Monday, October 28, 2013

Miller on community land trusts

I recently published an article entitled Community Land Trusts: Why Now is the Time to Integrate this Housing Activists’ Tool into Local Government Affordable Housing Policies, which may be of interest to housers out there.  From the abstract:

A recent study found that housing expenses in the period from 2006 to 2010 were 52 percent higher for the typical household living in each of the 25 largest U.S. metropolitan areas than they had been in 2000. This rise in housing expenses, coupled with stagnant wages in those same locations over the same period, is one of the major reasons that community land trusts (CLTs) have risen from a fringe housing movement to the center of cities’ efforts to provide affordable housing within the last decade. In addition, many cities see CLTs as a way to provide perpetually affordable units, a benefit not provided by inclusionary zoning ordinances that often only require affordability for a term of years. This article explores how some cities have already added CLTs to their list of affordable housing policy tools, ultimately arguing that the current economic environment presents a strong case for more cities to start CLTs at this time. Even where cities are not ready to take such steps now, the dramatic rise in CLT formation nationally, as well as the massive city-wide CLTs planned for several major cities in the U.S., such as Chicago, Illinois and Irvine, California, are developments that land use and zoning lawyers will want to watch. If the massive CLTs ultimately work as planned, other cities are likely to follow suit in embracing CLTs, a move that in turn could alter how project proponents meet inclusionary housing requirements and revolutionize how affordable housing dollars are spent by local governments. The article proceeds by offering a history of CLTs; reviewing 10 characteristic features of the “classic” CLT structure; reviewing the rise of cities’ use of CLTs and presents, in detail, a review of two of the most ambitious city-backed CLTs started by Chicago and Irvine; reviewing several legal and policy issues unique to city CLTs; and finally making the case for why cities should consider starting CLTs now.

The impetus to CLTs may be growing even stronger as developers find increasing success in challenging inclusionary housing ordinances.  In addition to the cases I discuss in the article, a new California Supreme Court case, Sterling Park v. City of Palo Alto, makes it easier for developers to challenge inclusionary housing requirements by permitting developers to obtain a permit to build and challenge the requirement at the time of assessment, which is often far after construction has begun.  The California Supreme Court has also taken up another case, CBIA v. City of San Jose, which directly challenges San Jose’s inclusionary housing ordinance.  While the appellate court upheld the city's inclusionary housing ordinance, CBIA in the California Supreme Court's hands may substantially alter how inclusionary housing ordinances operate in California, and could prove influential elsewhere. 

While CLTs are not an antidote to the woes of inclusionary housing ordinances—in fact, the largest CLTs are funded in part by contributions mandated by inclusionary housing ordinances—CLTs deserve a solid look from cities seeking another approach to housing affordability.

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