instead of building affordable housing units. The court upheld the City of Tallahasseeâs law on building regulations, saying it doesnât take property and isnât an illegal tax. But the case is still being reviewed by a higher court. In California, local governments have a lot of power to make zoning laws, including ones that make developers include affordable housing. But in Virginia, a court said a similar law was illegal because it tried to control how much money developers could make. The Growth Management Act in Florida encourages counties to use innovative regulations to create or preserve affordable housing. There are various statutes that direct local governments to identify suitable sites for affordable housing, create community redevelopment agencies, and request state-owned lands for affordable housing. Additionally, there are laws that allow school districts to use part of their grounds for affordable housing and provide incentives for developments that include affordable housing. There are also legal cases that have established certain constitutional limits on government regulations related to affordable housing. J. Michael Marshall, a land use and planning lawyer, explained the legal issues in a case involving a city’s zoning regulations. The court ruled that the city couldn’t require developers to pay a fee or provide affordable housing without a clear connection to the impact of their projects. This means that cities can’t just impose fees or requirements on developers without a good reason. Mark A. Rothenberg is a lawyer who specializes in land use in Florida and California. He has worked with local governments and institutional clients to help with land use controls and development entitlements.
Source: https://www.floridabar.org/the-florida-bar-journal/an-analysis-of-affordable-work-force-housing-initiatives-and-their-legality-in-the-state-of-florida-part-i/
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