Contents 3 Executive Summary 5 Chapter 1 An Introduction to Inclusionary Housing 7 Inclusion Is Possible 7 A Definition 8 Prevalence of Programs 10 Untapped Potential 11 Chapter 2 Understanding the Economics 5 12 Fairness 14 Absorbing the Cost 14 Impacts on New Development 16 Offsetting Opportunity Costs 16 Suiting the Market 17 Conclusion 18 Chapter 3 Building Support for Policy Adoption 11 19 Understanding Housing Needs and Tools 19 Appealing to the Public 20 Researching Market Feasibility 21 Engaging Private Developers 22 Conclusion 23 Chapter 4 Designing a Policy 24 Program Structure: Mandatory or Voluntary 24 Identifying Beneficiaries 18 28 Geographic Targeting 27 The Set-Aside Requirement 28 In-Lieu Fees 31 Off-Site Development 32 Incentives 33 Design Standards 34 Affordability Preservation 35 Conclusion 23 36 Chapter 5 The Challenges of Economic Integration 37 Mixed Income, Mixed Results 41 Ensuring Access to Opportunity 42 Chapter 6 Addressing Legal Concerns 43 Takings Standards 44 On-Site Performance Requirements 45 Linkage and Impact Fees 36 45 In-Lieu Fees 46 Variations Among State Laws 46 Conclusion 47 Chapter 7 Planning for Successful Implementation 48 Roles for Program Staff and Contractors 50 Funding Administrative Costs 51 Measuring Impact 53 Conclusion 42 54 Chapter 8 Conclusions and Recommendations 55 What Can Local Governments Do to Maximize the Impact of Inclusionary Housing? 56 What Can States Do to Support Local Inclusionary Housing Policies? 57 What Can the Federal Government Do to Support Inclusionary Housing Policies? 58 References 47 61 Acknowledgments 62 About the Author 62 About the Lincoln Institute of Land Policy 63 About Cornerstone Partnership 63 About the National Community Land Trust Network 65 Ordering Information 54 Executive Summary After decades of disinvestment, American cities are rebounding, but new development is often driving housing costs higher and displacing lower-income residents. For cities struggling to maintain economic integration, inclusionary housing is one of the most promising strategies available to ensure that the Redevelopment of the former Mueller Airport in Austin, Texas, included 4,600 new homes and apartments, 25 percent of which were affordable to lower-income families. Credit: Garreth Wilcock benefits of development are shared widely. More than 500 communities have developed inclusionary housing policies, which require developers of new market-rate real estate to provide affordable units as well. Economically diverse communities not only benefit low-income households; they enhance the lives of neighbors in market-rate housing as well. To realize the full benefit of this approach, however, policies must be designed with care. JACOBUS INCLUSIONARY HOUSING 3 Inclusionary housing is not a new idea. Successful and preservation of affordable homes in asset-rich programs have evolved over the years as policy makers neighborhoods is one of the few successful strategies and housing officials learned hard lessons about what for overcoming economic segregation. It also demon- works and what does not. This report draws from these strates that integration within each new market-rate lessons to highlight major challenges that inclusionary development does not always make sense. Successful programs face and to outline the ways that communi- economic integration requires careful attention to a ties address those problems. number of policy design choices. Empirical research on the scale, scope, and structure Every community must consider key legal concerns as of inclusionary programs and their impacts is limited. well. While cities must take care to develop policies The valuable research that does exist is often inacces- that fit within standards outlined by the federal or sible or lost in dense academic journals or consultant state judiciary, courts have generally supported a com- reports. This report captures and digests the lessons munity’s right to require affordable housing. Ultimately, from these sources and makes them readily available there is almost always a path to a legally defensible to local policy makers. It also draws heavily on an inclusionary policy. empirical project conducted in 2014 by the National Housing Conference’s Center for Housing Policy (CHP) Inclusionary housing programs also require significant and the National Community Land Trust Network, staffing to oversee the development process and to which resulted in the Lincoln Institute working paper steward units after they are built to ensure long-term “Achieving Lasting Affordability through Inclusionary affordability. This report highlights essential roles for Housing” (Hickey, Sturtevant, and Thaden 2014). staff or third-party contractors, describes common mechanisms for funding this work, and explains ways Policy makers are understandably concerned that that local stakeholders can monitor a program to en- affordable housing requirements will stand in the sure that it is having the intended impact. way of development. But a review of the literature on the economics of inclusionary housing suggests that well-designed programs can generate significant affordable housing resources without overburdening developers or landowners or negatively impacting the Recommendations address the following questions: •   What can local governments do to maximize the impact of inclusionary housing? pace of development. •   What can states do to support local inclusionary Nevertheless, inclusionary housing policies can be •   What can the federal government do to support housing policies? controversial and thus require broad local support. inclusionary housing policies? Several case studies describe the process through which communities have reached out to key stakehold- In most cities, the need for affordable housing has ers, including partners in the real estate community, to never been more urgent. For many jurisdictions across build endorsement for these programs. the country, now is the time to consider adopting robust inclusionary housing policies that build Research into the very real benefits and limitations of permanently affordable housing stock and create mixed-income development suggests that the creation inclusive communities. 4 POLICY FOCUS REPORT LINCOLN INSTITUTE OF LAND POLICY CHAP TE R 1 An Introduction to Inclusionary Housing Brooklyn in the 1970s was a rough place. It would have been hard to imagine that one day it would be one of the most expensive communities in the country. Over the past 40 years, hundreds of thousands of people worked very hard to make Brooklyn a better place: artists painted murals, parents volunteered at local schools, neighbors In Williamsburg, Brooklyn, the developer of this luxury tower called the Edge, where condos sell for $400,000 to $3 million, also built the adjacent Edge community apartments where units rent for as little as $886 per month. Credit: NYC Department of City Planning patrolled streets to combat crime, and the City of New York invested billions of dollars in housing and infrastructure projects to improve struggling neighborhoods. It worked. As a result, however, many of those people who worked so hard to change Brooklyn could not afford to stay there. The cost of making Brooklyn what it is today was borne by the community at large and the City itself, but the economic benefit of this investment accrued primarily to a small number of property owners. JACOBUS INCLUSIONARY HOUSING 5 When people work to make our cities better places, extreme commute times, overcrowding, substandard they indirectly contribute to higher housing costs. housing, or rents or mortgages that are so high they Public investment, in particular, makes a big differ- deplete resources for other essentials. Displaced fam- ence. When we build new infrastructure or transit ilies are not the only ones who suffer—everyone loses systems, we see dramatic and immediate increases when economic diversity deteriorates. Unequal access in the price of surrounding properties because these to housing drives sprawling development patterns; areas become more attractive places to live. Ideally, worsens traffic congestion; pollutes air quality; in- everyone would benefit from improved cities, but in creases taxpayer dollars spent on basic infrastructure; reality the costs and benefits of improvement are not and decreases racial, cultural, and economic diversity shared equally. (Ewing, Pendall, and Chen 2003). Lower-income residents looking for a new home soon Recognizing that this basic dynamic will not change face a choice among several undesirable options: naturally, more and more communities have been consciously seeking to promote mixed-income development. Rather than accepting the assumption that The Chicago Community Land Trust maintains a reserve of economic growth must automatically lead to economic permanently affordable homeownership options for working exclusion, they have been developing local policies families. Credit: Chicago Community Land Trust that seek to increase economic inclusion. 6 POLICY FOCUS REPORT LINCOLN INSTITUTE OF LAND POLICY Inclusion Is Possible creation of homes for low- or moderate-income households to the construction of market-rate residential The Washington, DC, area is home to some of the most or commercial development. In its simplest form, an prosperous and fastest-growing suburban communi- inclusionary housing program might require develop- ties in the country. In Fairfax County, Virginia, the ers to sell or rent 10 to 30 percent of new residential expansion of the DC Metro created a once-in-a-life- units to lower-income residents. Inclusionary housing time opportunity to build a new transit-oriented policies are sometimes referred to as “inclusionary community at Tyson’s Corner. In a suburban area that zoning” because this type of requirement might be housed fewer than 20,000 people in 2010, the county implemented through the zoning code; however, many has planned a 24-hour urban center that will be home programs impose similar requirements outside the to more than 100,000 people and 200,000 jobs. Fairfax zoning code. County will work with developers to ensure that 20 percent of all residential units at Tyson’s Corner are affordable for people who earn between 50 and 120 percent of the area’s median income. In addition, new commercial development projects will pay a fee to fund affordable housing units (Fairfax County Board of Supervisors 2010). Inclusionary housing: Local policies that tap the economic gains from rising real estate values to create affordable housing, tying the creation of homes for low- Across the Potomac River, Montgomery County, Maryland, has had a similar program in place since the early 1970s. It has created more than 14,000 homes for lower-income families that are integrated into some and moderate-income households to the construction of market-rate residential or commercial development. of the area’s most expensive neighborhoods. A 2005 study found that this strategy had succeeded in promoting racial integration throughout the county (Orfield Many programs partially offset the cost of providing 2005). A later study found that the children living in affordable units by offering developers one or more affordable housing produced by the program were not incentives such as tax abatements, parking reduc- only able to attend higher-quality schools than other tions, or the right to build at higher densities. Most children in lower-income families, but their school per- programs recognize that inclusion of affordable units formance was significantly higher (Schwartz 2010). on site within market-rate projects may not always be feasible, so they allow developers to choose among These programs—and hundreds of others like them— alternatives, such as payment of an in-lieu fee or pro- show that, with concerted effort, it is possible for vision of affordable units off-site in another project. communities to grow in ways that create and maintain meaningful economic diversity. While early inclusionary housing policies imposed mandatory requirements applicable to all new resi- A Definition dential development in a city or county, more recent programs have developed a wider variety of structures in response to differing local conditions and needs. “Inclusionary housing” refers to a range of local Some programs have taken a voluntary approach, policies that tap the economic gains from rising real requiring affordable units only when developers estate values to create affordable housing, tying the choose to utilize incentives. Other programs have been JACOBUS INCLUSIONARY HOUSING 7 Because most inclusionary programs are at least partly motivated by a desire to create or preserve mixed-income communities, preservation of affordability is essential. Early inclusionary housing programs frequently imposed very short-term affordability requirements. As communities saw these units revert to the market rate, most have moved to require affordability periods of 30 years or more. Inclusionary housing programs tend to create relatively small numbers of affordable units each year because they rely on new development. If these units remain affordable for long periods of time, however, a community can expect to gradually build a large enough stock of affordable homes to make a difference. Prevalence of Programs The 2014 CHP-Network Project identified 512 inclusionary housing programs in 487 local jurisdictions in 27 states and the District of Columbia. Concentrations The City of Santa Fe, New Mexico, requires that 20 percent of all in New Jersey and California account for 65 percent new developments be affordable to buyers earning 80 percent or of all programs. Inclusionary housing programs were less of the area median income. Credit: John Baker Photography found in most parts of the country; Massachusetts, New York, Colorado, Rhode Island, and North Carolina have 10 or more local programs each (Figure 1). designed to apply only to targeted neighborhoods, where zoning has been changed to encourage There is no national data on the rate at which inclu- higher-density development. sionary housing programs are producing new affordable units. A 2006 study found that California’s inclu- Another trend has been to apply inclusionary poli- sionary programs produced 30,000 affordable units cies to commercial real estate as well. Often called over a six-year period (Nonprofit Housing Association “commercial linkage” programs, “jobs housing” linkage of Northern California 2007). The Innovative Housing programs, or affordable housing “impact fees,” these Institute later surveyed 50 inclusionary programs programs generally collect a fee per square foot from distributed across the country and reported that they all new commercial development to fund new afford- had produced more than 80,000 units since adoption able housing production. Some jurisdictions have (Innovative Housing Institute 2010). While these num- responded to legal obstacles by adopting linkage or bers are significant, inclusionary housing programs impact fees that apply to new residential development alone are not producing a sizable share of the national as well. Whereas a traditional inclusionary zoning pro- affordable housing stock. The Low Income Housing Tax gram would require on-site affordable units or allow Credit (LIHTC) program, by comparison, has produced payment of an in-lieu fee as an alternative to on-site two million units since 1987 (U.S. Department of Hous- development, these newer programs require every ing and Urban Development 2015). project to pay a fee, and some offer on-site development as an alternative to payment of the fee. 8 POLICY FOCUS REPORT LINCOLN INSTITUTE OF LAND POLICY In most cities, inclusionary housing is just one tool programs differed from one city to the next, every city in a suite of local policies intended to address the employed multiple strategies (OTAK and Penninger affordable housing challenge. A study of 13 large cities Consulting 2014). showed that nearly all those with inclusionary programs also manage the investment of federal housing In the communities that have long-established and funds and issue tax-exempt bonds to finance afford- well-designed programs, however, inclusionary hous- able housing. Most also used local tax resources to ing can be an important source of units. Brown (2001) finance a housing trust fund, and many had supported found that inclusionary housing accounted for half of land banks and community land trusts as well. About the affordable housing production in Montgomery half those cities took advantage of tax increment County, Maryland. And Mukhija and colleagues (2010) financing, and a growing minority established tax found that inclusionary programs in Southern Califor- abatement programs that exempt affordable housing nia were producing about as many units annually as projects from property taxes. While the exact mix of the LIHTC program was creating. Figure 1 Concentration of Inclusionary Programs Throughout the United States None 1 to 3 4 to 19 20 to 99 100 or more Source: Hickey, Sturtevant, and Thaden (2014). An online directory of these programs is available at: http://cltnetwork.org/topics/deed-restricted-or-inclusionary-housing-programs JACOBUS INCLUSIONARY HOUSING 9 Untapped Potential The research summarized in this report clearly shows that inclusionary housing is a tried and tested strategy that can make a real impact on the affordable housing crisis, but it also shows that inclusionary housing has Equitable development benefits not only lower-income households; integrated, inclusive, and diverse communities enhance the lives and outcomes of all residents. yet to reach its full potential. Most existing programs were adopted within the past 10 years, and many of the communities that could benefit from inclusionary importantly, inclusionary housing is one of the few policies have yet to implement them. Where inclu- proven strategies for locating affordable housing in sionary policies are in place, details in the design and asset-rich neighborhoods where residents are likely implementation make a large difference in overall to benefit from access to quality schools, public effectiveness. However, the evidence presented below services, and better jobs. Increasingly, communities suggests that inclusionary housing is likely to play a across the country are investing in the creation of new more significant role in our national housing strategy transit-oriented urban neighborhoods, and inclusion- in the coming decade. ary housing policies are one of the only ways to ensure that these places develop in an equitable manner. Faced with declining federal and state resources for Equitable development benefits not only lower-income affordable housing and growing populations within households; integrated, inclusive, and diverse commu- cities and urban cores, communities need to take nities enhance the lives and outcomes of all residents. full advantage of every potential tool. Inclusionary housing programs produce a modest yet steady supply of new affordable housing resources. Because programs generally preserve long-term affordability, In San Mateo, California, six of the Amelia development’s the pool of local inclusionary units can grow steadily 63 townhouses sell for below-market rates to lower-income into a significant share of the local housing stock. As residents. Credit: Sandy Council 10 POLICY FOCUS REPORT LINCOLN INSTITUTE OF LAND POLICY CHAP TE R 2 Understanding the Economics The adoption of inclusionary housing has almost always been controversial. This type of intervention into the private market raises some real economic concerns that need to be taken seriously and addressed with care. This chapter explains the economics of inclusionary housing requirements by addressing Two blocks from the MIT subway stop in Cambridge, Massachusetts, the Third Square apartment complex offers 56 permanently affordable units. Credit: City of Cambridge the most common questions about local inclusionary policies: • Is it fair to ask one group (developers) to solve a broad social problem? • Will developers pass the cost onto tenants and homebuyers? • Will inclusionary policies prevent new development and make the housing problem worse? • Can inclusionary housing work in every type of housing market? JACOBUS INCLUSIONARY HOUSING 11 Fairness effect tends to be upward pressure on housing costs because new homes are primarily built for higher- Inclusionary housing policies should not ask income residents. A 2015 study commissioned by developers to be responsible for resolving all the the Wall Street Journal found that 82 percent of new affordable housing needs within a jurisdiction. What rental housing in the United States was luxury housing is fair is to ask them to compensate for the economic (Kusisto 2015). Not only do the new units command impacts of their developments and to share a portion higher rents, but the new residents who can afford of the profit they make on the public’s investment in them spend money in ways that create demand for the places they develop. more lower-wage workers in the area. This, in turn, creates more demand for housing and ultimately raises It might stand to reason that development of housing— housing costs. Figure 2 illustrates this cycle. any kind of housing—would lead to lower housing prices. In most urban areas, however, the opposite Modest price increases in a region can translate occurs. Construction of new residential real estate into very acute increases in specific neighborhoods. impacts the price or rent of existing homes in two For example, new luxury housing may cause dramatic different ways simultaneously. As the basic notion of upswings in the price of residential real estate in supply and demand suggests, the addition of new units formerly distressed central neighborhoods, but the in a given market will inevitably put some downward lower costs resulting from increased supply may be pressure on the cost of existing units. But the larger apparent only at the suburban fringe of the region. Figure 2 Market Development Increases Demand for Affordable Homes New market rate housing brings higher income residents $$$ $$$ 12 POLICY FOCUS REPORT LINCOLN INSTITUTE OF LAND POLICY Seattle’s South Lake Union, Part One New lower-wage workers generate added demand for affordable housing $ $ In the mid-1990s, Microsoft cofounder Paul Allen made a $20 million loan to finance a proposed park in a warehouse district known as South Lake Union in Seattle, Washington. When voters rejected the proposal, Allen was stuck with 11 acres of unimpressive real estate. But he saw potential and quietly began purchasing more land until his Vulcan Real Estate had amassed a portfolio of over 60 acres—more than one-third of all property in the area. Allen lobbied the city to invest in a fixed-rail streetcar line, which opened in 2007, to connect South Lake Union to Downtown Seattle. When Amazon decided to relocate its headquarters to South Lake Union, Vulcan developed the property and later sold it for $1.2 billion (Jones 2012). In 2013, the Seattle City Council considered rezoning South Lake Union, but it faced a dilemma. At that point, Vulcan had developed less than half its properties, and the company sought to change the zoning code to allow for construction of 40-story towers as part of a mixed-use urban development. However, the new towers would block views and strain public infrastructure citywide. The up-zoning would create a massive financial windfall for one man, while its negative impacts would affect residents of the whole city. One likely impact was particularly troubling to many Seattle residents: the project’s potential to worsen the already acute challenge of rising housing costs. New office and laboratory space would allow for many new jobs that would inevitably translate to higher housing demand and costs. Increased spending generates new jobs in the area. South Lake Union provides a somewhat exaggerated example of the dynamic seen in most growing cities: private developers and landowners benefit disproportionately from public investments such as transit and other infrastructure. New development creates both costs and benefits, but both are unevenly distributed. Inclusionary housing programs recapture some share of this benefit to help the people who disproportionately bear the costs. While inclusionary housing won’t solve the housing challenge, it is both fair and appropriate to expect new development to contribute to the solution. JACOBUS INCLUSIONARY HOUSING 13 These inclusionary homeowners in South Lawndale, Illinois, won prize money to redecorate their living room through the Chicago Community Land Trust’s Extreme Makeover contest. Credit: Chicago Community Land Trust Absorbing the Cost Over time, builder profits will return to “normal” because land prices will rise to capture the higher prices. Generally, developers do not pass on the cost of If builders can earn “extra” profits, landowners will inclusionary housing to tenants and homebuyers. The have a lot of builders competing for their land and will local real estate market sets the prices of market-rate be able to sell at a higher price to a developer willing units, and developers of one project can’t change to settle for more modest profits. the overall market price or rent. Therefore, the cost associated with construction of inclusionary housing When a city imposes inclusionary housing require- is either absorbed by modest declines in land prices or ments, it may increase a developer’s costs. But reductions in developer profits, or some combination developers can’t really pass those costs onto home of the two. buyers or tenants because new units must still be competitively priced in the overall market. Instead, To understand this process, we need to think about over time, land prices will fall to absorb the cost of house prices in the market in general. There are basi- the inclusionary housing requirements. Any incentives cally three elements to the price of any new house: (1) offered by a community would reduce the degree of the land; (2) the cost of building the housing (including land price reductions. fees, permits, construction, and everything else); and (3) the developer’s profit. Impacts on New Development Because buyers can choose other existing homes, builders of new units are basically stuck with the mar- While we don’t need to worry that developers will pass ket price or rent. When the market rises, builders don’t the cost of inclusionary housing requirements along sell for the same price that they had intended; rather, to residents, there is still a risk that these policies they charge the new market price and earn extra prof- could lead to higher prices. If the costs are great it. When the market falls, things happen in reverse. In enough, they could push land prices so low that some the short term, developer profits suffer. But in the long landowners would choose not to sell at all. If this term, land prices will drop because developers avoid happened, less housing would be built and prices projects that won’t earn profits. would rise. 14 POLICY FOCUS REPORT LINCOLN INSTITUTE OF LAND POLICY There seems to be agreement that inclusionary sionary policies had no impact on the overall rate of programs could theoretically diminish the supply of production (Mukhija et al. 2010). housing and therefore increase prices, but there is no agreement about how often this happens or how The most rigorous study to date was conducted by significant the impact is. A study by the libertarian researchers at the Furman Center at New York Univer- Reason Foundation concluded that the production rate sity (Schuetz, Meltzer, and Been 2009), who studied of market-rate homes fell following the adoption of inclusionary programs in the Boston and San Francis- inclusionary housing policies (Powell and Stringham co metropolitan areas. In the towns around Boston, 2004). Basolo and Calavita (2004) critiqued this study, inclusionary requirements modestly decreased the pointing out that jurisdictions are most likely to adopt rate of housing production relative to nearby towns, inclusionary housing policy toward the peak of the slightly raising the market price of residential real economic cycle, weakening the argument that inclu- estate. In the San Francisco area, however, inclusion- sionary housing causes production to fall. A follow-up ary programs had no impact on production or prices, study by researchers at the University of California Los suggesting that it is possible to develop inclusionary Angeles carefully compared the data for communities programs that don’t impact market prices. These same with and without inclusionary housing in Southern programs were also able to create more affordable California and concluded that the adoption of inclu- units than their counterparts in the Boston area. Seattle’s South Lake Union, Part Two The Seattle City Council faced a major dilemma when it considered increasing the affordable housing requirements for South Lake Union. While Paul Allen’s Vulcan Real Estate claimed to support the goal of creating affordable housing, it also contended that any increase in the city’s requirements would be financially infeasible (Tangen 2008). Supporting this concern, a study by a local consultant concluded that a more aggressive policy would likely depress land values by 8 to 17 percent (Fiori 2012). A different local consultant performed a similar analysis and concluded that—even with the more aggressive affordable housing requirements—the up-zoning would increase land values to 13 times their current level (Spectrum 2013). Unable to choose between dueling consultants, the City Council enacted a very modest increase in the housing requirements even as they approved the dramatic increase in height limits. This case illustrates that, even in a very strong market like Seattle, it is difficult for policy makers to evaluate technical economic claims. In fact, the two South Lake Union studies painted a very similar picture of the economics of the proposed policy. But one failed to look at the value added by incentives for developers and focused only on the cost of providing affordable housing; the other considered both the cost and value that was being provided by increasing height limits. Seattle’s City Council eventually commissioned a new detailed economic feasibility study, which found, for example, that the increased density of a high-rise rental project in the city’s downtown added $4.5 million to the value of the land, while the affordable housing requirement recaptured only about $3.2 million of that increase (David Paul Rosen & Associates 2014). Ultimately, the results of that study helped the Council commit to a stronger housing requirement without concern that it would overly burden developers. JACOBUS INCLUSIONARY HOUSING 15 Inclusionary housing policies can create affordable the right to build increased density. When developers units without decreasing development or increasing can build more units, the extra income can offset the prices. But programs must be strategically designed costs of providing affordable units, and the result will and carefully run, or local policy makers will find be a smaller (if any) reduction in land value. themselves caught in the middle of a highly technical debate over real estate economics. Land values don’t change overnight, and some communities have carefully phased in inclusionary Offsetting Opportunity Costs requirements with the expectation that, when developers can see changes coming, they will be in a better position to negotiate appropriate concessions from When incentives are offered, it is meaningless to talk landowners before they commit to projects that will about the cost of providing affordable housing in iso- be impacted by the new requirements. Similarly, some lation. The whole economic picture must be taken into program designs are likely to have a clearer and more account. At the heart of this difference in approach predictable impact on land prices than others. More is a concept known as “residual land value,” which is universal, widespread, and stable rules may translate vital for designing policies that appropriately allow into land price reductions more directly than complex communities to share in the benefits of new construc- and changing requirements with many alternatives. tion without stifling development. Residual land value refers to the idea that landowners Suiting the Market end up capturing whatever is left over after the other costs of development. When the cost of construction Inclusionary housing may not be suitable in every rises, it might impact developer profits in the short type of housing market, but it can work in more term, but higher costs will then cause all developers places than many people realize. Inclusionary pro- to bid less for development sites. As land prices fall, grams are tools for sharing the benefits of rising real developer profits tend to return to “normal” levels. estate values and, as a result, they are generally found in communities where prices are actually rising. In When a city requires developers to provide affordable many parts of the United States, land prices are housing, they are likely to earn less than they would already very low, and rents and sales prices would have if they had been able to sell or rent the affected often be too low to support affordable housing units at market value. This forgone revenue represents requirements even if the land were free. In these envi- the “opportunity cost” of complying with the afford- ronments, policies that impose net costs on develop- able housing requirements (Figure 3). It is fairly easy ers are unlikely to succeed (though some communities to calculate this “cost” for any given mix of affordable nonetheless require affordable housing in exchange housing units and, if these requirements are predict- for public subsidies). able in advance, they should roughly translate into corresponding reductions in land value over the longer The types of communities where rising housing prices term. are a real and growing problem are quite diverse, and many of them are not high-growth central cities like However, most inclusionary housing programs don’t Seattle. In California, one-third of inclusionary pro- simply impose costs; rather, they also attempt to off- grams are located in small towns or rural areas. Wiener set those costs (at least, in part) with various incen- and Bandy (2007) studied these smaller-town inclu- tives for the developers. The most common incentive is sionary programs and found that many were motivated 16 POLICY FOCUS REPORT LINCOLN INSTITUTE OF LAND POLICY Figure 3 Market Development Increases Demand for Affordable Homes = Net Cost to “Opportunity Cost” Value of Any Development of Providing Incentives (or reduction in Land Value) Affordable Units by the influx of commuters or second-home buyers Conclusion entering previously isolated housing markets. It is entirely reasonable to ask real estate developers While inclusionary policies are clearly relevant in to help address the pressing need for more affordable a wide range of communities, the appropriate re- housing, because developers and landowners benefit quirements can differ from one market to another. In financially from the conditions that give rise to the communities where higher-density development is not shortage of decent, well-located homes for lower-in- practical, higher affordable housing requirements may come residents. But inclusionary programs need to be not always be feasible, but lower requirements may designed with care to ensure that their requirements still be effective. San Clemente, California, requires are economically feasible. While developers are not only 4 percent of new units to be affordable. But able to pass on the cost of compliance to tenants and because the city was growing so rapidly, it produced homebuyers, there is some risk that poorly designed more than 600 affordable homes between 1999 and inclusionary requirements could slow the rate of 2006 (California Coalition for Rural Housing 2009). building and ultimately lead to higher housing costs. Wiener and Bandy (2007) also found that many smaller Policy makers can avoid this unintended consequence jurisdictions relied heavily on in-lieu fees, and some by offering developers flexibility in how they comply set fees at very modest levels. and by calibrating requirements and incentives so that the net economic impact on projects is not too great. Smaller communities with inclusionary housing At some level, inclusionary housing can be implement- programs must address unique considerations, such ed in most housing markets, but the stronger the local as limited staff capacity and administration costs. real estate market, the greater the potential for inclu- Outsourcing and multi-jurisdiction collaborations can sionary housing to make a meaningful difference. make smaller programs easier to implement, but in some localities the benefits of an inclusionary housing policy will not adequately offset its costs. JACOBUS INCLUSIONARY HOUSING 17 CH AP TER 3 Building Support for Policy Adoption Winning broad public support for a new inclusionary A family gathers outside their inclusionary home in the Old Las Vegas Highway housing ordinance is essential to both the short-term development in Santa Fe. Credit: John prospects of adopting a strong ordinance and the long- Baker Photography term success of the program. Inclusionary housing raises complex and sometimes controversial issues, so it is important to explain to local stakeholders why inclusionary housing is an appropriate response to real local housing challenges. Carefully studying the economics and engaging private real estate developers seem to help minimize opposition and improve the quality of the policy being proposed. 18 POLICY FOCUS REPORT LINCOLN INSTITUTE OF LAND POLICY Understanding Housing Needs and Tools take action to preserve affordability. But it can be challenging for policy makers to connect the important technical details of any proposed inclusionary policy Many local inclusionary ordinances appear to have with broad public values. Many ordinances have been grown out of much broader efforts to document adopted without significant efforts to educate and en- housing needs and develop local affordable housing gage the public, but it is harder to pass a strong policy strategies. A broad-based community process that if leaders focus only on the details. Appealing directly builds support for the goal of increasing the supply to the public helps to garner political will for reaching of affordable housing and considers the limitations widely shared goals. of available tools often leads local stakeholders to conclude that inclusionary housing is one of the most promising options for addressing a growing problem. When officials in Arlington County, Virginia, conducted a poll of 1,700 local residents, they found that “requiring affordable housing units when developers build That is what happened in Stamford, Connecticut. or renovate housing” was one of the most popular of During the latter part of the 1990s, housing afford- several housing strategies. Seventy-two percent of ability became a growing concern for many residents. county residents supported this strategy, and only 24 A local nonprofit, the Housing Development Fund, percent opposed it (Frederick 2014). organized a conference on creating affordable housing in the summer of 2000. Stamford’s Mayor Dan Malloy A nearly decade-long effort led by the Non-Profit later established an Affordable Housing task force of Housing Association of Northern California (NPH) leaders representing the community, businesses, and shows how broader public outreach can make a differ- government to explore new strategies. The city hired ence. NPH supported inclusionary housing campaigns Alan Mallach, the former housing director in Trenton, in 20 jurisdictions and published a 77-page Inclusion- New Jersey, to work with the task force and city to cre- ary Housing Advocacy Toolkit designed to help local ate an affordable housing strategy. After many meet- advocacy campaigns better communicate with the ings, the group agreed on an ambitious strategy that public (Non-Profit Housing Association of Northern was presented to the community during an Affordable California 2003). The toolkit helped local neighbor- Housing Summit in May 2001 and in a report published hood and faith-based organizations engage with this the following September (Mallach 2001). The task complex issue and led to the successful adoption of force agreed on the need to create more mixed-in- 14 new inclusionary policies. These activities created come development, and consultants recommended a a widespread sense that inclusionary housing is a citywide inclusionary housing policy as a key strategy normal part of the development landscape throughout for achieving this goal. During the next year, the zoning the San Francisco Bay Area (Stivers 2014). board worked to design the inclusionary housing policy and program, and in 2003 Stamford established In Denver, Colorado, City Council Woman Robin Kniech a mandatory policy. discovered the power of direct appeal when she led a yearlong process to update the city’s inclusionary Appealing to the Public housing ordinance (IHO). Kniech lost a key committee vote after developers convinced some of her colleagues that the city should study the issue further. Wherever housing costs are rising, the public is likely After the loss, Kniech appealed directly to voters to be concerned and want to see local government through an op-ed in the Denver Post entitled, “What JACOBUS INCLUSIONARY HOUSING 19 Wherever housing costs are rising, the surprise when, in the early 2000s, rising housing prices public is likely to be concerned and want began displacing the town’s historic working class. to see local government take action to preserve affordability. But it can be chal- Salinas had adopted a relatively weak inclusionary housing ordinance in 1992, but by 2002 rapidly rising prices convinced some local policy makers that a high- lenging for policy makers to connect the er requirement might be appropriate. They wondered important technical details of any pro- how high they could reasonably go. posed inclusionary policy with broad public values. Salinas hired Bay Area Economics (BAE) to evaluate the economic feasibility of inclusionary requirements ranging from 15 to 40 percent of new residential units. BAE built a complex financial model that enabled the Can Denver Do When a Hot Housing Market Hurts?” city to understand how changes in these requirements (Kniech 2014a). In a subsequent interview, she said, might impact the overall profitability of likely devel- “Very few of my constituents understood the technical opment projects. They modeled five different types of issues involved, but they were almost universally sup- residential development, including single-family de- portive of our goals. . . . We won in the media coverage tached homes, townhouses, and multi-family rentals. because our city is changing in ways that most people They chose prototypes that were similar to projects are not comfortable with, and everyone liked the idea that had recently been completed and interviewed that the Council was taking that seriously” (Kniech local developers to verify their assumptions. 2014b). After publication of her op-ed, Kniech won strong support from Denver’s mayor, and the new ordi- BAE determined that a typical local project provided nance passed the City Council by a safe margin. profit equal to roughly 10 percent of the total development cost. Then they evaluated the feasibility of vari- Researching Market Feasibility ous designs for the inclusionary housing requirements. Designs that yielded profits at or above 10 percent of development cost were considered “feasible.” Some In a number of communities, economic feasibility project types were feasible with a 35 percent afford- analyses have been a useful technical tool to help poli- able housing requirement, and others could support cy makers get the details right. They have also been a only 20 percent. BAE concluded that an ordinance vehicle for building public support for an inclusionary requiring 20 percent affordable units would be gen- policy. Typically, this kind of analysis involves staff or erally feasible for the vast majority of projects (Bay consultants researching development economics and Area Economics 2003). This analysis gave the city the demonstrating that local projects can safely support confidence it wanted to unanimously pass an update the costs associated with provision of affordable to their ordinance in 2005. housing without adversely affecting construction or housing values. It is important to keep in mind that when a study like this one shows below-normal development profits, Salinas, California, is a farming town in one of Ameri- that result could imply only a short-term problem. ca’s most productive agricultural regions. But the area Over time, developers should be able to negotiate is also located near the California coast, sandwiched lower prices from landowners. Therefore, some studies between vacation communities such as Monterey also evaluate the likely longer-term impact of pro- and bedroom communities in Silicon Valley. It was no posed requirements (and incentives) on land values. 20 POLICY FOCUS REPORT LINCOLN INSTITUTE OF LAND POLICY Any kind of feasibility study is necessarily somewhat to have accepted or become key advocates for more imperfect, but the goal is to give policy makers a effective programs. A concerted effort to engage and general sense of the likely impact of proposed housing listen to the real estate development community can requirements and incentives on land prices and devel- make a program stronger and more effective, and it opment profits. Ultimately, a detailed feasibility study can also win support or neutralize opposition from a is the only way to address legitimate concerns about powerful set of stakeholders. whether affordable housing requirements could do more harm than good. While it would be unrealistic to expect developers to champion policies that increase their costs or Engaging Private Developers In some communities, private developers, homebuilders, and others in the real estate industry have In North Cambridge, Massachusetts, four units are priced below market rate in the 217 Cameron Avenue development, connected been outspoken opponents of inclusionary housing by a greenway to bustling Davis Square in Somerville. Credit: City programs. In other areas, these same parties appear of Cambridge JACOBUS INCLUSIONARY HOUSING 21 administrative burdens, developers can be supportive secure commitments for affordable housing when- of inclusionary housing for a number of reasons. First, ever projects requested zoning changes. The specific public opposition to development is a key risk faced requirements varied from project to project, however, by developers, and providing affordable housing can so reaching agreements became burdensome for the help win public support for development. Second, town and developers. Council member Sally Greene, inclusionary housing requirements can also garner who ran for office promising to enact inclusionary support for higher-density development, which is often housing, reported that, throughout the process, more profitable. Third, in communities that sometimes “Opposition from the development community wasn’t demand affordable housing as a condition of approval substantial, and the chamber of commerce was for high-profile projects, a formal inclusionary ordi- supportive. Developers needed something that was nance can make requirements more predictable, thus standardized. They need to know what the rules are, reducing the developer’s risks. Inclusionary require- but they are willing to work with us. They’re willing to ments, when coupled with development-by-right rules build upon what was accomplished in the past and or expedited processing, can also reduce delays and give this a try” (Greene 2014). financial risk for developers. In Chapel Hill, North Carolina, a college town of 60,000 Conclusion people in the state’s research triangle area, the town council passed a resolution in 2005 calling for formal Little has been written about the process through consideration of an inclusionary housing program. which local communities develop and adopt A council-appointed task force included a range of inclusionary housing policies. Nonetheless, many stakeholders, including advocates for lower-income communities have created their policies through a families and private real estate representatives, who similar process of: (1) studying and understanding the helped develop the inclusionary ordinance and recom- housing need and the full spectrum of available tools; mended its adoption. It was passed in June of 2010. (2) educating and engaging the public; (3) researching the market economics; and, (4) engaging with the real Prior to adoption of the mandatory policy, Chapel Hill began to negotiate routinely with developers to The Veloce Apartments is a transitoriented development with 64 affordable units in Redmond, Washington. Credit: City of Redmond 22 POLICY FOCUS REPORT LINCOLN INSTITUTE OF LAND POLICY estate community. CHAP TE R 4 Designing a Policy Given that no two communities are exactly alike, no two inclusionary housing policies should be identical either. But, regardless of their location, policy makers must consider a number of standard questions in order to create a program that suits local conditions. While every policy Affordable homes for seasonal ski resort workers are made possible by the inclusionary housing ordinance in Park City, Utah. Credit: ULI Terwilliger Center for Housing should address each of these considerations, the answers will differ considerably from place to place. JACOBUS INCLUSIONARY HOUSING 23 Key questions include: •   Should affordable housing units be required for times called “incentive zoning” programs), developers receive certain valuable bonuses, such as the right all projects or only for projects that voluntarily to build at higher density, in exchange for providing elect to access certain benefits? affordable homes. •   What income group should the program serve? •   Should requirements apply across the whole jurisdiction or only to targeted neighborhoods? •   What is the set-aside requirement (i.e., the share of units that must be affordable)? •   Should builders be allowed to pay a fee in lieu of Mandatory programs are more common: 83 percent of the 512 programs identified by the 2014 Network-CHP Project were mandatory (Hickey, Sturtevant, and Thaden 2014). The Non-Profit Housing Association (2007) found that voluntary programs in California providing affordable units on-site and, if so, how produced significantly fewer homes than mandatory much should it be? programs, in part because most California programs of- •   Should developers be allowed to provide the required affordable units at off-site locations? •   Should developers receive any incentives or fered only fairly modest density bonuses. In communities where development density is a hot-button issue, elected officials were unwilling to increase heights cost offsets to reduce the economic impact of significantly. However, voluntary programs have some providing affordable units? notable political and legal advantages. In a few states •   Do affordable units have to be comparable in design to market-rate units? •   How long must regulated units remain affordable? where mandatory affordable housing requirements are prohibited by law, programs that offer bonus density or other incentives in exchange for voluntary production of affordable housing may be allowed. Even where state law allows mandatory requirements, the idea of Program Structure: Mandatory or Voluntary trading density for affordable housing may be more acceptable politically than outright requirements. The more recent trend toward urban infill and tran- Traditionally, most inclusionary housing programs sit-oriented development has given rise to a new mandate the provision of on-site affordable units in breed of voluntary programs, which appear prom- market-rate developments. A small number of vol- ising. A number of cities have adopted inclusionary untary programs are structured to offer incentives in requirements that apply only to targeted areas that exchange for affordable units. benefit from significant up-zoning. However, there is no guarantee that a voluntary program will produce a Communities with a mandatory inclusionary housing significant volume of affordable housing, even when program simply require that some percentage (usually the incentives are potentially significant. 10 to 30 percent) of new units built be affordable for low- or moderate-income households. These com- A study of Seattle’s voluntary incentive zoning program munities may also offer developers incentives such found that for many projects, lower-density alterna- as increased density to offset the cost of providing tives were more economically attractive than higher the affordable units, but the developer has no choice density, due to the high cost of steel frame con- about whether to provide them. struction. Thus, even without any affordable housing requirements, most developers were unlikely to take Other communities offer developers a choice. Under advantage of the density bonus that Seattle offered these voluntary inclusionary housing programs (some- (David Paul Rosen & Associates 2014). The lesson 24 POLICY FOCUS REPORT LINCOLN INSTITUTE OF LAND POLICY seems to be that, for a voluntary program to work well, demand for housing at different price points. Inclu- the incentives have to be very valuable. sionary housing programs tend to serve low- and moderate-income households (those that earn between 60 and 120 percent of the local median income). Many cit- Identifying Beneficiaries ies face more acute housing needs at lower incomes, and some choose to design their programs to gener- Because it is not possible for cities to meet all local ate at least some units affordable to very low- and housing needs, it is necessary to prioritize certain extremely low-income residents (earning less than 50 income groups or geographic areas. Some cities prefer or 30 percent of median income). Figure 4 documents to target one particular need that is not met by the how selected cities target different income groups. market or other publicly funded programs, and other jurisdictions prefer to address some of the need Cities that want to create units for lower-income across all incomes. residents have a number of options. Common strategies are to: (1) allow developers to provide fewer units Income targets should be based on a clear analysis with deeper affordability; (2) pay developers or give of local needs and should consider both supply and them additional incentives to deepen the affordability Figure 4 Income Targeting in Selected Programs 160% Park City, UT Boulder, CO Davis, CA San Mateo, CA Davidson, NC Santa Monica, CA Chicago, IL 40% Santa Fe, NM Washington, DC Cambridge, MA Chapel Hill, NC Redmond, WA Burlington, VT 60% San Francisco, CA 80% Irvine, CA 100% Stamford, CT RENTAL INCOME LIMIT 120% Montgomery County, MD Fairfax County, VA 120% 20% 0% 0% 10% 20% 30% 40% 50% 60% 70% 80% 90% 100% 110% 120% 130% 140% 150% 160% OWNERSHIP INCOME LIMIT Data Source: Hickey, Sturtevant, and Thaden (2014). JACOBUS INCLUSIONARY HOUSING 25 Figure 5 level; (3) add additional subsidy to rent or sell units at Set-Aside Requirements in Selected Programs alternative affordability levels; and (4) accept in-lieu fees and partner with nonprofits to build housing with For example, Arlington County, Virginia, conducted a careful study of local housing needs that compared U.S. Census Bureau data on the distribution of local households by income with data on rents and home prices. Not surprisingly, the study found that the number of households earning less than 30 percent of the median income was three times greater than the number of affordable units available. It also found shortages of affordable housing for households earning up to Davis, CA Irvine, CA San Francisco, CA San Mateo, CA Santa Monica, CA 80 percent of median income, and an adequate supply of affordable homes for households earning above 80 Boulder, CO percent of median income (Sturtevant and Chapman 2014). Based on this analysis, the county’s Affordable Housing Working Group recommended targeting their inclusionary program to serve households earning 60 percent of median income or less. Geographic Targeting Some inclusionary housing programs apply the same requirements uniformly across the entire jurisdiction, Stamford, CT Washington, DC* Chicago, IL Cambridge, MA Montgomery County, MD Chapel Hill, NC some programs apply only to targeted neighborhoods expected to experience significant growth, and others Davidson, NC vary requirements by different neighborhoods. Santa Fe, NM For instance, Burlington, Vermont, requires 15 percent affordable units citywide, but it requires 25 percent of units to be affordable in higher-cost waterfront areas. On the other hand, a few cities such as Chapel Hill, North Carolina, have done the opposite and lowered their requirements in the highest-density areas because higher-density construction can be significantly Park City, UT Fairfax County, VA Burlington, VT Redmond, WA costlier. Using a different approach, Fairfax County, Virginia, varies requirements by construction type rather than by neighborhood. The requirements range from 5 percent in developments with structured parking * Washington requires the greater of 8 to 10 percent floor area or 50 to 75 percent of the bonus density. Source: Hickey, Sturtevant, and Thaden (2014). 26 POLICY FOCUS REPORT LINCOLN INSTITUTE OF LAND POLICY 40% 35% 30% 25% 20% 15% 10% 0% 5% PERCENT OF UNITS REQUIRED deeper affordability. to 12.5 percent in single-family and low-rise multifamily developers should be expected to meet. Typically, cit- developments with a sliding-scale density bonus. ies establish this basic requirement as a percentage of the units or square footage area of each development Geographically targeted programs such as these may that must be set aside to be rented or sold at afford- be more complex to design and administer, and they able prices on-site (Figure 5). still may fail to capture all the important fine-grained differences among projects. It is also worth noting that Many cities then allow developers to choose among most citywide inclusionary requirements automati- one or more alternative methods of satisfying the cally compensate for some differences in neighbor- requirement, such as paying a fee or producing off-site hood market conditions. For instance, it may be more units. Some cities allow developers to build fewer units expensive to build in high-cost neighborhoods, but a if they serve a higher-need population. In any case, the density bonus is worth more where the home prices or baseline performance option sets the economic bar rents are higher. against which other alternatives are evaluated, so it must be appropriate for local market conditions. The Set-Aside Requirement In a neighborhood of single-family homes, this duplex in Redmond, Every inclusionary housing program should also con- Washington, is affordable on the left side and market-rate on the sider how much of a city’s affordable housing needs right. Credit: City of Redmond JACOBUS INCLUSIONARY HOUSING 27 Increasingly, cities commission economic feasibility or other factors. Somerville, Massachusetts, created studies to bring real market data to bear on this its inclusionary program at a time when local nonprofit essential question. Traditional inclusionary housing developers did not have the capacity to build large programs are designed around the assumption that quantities of affordable housing. Consequently, the units will be provided on-site even if the program city set its fees very high. According to the city’s inclu- allows payment of fees as an alternative. These pro- sionary administrator, “It was a very punitive formula grams generally evaluate the economic feasibility of aimed at discouraging developers from taking this their performance requirements and then set in-lieu option.” (Center for Housing Policy 2009, p.6). As the fees so they are economically comparable to (or slight- nonprofit development community matured and built ly more expensive than) the performance requirement. capacity, the city decided that it preferred receiving Alternatively, fee-first impact or linkage programs trust fund revenue and lowered its fees. By adjusting would study the economic feasibility of the fee and its program approach in response to changing local then design a performance alternative requirement conditions, Somerville was likely able to produce (i.e., on-site construction of affordable units) that was more units than would have been generated by either economically comparable. approach applied consistently. In-Lieu Fees Under the right circumstances, off-site production with in-lieu fees can result in more affordable homes than on-site production, but increased production It’s a challenge to design requirements that work equally well for every potential real estate project, so most cities offer developers a menu of alternative ways to satisfy their affordable housing requirements. The most common alternative is to pay a fee in lieu of Figure 6 on-site production. In-lieu fees are generally paid into Approaches to Setting the In-Lieu Fee a housing trust fund and used (often along with other local funding sources) to finance affordable housing developed off-site. Jurisdictions use multiple formulas to set fee levels (Figure 6). A key factor that often shapes those decisions is whether a jurisdiction wants to encourage on-site performance or collect the revenue to leverage 1 1 Affordability Affordability Gap Gap The in-lieu fee is based on the typical difference in price between market rate and affordable units. other sources of funding to build affordable units offsite. All other things being equal, the higher the fee, the higher the chance that developers will choose to build units on-site. A number of communities have made the mistake of setting in-lieu fees far below the cost of onsite performance, and this practice has resulted in poor overall performance of the affordable housing program. Over time, a city’s preference for fees relative to onsite units may evolve based on changes in the market 28 POLICY FOCUS REPORT LINCOLN INSTITUTE OF LAND POLICY 2 2 Production Production Cost Cost The in-lieu fee is based on the average amount that the public has historically invested to actually produce each additional off-site affordable unit. Linkage Fee Programs Linkage fees (sometimes called impact fees) are an alternative to traditional inclusionary zoning programs. Although the name is similar, linkage fees should not be confused with in-lieu fees. In some states, communities can charge developers a fee for each square foot of new market-rate construction and use the funds to pay for affordable housing. These programs are actually structured to require fees rather than units on-site. Initially, commercial linkage fees were developed to apply to commercial projects where an on-site housing performance requirement would be impractical or even undesirable. More recently, as state prohibitions on rent control have been interpreted to prohibit inclusionary programs that require affordable rents, a number of communities have converted traditional programs to those based on a housing linkage fee or impact fee. A small number of “fee first” programs require payment of fees but offer as an alternative the provision of onsite units “in lieu” of paying the required fee. In these cases, the programs are almost identical to traditional inclusionary housing programs, but they are designed around a different legal rationale. To enact an affordable housing linkage fee on commercial or residential development, cities generally conduct a “nexus” study, which evaluates the extent to which new development projects contribute to the local need for affordable housing and estimates the maximum level of fees that would offset this impact of the project. There are a number of advantages to linkage fees. Like in-lieu fees, they offer flexibility and can leverage other sources of funding. However, because land is likely to be more affordable and easier to obtain in lower-income neighborhoods, a reliance on fees may further economic segregation. Another disadvantage is that linkage fee programs may generate fewer resources for affordable housing than traditional programs. An informal analysis by the Non-Profit Housing Association of Northern California found that among Bay Area jurisdictions that replaced traditional on-site performance-based programs with impact fees, all adopted impact fees were less than the in-lieu fees of their prior program. The reason was that, while the in-lieu fees had been based on the cost of providing an affordable housing unit, the impact fees were based on a nexus study. Most cities chose to set their impact fee well below the maximum fee suggested by their nexus studies to avoid possible legal challenges. is not automatic. Effective use of fees relies on the Many cities have written these fees as specific dollar presence of a number of key resources, which are amounts in their ordinances. Over time, a fixed fee not necessarily available in every community. These will drop relative to inflation and the cost of providing include the availability of other locally controlled affordable housing. Some communities keep fixed financing sources to leverage inclusionary housing fees current by enabling the city council to annually funds, the capacity of public agency staff, the avail- approve a change to the fee calculation, but these ability of local nonprofit or private partners with yearly approvals can be a challenging source of local affordable housing development experience, and controversy. In response, a number of communities the availability of land for development of affordable have begun to index their fees to allow for regular housing. Even when all these elements are present, increases (and potentially decreases) in response to successful off-site strategies require careful attention market conditions. Santa Monica, California, annually to where units are located if a program aims to achieve increases its in-lieu fee based on an index that takes some level of economic integration. into account annual changes in the cost of construction and local land values. JACOBUS INCLUSIONARY HOUSING 29 This inclusionary home in the Sand River Cohousing community was developed through the Santa Fe Homes Program in New Mexico. Credit: Pauline Sargent CAN FEES BE MORE EFFICIENT? Through the incentive zoning program in Seattle, Washington, developers who provide on-site affordable units receive bonus density in certain targeted areas. In most zones, however, the program gives developers the option to pay an in-lieu fee instead. Between 2002 and 2013, in every case where developers had this choice, they chose to pay the fee because it was far less costly leverage would be expected. Even in Seattle, over time, than producing on-site affordable units. limited land in central locations is likely to make it increasingly difficult to continue relying exclusively on Cornerstone Partnership analyzed data from Seattle’s fees to achieve meaningful economic integration. Office of Housing to better understand the outcomes of these tradeoffs (Jacobus and Abrams 2014). Con- The “opportunity cost” of providing units on-site (i.e., sistent with earlier studies, Cornerstone found that what the developer gives up by selling or renting for the city took several years to spend the fees received. less than market value) is higher for higher-priced However, by investing this money in nonprofit proj- units, but the in-lieu fee is likely to be the same for all ects, the city was able to leverage these funds with projects. As a result, when a single fee is set based on state and federal resources to produce significantly expected average costs, there will be a natural ten- more units than would have been provided in on-site dency for higher-end projects to prefer paying the fee projects. Cornerstone found that the additional $27 and lower-end projects to prefer on-site production million of in-lieu fees enabled the city to finance 616 (Figure 7). additional units that would not have been built without the inclusionary funds. In many communities, this tendency is not a problem, but some communities have found that it leads Additionally, this local money enabled the city to bring to further concentration of affordable housing in in $97 million in federal and state funds that otherwise lower-income neighborhoods. Nevertheless, some ju- were unlikely to be invested in Seattle. Furthermore, risdictions have effectively designed programs so that Cornerstone’s analysis found that Seattle invested the fees advance economic integration, and others have fees primarily in projects located downtown and in found ways to create more affordable homes without other higher-cost central neighborhoods—the same increasing segregation. neighborhoods where the projects paying the fees were located (Jacobus and Abrams 2014). Off-Site Development Other cities may have a hard time matching Seattle’s performance in this regard. Seattle has relatively high Another common alternative to on-site housing perfor- capacity both within its Office of Housing and among mance is the right to build mandated affordable units its network of nonprofits, without which lower rates of on another site. Generally this is done by constructing 30 POLICY FOCUS REPORT LINCOLN INSTITUTE OF LAND POLICY a dedicated project where all the units are affordable. A 2004 survey found that two-thirds of programs in LEVERAGING OTHER AFFORDABLE HOUSING RESOURCES California allowed developers to do off-site construction (California Coalition for Rural Housing 2004). When Many jurisdictions prohibit developers from using done well, off-site production can provide flexibility to scarce federal, state, and local affordable housing developers and increase production. However, cities funds on the same affordable units as those required need to develop guidelines to ensure that off-site by the inclusionary program. The city could end up properties are located in appropriate neighborhoods, with no increase in affordable housing units as a result built to a high standard of quality, and well-maintained of such “double-dipping.” over the long term. In general, cities are more cautious about using Santa Monica, California, has one of California’s older funds that are highly limited. For example, many cities inclusionary housing programs. It allows developers will allow developers to utilize tax abatements, but the option of providing units off-site, but only when prohibit the same projects from applying for housing doing so will result in additional public benefit. Spe- grant funds. A second general guideline is that access cifically, Santa Monica requires that builders provide to external funding should be balanced against the 25 percent more affordable units in off-site projects burdens required or requested of the developer. In than would have been required on-site. To promote many communities, developers are allowed to access economic integration throughout the community, affordable housing subsidies only when doing so off-site projects must be located within a quarter mile enables them to provide either more affordable units of a market-rate project, though projects up to one or to serve lower-income households than would mile away are allowed if they will not result in overly otherwise be required. concentrated affordable housing. Figure 7 In-Lieu Fees and Economic Integration Fees Fee Level Units High Demand Areas Lower Demand Areas JACOBUS INCLUSIONARY HOUSING 31 NONPROFIT PARTNERSHIPS AND LAND DEDICATION the seed funding to do pre-development work or to While direct off-site development can be challenging off-site production rules to encourage these partner- for both cities and developers, a number of communi- ships. A few, including New York City, allow off-site ties have found that encouraging off-site production development only if there is a nonprofit partner that through partnerships with nonprofit housing develop- will own the off-site project. purchase land. A number of cities have designed their ers facilitates implementation and may produce more affordable housing. Nonprofit developers often have Incentives considerable expertise in both building and managing affordable housing. They are skilled at combining various funding sources to get the most possible units. A The Non-Profit Housing Association of Northern well-run nonprofit is also likely to be a good steward of California (2007) and Hickey, Sturtevant, and Thaden the units, protecting the affordability in perpetuity and (2014) found that most communities offer significant potentially reducing the monitoring and enforcement incentives to developers to offset the cost of providing burden on city staff. affordable housing units. The most common incentive is the ability to build increased density, but other However, there are limits to the benefits of such part- common incentives include parking or design waivers, nerships. For example, nonprofits often do not have zoning variances, tax abatements, fee waivers, and Figure 8 Developer Incentives Density Bonus Design Flexibility Fast Track Processing Fee Deferral Fee Reduction Fee Waiver Growth Control Exemption Subsidies Tax Abatement 0% 20% 40% 60% 80% PERCENTAGE OF JURISDICTIONS THAT OFFER INCENTIVE Source: Non-Profit Housing Association of Northern California (2007). 32 POLICY FOCUS REPORT LINCOLN INSTITUTE OF LAND POLICY 100% expedited permitting (Figure 8). While a small number Park City, Utah, utilized in-lieu fees from its inclusionary zoning of communities seek to offer incentives to fully offset program to build the Snow Creek Cottages, which are deed- the cost of providing affordable units, incentives are restricted to maintain affordability. Credit: Rhoda Stauffer seen as a way to reduce but not eliminate the economic impact on development in most programs. an inclusionary housing program. If the goal of an inThese incentives are sometimes criticized as “give- clusionary requirement is to enable developers to earn aways” to developers. Calavita and Mallach (2009) “normal” profits while capturing some share of “ex- point out that incentives generally come at a real cost cess profits” for public benefit, any incentive a city can to the public sector. If inclusionary housing require- offer to make development more profitable enables ments are modest enough to be absorbed by land the imposition of a higher inclusionary requirement prices, then any incentives merely move the cost from than would otherwise be feasible. However, communi- landowners back onto the public. Incentives such ties have to carefully weigh the costs and benefits of as tax abatements and fee waivers reduce revenues each incentive and evaluate them relative to the cost available to jurisdictions, just as cash subsidies to of meeting specific affordable housing requirements. development projects would. Even planning incentives such as density bonuses, which appear free, result in increased infrastructure and other public costs. Design Standards When communities base inclusionary requirements It is difficult to design and implement inclusionary on detailed feasibility studies, it becomes clear how housing policies with appropriate standards to ensure incentives can play a role in maximizing the impact of quality affordable housing, given developers’ under- JACOBUS INCLUSIONARY HOUSING 33 Figure 9 Affordability Terms for Selected Inclusionary Housing Programs Rental For Sale 40% 35% 30% 25% 20% 15% 10% 5% 0% 0 to 14 years 15 to 29 years 30 to 49 years 50 to 98 years 99 years or perpetual Includes 330 inclusionary housing programs for which affordability term data is available Source: Hickey, Sturtevant, and Thaden (2014). standable desire to minimize costs. Some cities have regarding minimum unit size and amenities. So long as insisted that affordable units be identical in every affordable units meet these standards, they can be dif- respect to market-rate units, but it can be hard to ferent or less costly to build than market-rate homes. defend the public policy rationale behind requiring granite countertops and luxury ranges in affordable units. On the other hand, providing developers with no Affordability Preservation standards has its own risks. One California developer sold affordable units without any kitchen cabinets In booming housing markets, it would do little good (Jacobus 2007a). to require affordable homes or apartments without providing a mechanism to ensure that the units remain An additional concern is the location of affordable affordable over time. units in market-rate developments. There might not be clear public benefit in requiring that a proportional Between 1973 and 2005, Montgomery County, Mary- share of units with waterfront views are affordable, land, created more than 12,000 affordable homes but some standard regarding where affordable units through its widely copied inclusionary program. Be- can be located is clearly appropriate. cause the affordability of those homes was regulated for only 10 years, however, by 2005 only 3,000 of those Many communities develop specific minimum stan- units were still affordable (Brunick and Maier 2010). dards. Some programs require that affordable homes If inclusionary programs are to create and preserve be externally identical to market-rate units, but others mixed-income communities, long-term restrictions provide developers with a list of specific requirements are vital for the program to have a lasting impact. After 34 POLICY FOCUS REPORT LINCOLN INSTITUTE OF LAND POLICY all, if homes expire out of the program and return to Policy makers sometimes feel that they are forced to market rate after a few decades, the program won’t choose between preserving affordability and offering actually increase the stock of affordable housing. wealth-building opportunities to homeowners. However, research strongly suggests that well-designed inclusionary housing programs can achieve both goals. Well-designed inclusionary housing programs offer homebuyers meaningful and safe asset-building opportunities while A team from the Urban Institute studied economic outcomes for buyers in seven homeownership programs with long-term affordability restrictions and found that sellers were able to experience significant concurrently preserving a sustainable equity accumulation even when the resale prices were stock of homes that remains affordable restricted to preserve affordability (Temkin, Theodos, for future generations. and Price 2010). For example, the typical owner of an inclusionary unit in San Francisco, California, received $70,000 when he sold the home. Even with the The overwhelming trend has been for inclusionary strict price restrictions on resale, the typical owner housing programs to adopt very long-term affordabil- earned an 11.3 percent annual return on the home ity periods (Figure 9). In 2005, Montgomery County investment—far more than would have been earned amended its program to require 30 years of afford- through other investment options (Temkin, Theodos, ability for new projects, and to administrate a new and Price 2010). 30-year restriction each time a property is sold. A recent national study found that more than 80 percent Well-designed inclusionary housing programs are able of inclusionary housing programs require units to to offer homebuyers meaningful and safe asset-build- remain affordable for at least 30 years, and one-third ing opportunities while concurrently preserving a of those require 99-year or perpetual affordability sustainable stock of homes that remains affordable (Hickey, Sturtevant, and Thaden 2014). Even programs for future generations. with 30-year affordability restrictions frequently aim to preserve affordability in perpetuity by “resetting the clock” on each transaction and by maintaining the Conclusion preemptive option to buy back the unit upon transfer. Communities that are developing inclusionary housIt is not entirely clear who benefits from shorter-term ing programs must take the time to consider carefully restrictions. For homeownership projects, a developer each of the issues described above. Because real and forced to sell units with 15-year restrictions faces important political and market conditions differ from the same economic cost as selling units with 99-year place to place, there is no single best approach that restrictions. For rental properties, the economics are should be used everywhere. However, that does not a bit more complex. An investor might pay more for mean that each jurisdiction has to reinvent the wheel. a property with rent restrictions that expire after 15 Inclusionary housing is a well-tested local policy, and years than for one with 99-year restrictions, but the much has been learned about how to make it work in a difference might be slight. In other words, the length of variety of contexts. affordability makes a big difference to the long-term impact of the program, but only a small difference on the front end. JACOBUS INCLUSIONARY HOUSING 35 CH AP TER 5 The Challenges of Economic Integration The desire to create and sustain more mixed-income In San Francisco, 1400 Mission is a 100-percent affordable apartment communities has been a key motivation behind many complex built by the nonprofit Tenderloin inclusionary housing programs. The evidence suggests Development Corporation. Credit: that most inclusionary programs are able to deliver Tenderloin Development Corporation affordable housing efficiently and at the same time integrate those units into areas of economic opportunity that other affordable housing programs have difficulty reaching. At the extremes, however, communities are sometimes forced to choose between housing the greatest number of households and integrating that housing into the greatest range of environments. 36 POLICY FOCUS REPORT LINCOLN INSTITUTE OF LAND POLICY Does support for this general goal of economic integration imply that we need to ensure integration into Mixed Income, Mixed Results every project? To address the more extreme cases, it is Since the mid-1980s, a broad consensus among schol- important to look closely at the motivation for polices ars and urban planners has emerged in support of the that promote economic integration, the research on idea that housing policy should encourage the creation the effectiveness of mixed-income housing, and the of more mixed-income communities. The work of pros and cons of each approach (Table 1). Recent William J. Wilson (1987) highlighted the serious and experiences in San Francisco and New York City offer compounding challenges that result from overcon- insights into the challenges of meeting broad goals centration of urban poverty and suggested that social and expectations with a single policy. isolation of people in high-poverty neighborhoods Table 1 Comparison of On-Site and Off-Site Production ON-SITE OFF-SITE ADVANTAGES DISADVANTAGES • Ensures access to high-opportunity neighborhoods • Is easier to enforce design quality • Has low risk of ongoing maintenance problems • Provides integration in the same building, which can be symbolically important and help build public support • Can be difficult to monitor scattered units • May produce fewer family-sized units • May not be economically feasible for all project types • Is harder to incorporate very lowincome or special needs residents • Can be more cost efficient (i.e., can often produce more total units) • Can leverage other affordable housing subsidies to produce additional units or serve lowerincome residents. • Can design and operate properties to meet the needs of the local population (e.g. family units, amenities, social services, etc.) • May concentrate affordable units in lower-income areas • May produce lower-quality buildings • May lead to lower-quality long-term maintenance • Presents risks of “double dipping,” whereby developers reduce their costs by relying on scarce affordable housing subsidies JACOBUS INCLUSIONARY HOUSING 37 might lead to the creation of an “underclass” that was whether children moved up or down the income ladder very hard to escape. While the supposed “culture of relative to their parents. Surprisingly, the study found poverty” does not appear to explain the results, there that the poverty rate in the neighborhood where is clear evidence that even better-off residents suffer children grew up strongly predicted their economic significant social and economic disadvantage when mobility as adults even more strongly than differences they live in neighborhoods with very high concentra- in their parents’ education level or occupation tions of poverty. (Sharkey 2009). In one example, the Pew Charitable Trust’s Economic It is easy to see that children who live in distressed Mobility Project followed 5,000 families to determine communities face tougher odds. But what we haven’t Case Study: San Francisco San Francisco’s Central Market neighborhood has been changing. One of the most high-profile changes has been a new, 19-story luxury apartment building called NEMA, located directly across the street from Twitter’s new headquarters. NEMA is billed by its developer as not simply upscale but “inspirational” living because of the wide range of high-end amenities, from 24/7 spa treatments to dog walking services. Like other recent developments, NEMA was required to rent 12 percent of its 750 units to low-income residents at affordable prices. To document this program, filmmaker Michael Epstein followed one of the lower-income families that moved into NEMA. After falling on hard times, the Rameriz family had been living in a van under the Golden Gate Bridge and then briefly in a homeless shelter before moving into the gleaming new NEMA tower. And yet Yesenia Rameriz describes her family’s new living situation as “awkward.” The building has no other children, but it does have a “doggie spa” (Epstein 2014). Next door to San Francisco’s NEMA apartment tower, another residential tower is being built by the nonprofit Tenderloin Neighborhood Development Corporation (TNDC). Like the affordable units at NEMA, this project also resulted from San Francisco’s inclusionary housing program. But in the TNDC 38 POLICY FOCUS REPORT LINCOLN INSTITUTE OF LAND POLICY project, all of the 190 apartments will be affordable to low- or moderate-income families. Where NEMA offers mostly studio and one-bedroom units, TNDC’s project has mostly two-bedroom and even some three-bedroom apartments. TNDC was able to build this project with financial support from the developer of a nearby 650-unit luxury condo project that elected to take advantage of the off-site production option under San Francisco’s inclusionary program (Conrad 2014). This off-site partnership will produce far more affordable units than the developer would have been required to provide on-site. This kind of compromise has been controversial in San Francisco, where many housing advocates are understandably concerned that developers will see the off-site option as a loophole, allowing them to provide substandard housing in undesirable locations. On-site inclusion of affordable units within market-rate projects seems to work well most of the time, and it remains the city’s preferred outcome. Most of the city’s inclusionary residents blend comfortably into market-rate projects where the cost of affordable and market-rate units are not quite so far apart. Collecting fees or creating off-site projects might be less efficient in many of these cases. But luxury projects like NEMA, where the benefits of inclusion decline as the costs increase, make it clear that on-site units may not always be the best option. been able to prove before is whether those underprivileged neighborhoods attract families who would Case Study: New York face challenges anywhere, or whether it is something about the places themselves that negatively affects the kids. A new study from Harvard University (Chetty and Hendren 2015) has added very strong new evidence to support the conclusion that the places themselves matter. Economists studied children who moved from “worse” to “better” neighborhoods and found that kids who grew up in better neighborhoods earned more as adults when compared to kids who didn’t move or who moved to a worse neighborhood. And the effect grew over time. The younger kids were when they moved, the greater the gains. Similarly, the researchers found that younger siblings in families that moved experienced better economic outcomes relative to their older brothers and sisters who spent less time in the better neighborhood before entering adulthood. This research suggests that housing policies encouraging greater economic integration will lead to better economic outcomes for lower-income children. Concentrated poverty was clearly an outcome of the housing policies of the mid-twentieth century. But by the end of the century, many housing programs explicitly began seeking to create more mixed-income com- In 2009, New York City made a set of changes to its zoning rules—including one that would allow developers of inclusionary projects to concentrate their affordable units in separate buildings on the same lot. Separating the affordable units in this way was considered more economically efficient and enabled these developers to access additional tax benefits. While many cities prohibit this practice, New York’s inclusionary program is voluntary. After considering the alternative—developers opting out of the program—city leaders decided that the benefit of more voluntary units would outweigh any negative consequences. Five years later, this obscure change of policy made national headlines because of the placement of a single door on one property. Several developers had already taken advantage of the new policy without apparent controversy. But an approved development on Riverside Boulevard came under intense public scrutiny because it featured two doors—one on Riverside Boulevard for buyers of the luxury condos selling for up to $25 million, and one on 62nd Street for the tenants paying as little as $850 a month. munities. A range of mixed-income housing programs and policies have been studied widely, and while the results are sometimes contradictory, the evidence paints a fairly consistent picture of both the potential and the limitations of mixed-income housing. On the positive side, lower-income residents appear to benefit socially and economically from mixed-income communities. In a series of carefully designed experiments, inner-city public housing residents were offered housing vouchers that would enable them to The New York Times referred to the second door as a “poor door” and called the practice “distasteful” (Bellafante 2014). A state assemblywoman said, “It looks and smells like discrimination” (Navarro 2014). Somehow, in a city that had long allowed off-site development, the idea of separating affordable residents within a site had seemed like an acceptable compromise. But the image of mixed-income buildings with two different doors touched a raw nerve with the public. rent market-rate apartments for no more than they had been paying in public housing. Families that moved to neighborhoods with low poverty levels saw JACOBUS INCLUSIONARY HOUSING 39 physical and mental health improvements and in- Integration of lower-income residents into middle- and creased self-esteem and motivation. The studies also upper-income neighborhoods can be very valuable, showed that those who moved to higher-income areas but integration in the same building may offer few were more likely to be employed, although their wages additional benefits. were no higher than those of residents who relocated in low-income neighborhoods (Levy, McDade, and Dumlao 2011). Ensuring Access to Opportunity This research result does not mean that on-site performance is not a key way to achieve the real benefits Integration of lower-income residents into middle- and upper-income neighborhoods can be very valuable, but integration in the same building may offer few additional benefits. that economic integration does offer. Inclusionary housing programs with on-site performance requirements may be one of the very few successful strategies available for integrating lower-income housing into high-opportunity neighborhoods at all. Recent research has shown just how hard it is to achieve economic integration through traditional af- Many policy makers pursued mixed-income housing fordable housing strategies. A 2012 New York Univer- policies in the hope that social interactions between sity study found that the vast majority of subsidized lower-income and higher-income residents would affordable housing was located in neighborhoods lead to better access to jobs or other resources for with poor performing schools. The schools nearest to lower-income residents. The research clearly suggests public housing projects had a median state test score that these hopes are not realistic. Explaining her op- ranking in the 19th percentile (81 percent of schools position to “poor doors,” Manhattan Borough President performed better). Low Income Housing Tax Credit Gale Brewer described her aspirations for inclusionary projects did slightly better; their nearest schools housing to The Wall Street Journal: “I’m hoping that as ranked at the 30th percentile. But even families time goes on, people will share play dates, and I hope with portable housing choice vouchers ended up in that they’ll do BBQs together” (Kusisto 2014). locations where the nearest school had a median rank at the 26th percentile. For a variety of reasons, these The Urban Institute reviewed dozens of studies of families who should have been able to rent anywhere housing programs that promoted mixed-income com- ended up in neighborhoods where 75 percent of kids munities and found little evidence of any meaningful qualified for free lunch at school (Ellen and Horn social interaction between lower-income and high- 2012). Decades after embracing “deconcentration of er-income neighbors in mixed-income developments. poverty” as a federal housing policy goal, most federal It also found no evidence that lower-income residents programs don’t appear to be achieving meaningful reliably benefitted from the employment connections economic integration. or other “social capital” of their higher-income neighbors (Levy, McDade, and Dumlao 2011). Even among By contrast, the results of another 2012 study suggest members of the same income and racial groups, this that inclusionary housing programs have been more kind of social interaction among neighbors appears to successful in achieving this goal. Heather Schwartz be rarer than is often imagined. and her colleagues at the RAND Corporation mapped the locations of affordable units created by inclusion- 40 POLICY FOCUS REPORT LINCOLN INSTITUTE OF LAND POLICY ary policies in 11 cities. They found that the typical households into higher-income neighborhoods. While inclusionary unit was in a neighborhood where only 7 we should be careful not to expect significant social percent of the population lived in poverty (half the na- mixing, the real economic and health benefits from tional average for all neighborhoods). Children in these living in higher-opportunity locations are sufficient inclusionary units were assigned to schools with state to justify policies that promote integration. But for a test score ranks in the 40th to 60th percentile and variety of reasons, it is very difficult to build affordable with lower-than-average numbers of students eligible housing in higher-opportunity neighborhoods. Inclu- for free lunches. Noting the stark contrast with other sionary housing is one of the only housing strategies affordable housing programs, the authors concluded that effectively integrates lower-income households that “while [inclusionary housing] programs serve rela- into higher-income, higher-opportunity locations. tively more-advantaged families than other subsidized housing programs, the degree of access [inclusionary housing] provides to low-poverty neighborhoods is still remarkable” (Schwartz et al. 2012, p. 15). 40 Frazer Court in Redmond, Washington, offers six affordable Local policymakers have to struggle with how much units to families making 80 percent of the area’s median income. importance to place on integrating lower-income Credit: City of Redmond JACOBUS INCLUSIONARY HOUSING 41 CH AP TER 6 Addressing Legal Concerns by Ben Beach State and Federal courts have repeatedly upheld incluA father and daughter anticipate construction of their affordable home in sionary housing measures, which have been adopted by the Old Las Vegas Highway development hundreds of jurisdictions across the country. While some in Santa Fe, New Mexico. Credit: John state laws have substantially limited the options available Baker Photography to local policy makers, in any jurisdiction there is almost always a path to an effective, legally defensible inclusionary policy. This chapter addresses four of the most important legal considerations for inclusionary housing programs: (1) takings standards; (2) on-site performance requirements; (3) linkage or impact fees; and (4) fees collected in lieu of providing required units on-site. It also looks at policy and priority differences among states. 42 POLICY FOCUS REPORT LINCOLN INSTITUTE OF LAND POLICY Takings Standards While a number of cases have established some clear guidelines, the exact treatment of various inclusionary The legal issue most commonly implicated by in- housing policies is still being considered by courts clusionary housing measures is known as “takings,” across the country, and it may be some time before all derived from the prohibition in the U.S. Constitution the relevant issues are resolved. Two important ques- against taking private property without just tions can help make sense of the confusion: (1) Is the compensation. Courts confronted with a takings measure in question imposed ad hoc or is it generally challenge to an inclusionary housing measure may applicable?; and (2) Is the purpose of the measure to apply one of two quite different standards. One mitigate a project’s impact or instead to accomplish standard, set forth by the U.S. Supreme Court in a legitimate regulatory goal under the jurisdiction’s the Penn Central case, should apply to generally police power? applicable land use controls, such as a simple mandatory inclusionary housing ordinance that merely It is clear that generally applicable on-site affordable requires on-site inclusion or off-site production of housing requirements can be structured as expres- affordable units. To be considered a taking under the sions of a jurisdiction’s police power to regulate land Penn Central precedent, a local ordinance would have use. If so, they should be evaluated under the Penn to be so drastic in its effect that it was functionally Central standard when subject to a federal takings equivalent to a “classic taking” in which the govern- challenge. To date, no court has used the Nollan/Dolan ment directly appropriates private property. standard to review a generally applicable mandatory inclusionary zoning ordinance. In a pair of cases known as Nollan and Dolan, the Supreme Court outlined a stricter standard for exac- It is also clear that measures imposed ad hoc should tions—development conditions imposed ad hoc or be evaluated under Nollan/Dolan. And it is somewhat through negotiation as part of the land use approval likely that linkage fees or impact fees designed as process. These cases center on the “unconstitutional mitigations will be evaluated under Nollan/Dolan, conditions” doctrine, which limits the government’s or some other standard examining the relationship authority to condition the grant of a privilege or benefit between the cost of compliance and the impact of (such as a building permit) when a proposed condition the project on the problem. What is less clear is how contains a requirement (such as a requirement to the courts should treat fees charged in lieu of on-site dedicate land to the public) to give up or refrain from performance, which seem to be quite different from exercising a constitutional right. Under the Nollan/ traditional land use regulations. Dolan standard, such a requirement must: (1) have an “essential nexus” to the impact of the development Which of these standards a court chooses to apply in that is being mitigated by the condition (i.e., there evaluating a challenge to an inclusionary housing mea- must be a clear relationship between the impact of sure has significant implications for policy making. the development and the required mitigation); and (2) First, the Nollan/Dolan standard requires extensive the condition must be “roughly proportional” to the documentation to establish the appropriateness of impact that the development is likely to have on the the measure in question. Second, the proportionality problem that the condition is intended to mitigate. The requirement places an upper limit on the level of fees Court recently clarified that the Nollan/Dolan analysis charged that is almost certainly well below any upper applies to conditions imposed in the development limit imposed by the Penn Central standard. Under approval process that take the form of monetary fees Penn Central, a land use regulation can significantly (Koontz v. St. Johns River Water Management District]). constrain the potential uses of a property regardless JACOBUS INCLUSIONARY HOUSING 43 of whether or how much a given development would Realty Company; Village of Belle Terre v. Boraas). The contribute to a social problem—as long as the regu- legitimate purposes of inclusionary housing ordi- lation advances a legitimate government purpose and nances may include accommodating the community’s leaves the property owner with some profitable use of projected needs for affordable housing, addressing the the property. effects of prior exclusionary zoning, providing equal opportunity to all income levels, providing housing Recently, the California Supreme Court addressed for the workforce, addressing the dwindling supply several of these issues in a case involving a takings of land, and affirmatively advancing integration and challenge to the City of San Jose’s inclusionary hous- other fair housing goals (California Affordable Housing ing ordinance, Cal. Bldg. Indus. Assn. v. City of San Jose, Law Project/Public Interest Law Project 2010). Unlike a 61 Cal. 4th 435 (2015). The ordinance required that housing impact fee, for example, inclusionary housing developers of residential projects with 20 or more new, ordinances are not principally intended to mitigate the additional, or modified dwelling units set aside 15 per- impact of particular development projects, and should cent of on-site for-sale units as affordable, or meet not be described as such. one of the alternative performance requirements, such as providing affordable housing off-site or paying an It is sometimes argued that inclusionary housing in-lieu fee. The court concluded that the ordinance requirements should be evaluated under the Nollan/ should be treated as a traditional land use control, Dolan standard instead. The California Supreme not an exaction, and should be reviewed under the Court’s approach to the question of which standard to deferential standard reserved for such controls. The apply has been widely used in other states. Under that court observed that the city’s legitimate purposes in approach, generally applicable land use controls, even adopting the ordinance were to increase the supply of when applied to development through the mechanism affordable housing and to distribute affordable hous- of the land use approvals process, are considered po- ing across economically diverse neighborhoods. The lice power legislation. The more rigorous Nollan/Dolan court clarified that the “unconstitutional conditions” review is reserved for measures imposed on individual doctrine applies only in cases where the condition at development projects on an ad-hoc basis (Ehrlich issue, if imposed directly by the government, would v. City of Culver City). It is thus advisable for local amount to a taking because it required conveyance of jurisdictions to adopt citywide or neighborhood-wide a property interest. San Jose’s inclusionary housing inclusionary requirements that are generally applica- ordinance, the court determined, did not require the ble, rather than those imposed ad hoc during the land subject developer to convey property to the public, but use approval process. instead operated as a price control on housing reviewable under Penn Central. A jurisdiction may want to undertake an economic feasibility study to support any contemplated inclu- On-Site Performance Requirements sionary housing requirement. Such a study should aim to satisfy the Penn Central test by showing that the proposed requirements do not completely disrupt economic returns from the project in question. A Citywide or neighborhood-wide inclusionary require- feasibility study should factor in any subsidy or other ments, where properly drafted, should be entitled economic value contributed by the local government to great judicial deference as generally applicable to the projects, through up-zoning or other regulatory exercises of the local government’s authority to regu- relief. Jurisdictions should not rely on a nexus study late land use under its police powers (Euclid v. Amber to support generally applicable on-site performance 44 POLICY FOCUS REPORT LINCOLN INSTITUTE OF LAND POLICY requirements because doing so might imply that the a nexus study, which demonstrates the relationship inclusionary requirements were intended to mitigate between a contemplated fee and the impact of the project impacts rather than advance legitimate police development that the fee is intended to mitigate. power objectives. Commonly, these studies use well-established industry methodologies to calculate the contribution of a Local jurisdictions can take these additional steps to set of projects (residential or commercial) to worker help strengthen the legal defensibility of their inclu- in-migration and the ensuing need for new affordable sionary housing requirements: (1) include a goal in the housing. Such studies are designed to help localities community’s comprehensive or general plan that fu- meet the Nollan/Dolan test by establishing both the ture growth of the community must include a specified “essential nexus” and “rough proportionality” required percentage of affordable housing; (2) make clear that by the Court in those cases. any on-site performance requirement is an exercise of the city’s police power and advances a legitimate government interest, and is not intended to mitigate In-Lieu Fees the impact of development; (3) make administrative waivers available; and (4) consider including a periodic Is an in-lieu fee the kind of fee imposed in the devel- review of the on-site performance affordable housing opment approval process that is subject to Nollan/ percentage in light of market conditions. Dolan? In development fee cases, courts have followed the California approach of distinguishing between Linkage and Impact Fees legislative measures and those imposed on an ad hoc basis. “With near uniformity, lower courts applying Dolan . . . have expressly declined to use Dolan’s In general, federal and state courts have repeatedly heightened scrutiny in testing development or impact upheld impact fees (and other similar development fees imposed on broad classes of property pursuant fees) against challenges maintaining that they are to legislatively adopted fee schemes” (Rogers Mach. v. takings. However, courts are likely to apply the Nollan/ Wash. County). As long as the in-lieu fee requirement is Dolan standard in evaluating such fees. structured to allow for negligible discretion in calculation and application, the fee should not be subject In Commercial Builders of Northern California v. City of to Nollan/Dolan because it is not ad hoc or negotiated Sacramento, the Ninth Circuit Court upheld Sacra- (San Remo Hotel v. City and County of San Francisco). mento’s commercial linkage fee ordinance against a takings challenge. The challengers argued that Sacra- However, California courts have further determined mento failed to show that the nonresidential develop- that even a generally applicable formulaic devel- ment on which the fee was imposed generated a need opment impact fee must still bear a “reasonable for affordable housing proportionate to the burden relationship” to the impacts the fee is intended to created by the fee. The court rejected this argument, mitigate (Ehrlich v. City of Culver City), a standard reasoning that the ordinance “was implemented only somewhere between Penn Central and Nollan/Dolan after a detailed study revealed a substantial con- in its deference to local authority. In the event that a nection between development and the problem to be court views an in-lieu fee as an impact fee (rather than addressed” (Id. at 875). as a land use control) and applies such a standard, the local government still has a strong defense available. Local jurisdictions contemplating adoption of linkage An inclusionary in-lieu fee is customarily structured or impact fees would be well-advised to commission to cover the cost of developing affordable units that JACOBUS INCLUSIONARY HOUSING 45 would otherwise have been included on-site in the Local jurisdictions in all these states have, despite project. That “loss” of on-site units is precisely the these legal limitations, successfully implemented at impact the fee is intended to mitigate. Thus, where least one of the inclusionary housing strategies dis- they follow conventional design, such fees are likely to cussed in this report. be seen as meeting the California courts’ “reasonable relationship” standard. The National Association of Home Builders produced a summary of state laws that either support or impede In City of San Jose, the court quickly dismissed the local inclusionary housing ordinances. They found that challengers’ contention that the presence of an in-lieu 13 states have statutes that either explicitly or implic- fee option meant that the ordinance as a whole should itly authorize local inclusionary policies (Connecticut, be reviewed under a heightened standard appropriate Florida, Illinois, Louisiana, Maryland, Massachusetts, for measures designed to mitigate impact. The court Minnesota, Nevada, New Hampshire, New Jersey, noted that no developer was required to pay the in-lieu Rhode Island, Vermont, and Virginia). Two states fee and that a developer could always opt to satisfy have explicit prohibitions against inclusionary the ordinance by providing on-site affordable housing housing (Texas and Oregon). In many of the remaining units. 61 Cal. 4th at 476. states, key state policy concerns shape the design of local inclusionary policies (Hollister, McKeen, and McGrath 2007). There is every reason to believe that courts will continue to uphold the basic right of local governments to promote the In some cases, changes or clarifications to state law can help promote local adoption of inclusionary housing policies. Florida housing advocates managed a decade-long campaign that resulted in welfare of their residents by ensuring the the passage of more than a dozen inclusionary ordi- availability of housing that is affordable nances. This campaign succeeded in large part due to lower-income households. to a sustained legislative effort to pass two laws: one to ensure that price and rent control provisions in mandatory inclusionary programs were legal under Variations Among State Laws state law, and one to support the creation of local It is no coincidence that inclusionary housing pro- other housing units (Ross 2014). community land trusts to manage inclusionary and grams are heavily concentrated in a few states. California, New Jersey, and Massachusetts all have (or had) state laws that strongly encourage or even Conclusion require local inclusionary housing policies. Adopting inclusionary policies in other states often requires sig- It is important for jurisdictions adopting inclusionary nificant research into any special state constitutional housing programs to pay close attention to the evolv- provisions or statutes that might limit local authority. ing case law on this issue. But there is every reason to believe that courts will continue to uphold the basic In California, Colorado, and Wisconsin, state courts right of local governments to promote the welfare of have interpreted laws relating to rent control to bar their residents by ensuring the availability of housing localities from using inclusionary housing measures that is affordable to lower-income households. to regulate rents, but not the price of ownership units. 46 POLICY FOCUS REPORT LINCOLN INSTITUTE OF LAND POLICY CHAP TE R 7 Planning for Successful Implementation The success of an inclusionary housing ordinance rests on the jurisdiction’s ability to appropriately staff and fund ongoing program administration. Staff must have specialized skills to successfully engage with developers of complex real estate projects. Once inclusionary units are completed, monitoring and stewardship of rental units and Through the City of Austin’s S.M.A.R.T. Housing Program, the Mueller development offers about 350 homes for sale or rent to households earning no more, respectively, than 80 or 60 percent of the City’s Median Family Income. Credit: Catellus Development especially homeownership units require dedicated staffing on an ongoing basis to ensure that units remain affordable and that the program is meeting its stated goals. The cost of this staffing is small relative to the value of the affordable housing being managed, but jurisdictions have to plan for this ongoing expense. JACOBUS INCLUSIONARY HOUSING 47 Case Study: Denver, Colorado The case of Denver, Colorado, illustrates how staffing differences in two types of inclusionary housing programs made a big difference in preventing foreclosures. In 2012, the city’s 10-year-old Inclusionary Housing Ordinance (IHO) faced an unprecedented challenge. Staff reported to the City Council that the IHO had created 1,155 affordable homeownership units, but that 185 of those homes had been lost to foreclosures (Denver Office of Economic Development 2012). This news created enormous political pressure to reform or even repeal the program. Some were tempted to conclude that inclusionary housing could not work in Denver. At the same time that Denver was developing a citywide inclusionary program in the early 2000s, the commission overseeing the reuse of Denver’s Lowry Air Force Base established its own inclusionary housing policy. Developers at Lowry were required to make roughly 900 homes affordable to lower-income families (Webster 2005). Over the same period of time that 185 of the city’s inclusionary units went into foreclosure, there were zero foreclosures at Lowry. What caused this difference? Roles for Program Staff or Contractors Successful implementation of an inclusionary housing program requires staff with specialized skills necessary to coordinate and oversee complex real estate developments, screen buyers and tenants, and then monitor units over time. Table 2 summarizes some of the functions that staff or contractors typically perform. SUPPORTING THE PRODUCTION OF AFFORDABLE UNITS No matter how detailed and well-conceived an inclusionary housing ordinance is, some situations will call for human judgment to implement the program fairly and act in the best interest of the community. It is not sufficient to simply publish rules and expect developers to implement them successfully. City staff, or staff of some partner agency, must help developers interpret and apply the inclusionary policy. In many communities, staff has some discretion to waive certain requirements, approve alternatives, or bring additional resources such as fee waivers or housing funds to the table for projects to achieve high levels of Lowry had created a community land trust (CLT) to monitor and manage its affordable homes. While the city had a single staff person managing more than 1,000 affordable units, Lowry’s CLT had two to three people working closely with only 186 homeowners. The CLT pushed for more affordable prices, prevented buyers from taking out adjustable rate mortgages, and stepped in when homeowners got into trouble (Harrington 2013). In 2013, Denver established emergency measures that helped avoid further foreclosures. In 2014, the City Council passed a comprehensive redesign of the program that included provisions to increase the staffing for administration and to outsource some capacities. public benefit. However, achieving flexibility is no simple task. Staff has to work closely with developers to evaluate the impact of inclusionary requirements on a project’s financial performance and to develop alternative proposals that benefit the developer and the community. This requires some level of technical skill, and cities sometimes struggle to find staff with the necessary experience. Occasionally, cities turn to outside consultants or other partners to perform these tasks. Mammoth Lakes, California, is a ski resort town with very high housing costs. The Town adopted affordable housing mitigation regulations that require developers of new housing, hotels, resorts, or commercial real 48 POLICY FOCUS REPORT LINCOLN INSTITUTE OF LAND POLICY Table 2 Key Functions to Be Performed by Staff or Contractors 1 Supporting the Production of Affordable Units •   Communicating program requirements to developers and property managers •   Reviewing development proposals for compliance with rules •   Negotiating certain requirements to maximize production (in some communities) •   Ensuring that affordable units meet appropriate design and location standards •   Ensuring timely payment of fees (if any) •   Planning and implementing reinvestment of fee revenue to produce affordable units 2 Monitoring and Stewarding Rental Units •   Setting affordable rents •   Working with property managers to ensure fair marketing of units •   Monitoring eligibility screening for new tenants •   Recertifying annual incomes of tenants •   Enforcing requirements (as necessary) 3 Monitoring and Stewarding Homeownership Units •   Setting initial prices at an affordable level •   Marketing homes to eligible buyers •   Ensuring that potential buyers receive homebuyer education •   Verifying that applicants understand program requirements and resale restrictions •   Screening applicants against eligibility requirements •   Working with lenders to ensure access to appropriate financing •   Monitoring homes for owner occupancy over time •   Managing resales to future income-eligible buyers at formula price •   Enforcing program requirements when necessary estate to develop new affordable housing units as part of these projects. However, Town leaders recognized MONITORING AND STEWARDING RENTAL UNITS that the community lacked the capacity to manage detailed negotiations with developers. They turned to The majority of inclusionary programs rely heavily a local nonprofit, Mammoth Lakes Housing (MLH), for on property management companies to ensure assistance. The Town contracts with MLH to provide ongoing compliance of inclusionary rental units, but a number of services, such as monitoring their entire many administrators report significant challenges portfolio of resale-restricted housing, collecting data resulting from this approach (Hickey, Sturtevant, and on housing needs, working with private developers to Thaden 2014). ensure compliance with the housing mitigation ordinance, and assisting the Town to address its housing Programs frequently expect managers of rental goals (Hennarty 2013). properties with inclusionary units to market available JACOBUS INCLUSIONARY HOUSING 49 units, screen applicants for program eligibility, docu- as well as resources, such as sample documents and ment and annually recertify tenant incomes, and take templates to facilitate the adoption of best practices action to address noncompliance. Many cities provide (Cornerstone Partnership 2014a). ongoing training for property managers to help them understand the rules they are charged with enforcing, Ownership units require more active involvement, and and most undertake some level of monitoring to en- property management companies do not offer the sure that managers are applying the rules appropriate- needed expertise for these activities. As a result, most ly and equitably. However, problems are still common. cities with portfolios of inclusionary homeownership units have significant staffing dedicated to managing and monitoring those units. Programs must plan ahead to adequately cover administrative costs in both highgrowth and low-growth periods. NeighborWorks America and NCB Capital Impact reviewed the staffing levels among a wide range of affordable homeownership programs with long-term restrictions including many inclusionary housing programs. They found that staffing levels varied significantly with small programs managing fewer than 100 Most property management companies have no expe- units per employee and some larger programs over- rience with affordable housing programs, and it can be seeing 500 or more units per employee. Their report challenging to rely on them to enforce potentially com- concluded that, “It seems prudent to plan on staffing plex public agency rules. As a result, a growing number at the level of one full-time staff person (or equivalent) of programs are centralizing some of these responsi- focused exclusively on post-purchase monitoring and bilities, often in-house. Hickey, Sturtevant, and Thaden resale administration for every 150 to 300 affordable (2014) describe how the City of San Mateo, California, homeownership units” (Jacobus 2007b). centralized waiting lists and screening due to the high turnover of property managers. Now the city manages Many cities have turned to third-party administrators a single applicant pool and sends pre-screened ten- to assist with the tasks of monitoring and enforcing ants to property managers to fill vacancies. deed restrictions on homeownership units. These third-party partners are most often nonprofit organi- MONITORING AND STEWARDING HOMEOWNERSHIP UNITS zations, but a number of private firms provide admin- Ensuring long-term affordability for homeownership lar promise is when jurisdictions work with community units is more challenging than for rentals, and requires land trusts (CLT) to implement inclusionary programs. attention to a wider range of issues. Cornerstone Part- For example, Community Home Trust, a CLT in Chapel nership and the National Community Land Trust Net- Hill, North Carolina, plays a key role in the administra- work led a year-long process that engaged dozens of tion of the city’s inclusionary housing program. istrative services to dozens of local jurisdictions in New Jersey. One type of partnership showing particu- practitioners and several national homeownership organizations to create a set of Stewardship Standards to preserve long-term affordability. The standards Funding Administrative Costs include more than 41 independent program elements Programs must plan ahead to adequately cover ad- and policies that participants believed were essential ministrative costs in both high-growth and low-growth for successfully preserving long-term affordability periods. PolicyLink documented the many sources 50 POLICY FOCUS REPORT LINCOLN INSTITUTE OF LAND POLICY that inclusionary housing programs rely on to fund The Arbor Rose development in San Mateo, California, offers ongoing administration (Jacobus 2007a). The most seven affordable townhouses with either one or two bedrooms. common sources were local government general funds Credit: Sandy Council and federal housing block grant funds. However, many communities use a portion of inclusionary housing fee revenue to pay for program administration. A number of communities have developed fee structures, which Measuring Impact grow over time as administrative demands grow. A few Too often, a lack of external compliance requirements charge tenants or homebuyers application fees, and a results in literally no system for tracking outcomes growing number charge significant fees when inclu- of inclusionary housing programs. Schwartz and her sionary homeowners resell or refinance their homes. In colleagues of the RAND Corporation evaluated wheth- cases where the inclusionary program staff manages er inclusionary programs were achieving significant significant aspects of the resale, fees as high as 3 economic inclusion. She reported that, “No jurisdic- percent of the resale price may be appropriate. tion had all the information we requested, and . . . no jurisdiction regularly tracked demographic information Community land trusts typically charge homeowners a and sales prices or rents across successive occupants monthly ground lease fee to help defray administration of units” (Schwartz et al. 2012). costs, and a small number of cities including Chicago have included similar administration fees in deed cove- While it is not uncommon for academic researchers nants. Salinas, California, charges owners of inclusion- to conclude that more data is necessary to answer ary rental units an annual monitoring fee as well. important questions, the question that Schwartz was JACOBUS INCLUSIONARY HOUSING 51 HomeKeeper Tracking System Recognizing the need for better outcome tracking, Cornerstone Partnership brought together practitioners from multiple communities to develop a data system called HomeKeeper, which several inclusionary programs are using to monitor program outcomes. The City of Cambridge, Massachusetts, recently adopted HomeKeeper, and housing manager Anna Dolmatch reported that, “It has eliminated multiple spreadsheets, and we no longer have to search through paper files for information” (Eng 2014, p. 1). HomeKeeper captures demographic and income data from households at the time they are applying, enables management of waitlists and lotteries, and automates screening for eligibility. Once units are occupied, HomeKeeper helps staff monitor ongoing activities. For homeownership units, HomeKeeper tracks all the financial data related to the sale and financing of the home, helps staff manage resales, and ensures ongoing affordability. As a byproduct of automating these administrative systems, HomeKeeper captures the key data necessary to understand a program’s impact. of a program’s buyers to a pool of income-eligible households in the local area. This particular program is reaching African American and Asian families but underserving Hispanic households. Without this benchmarking data, these trends would be hard to track. Figure 10 Sample Metrics from a HomeKeeper Social Impact Report HomeKeeper users receive an annual Social Impact Report that summarizes program performance, including an overview of the type and location of units produced and the demographic and income characteristics of residents. The report also shows trends over time, such as how resident income compares with program income limits, the ongoing affordability of units, the difference between below-market-rate prices and market prices, the amount of equity earned by home buyers, and their annualized rate of return. Because more than 60 programs participate in the HomeKeeper project, these reports not only present each program’s outcomes, but they benchmark those outcomes against the performance of a national peer group (Cornerstone Partnership 2014b). Source: Cornerstone Partnership Figure 10 presents an example of the kind of information available from a HomeKeeper report. The chart compares the racial demographics 52 POLICY FOCUS REPORT LINCOLN INSTITUTE OF LAND POLICY researching was the very issue that most likely moti- The Sand River Cohousing development in Santa Fe, New Mexico, vated the creation of many of these programs. In fact, provides homes at below-market rates for senior citizens. Credit: the data she needed was exactly the same kind of data Angela Werneke that the staff routinely provide for federally funded housing projects. units produced and households served, the amount Some communities have begun to require annual of in-lieu fees collected and how those fees are reporting on program activities. Sacramento County, used, and recommendations for policy revisions. This California, for example, includes inclusionary reporting report is presented for public comment. Ultimately, as part of a broader biennial report. It must include the all inclusionary housing programs—both individually number of units produced, the amount of land dedi- and collectively—would benefit from significantly cated and purchased, the amount of funds collected, improving and standardizing data collection and and the levels of affordability among the units created. performance metrics. These annual reports are not as common as they should be, but those that exist do not seem to Conclusion address policy makers’ need for analysis of program performance. One exception is Monterey County, Inclusionary housing programs cannot be successful California, where the inclusionary zoning policy unless they are well-run and adequately staffed, and requires both an annual report and a more in-depth they must secure sufficient funding for ongoing ad- five-year report. The annual report is a brief summary ministrative costs. Communities also need to be able of the program’s accomplishments over the previous to track program data in order to evaluate outcomes years. The five-year report includes the number of and make needed changes over time. JACOBUS INCLUSIONARY HOUSING 53 CHAPTER 8 Conclusions and Recommendations The evidence summarized in this report strongly supports The Pacifica Cohousing Community maintains seven energy-efficient, the idea that local inclusionary housing policies can fairly permanently affordable units on its and effectively tie production of affordable housing to the eight-acre property in Carrboro, NC. construction of new market-rate real estate development. Credit: Community Home Trust Inclusionary housing offers a way to expand and preserve the supply of housing that is affordable to lower-income people. The responsibility for affordable housing is increasingly being devolved to states and localities as federal resources become scarce, and inclusionary housing programs offer an effective way for private-public partnerships to address this ongoing need. 54 POLICY FOCUS REPORT LINCOLN INSTITUTE OF LAND POLICY Growing communities can implement inclusionary policies to generate significant amounts of affordable housing without negatively affecting market-rate development. Ultimately, inclusionary programs can What Can Local Governments Do to Maximize the Impact of Inclusionary Housing? impose a meaningful cost on developers, but when they are coupled with incentives, the net impact on Research supports the premise that inclusionary development is typically modest, neutral, or even housing programs must be designed with care. In order occasionally positive. The affordable housing require- to maximize the impact of inclusionary programs, ments that can be supported without overburdening sponsoring local agencies should: development, however, differ from one community to another. Hence, effective policy design and program implementation are crucial for successful results. BUILD PUBLIC SUPPORT 1. Build consensus around the need for greater Most importantly, inclusionary housing offers one of investment in affordable housing and the de- the only effective strategies for overcoming economic sirability of a housing strategy that emphasizes segregation and building sustainable mixed-income mixed-income communities. communities. The evidence suggests that economic integration is an important way to combat the negative 2. Engage community stakeholders, including real effects of generational poverty. It also suggests that estate developers, in the process of designing an residents across all income levels benefit from: (1) inclusionary program. reducing sprawl (and the associated costs for taxpayers); (2) living in more sustainable cities; and (3) 3. experiencing cultural, racial, and economic diversity. While building-by-building integration is not always necessary, traditional publicly subsidized affordable housing programs have struggled and largely failed to Share program results with the public on a regular basis to build ongoing support. USE DATA TO INFORM PROGRAM DESIGN 4. Conduct an economic feasibility study prior to achieve neighborhood-level economic integration. Ul- implementation to ensure that proposed perfor- timately, tying provisions of affordable housing directly mance requirements or fees can be reasonably to market-rate development removes the biggest absorbed by development profits and land values. obstacle to creating inclusive communities: access to desirable land for development. 5. For programs that rely on linkage or impact fees, conduct a nexus study prior to implementation to ensure that required fees are roughly proportional to the impact of new development on the need for affordable housing. 6. Track program activity to enable policy makers to understand the program’s impact and make incremental improvements. JACOBUS INCLUSIONARY HOUSING 55 ESTABLISH FAIR, REASONABLE EXPECTATIONS FOR DEVELOPERS 7. Provide flexibility to developers to improve the What Can States Do to Support Local Inclusionary Housing Policies? rate of production. State legislative leadership has been essential to the 8. Ensure that alternatives to on-site production are growth of inclusionary housing. New Jersey effec- economically comparable. tively mandates local inclusionary housing policies, and Massachusetts and California have developed 9. Require developers to provide increased public statewide policy frameworks that grant real powers benefits when they build off-site units. to overcome local exclusionary zoning policies and encourage local cities and towns to adopt inclusionary 10. Regularly adjust incentives and requirements to housing ordinances. ensure that the number and types of units produced align more closely with local housing needs. States that want to encourage but not require local inclusionary housing policies could adopt legislation ENSURE PROGRAM QUALITY that makes the legality of local inclusionary housing 11. Pay close attention to the geographic location of statewide planning frameworks that: (1) explicitly units to ensure economic integration. explicit. Just as important, states can establish clear allow local governments to implement inclusionary housing policies, just as they have the authority to 12. Develop design standards to ensure that the affordable units are of appropriate size and quality. regulate other land uses; (2) prohibit local exclusionary housing practices; and (3) require local communities to proactively plan for and build affordable housing. 13. Plan and budget for stewardship and monitoring to protect long-term affordability. Affordable housing puts minds and hearts at ease. Credit: John Baker Photography 56 POLICY FOCUS REPORT LINCOLN INSTITUTE OF LAND POLICY Policies like these create an expectation that each The federal government could take the following community will manage its growth in a way that en- steps to encourage and support local inclusionary sures that some portion of new housing is affordable housing, including: to lower-income residents without specifically mandating the strategy each community will use. 1. Remove barriers for accessing FHA-insured mortgages and the secondary mortgage market for buyers of inclusionary homes. In most cities, the need for affordable 2. Provide incentives or preferences for the allocation of federal transportation funding to commu- housing has never been more urgent. For nities that develop affordable housing in concert many jurisdictions across the country, now with new transit infrastructure. is the time to consider adopting robust inclusionary housing policies that build 3. Educate state and local housing agencies on inclusionary housing as an effective tool for their affordable housing stock and create inclu- comprehensive affordable housing strategies. sive communities. 4. Develop a platform for tracking and monitoring the location of affordable units created through What Can the Federal Government Do to Support Inclusionary Housing Policies? local policies (including but not limited to inclusionary policies) combined with public data on the locations of federally subsidized housing to enable comparison of the performance of various programs. Inclusionary housing is not and should not be a central part of the federal government’s affordable housing 5. Allow local jurisdictions to use HOME and CDBG strategy. Local inclusionary housing programs are not funds to support stewardship of affordable units a substitute for a robust federal role in the production with long-term affordability controls. and preservation of affordable housing. In order to make a dent in the national housing problem, federal In most cities, the need for affordable housing has investment in public housing, block grant programs never been more urgent. For many jurisdictions across like HOME Investment Partnerships Program and the country, now is the time to consider adopting Community Development Block Grants (CDBG), and robust inclusionary housing policies that build afford- the Low Income Housing Tax Credit program must able housing stock and create inclusive communities. continue and expand. Local inclusionary programs can offer a way to supplement and leverage the impact of that federal investment, particularly in areas that are experiencing growth. 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Bandy. 2007. “Inclusionary Housing in Small Towns and Rural Places: The California Experience.” ACE: Arquitectura, Ciudad Y Entorno, Any II, Núm. 5, Octubre 2007. Wilson, William Julius. 2012. The Truly Disadvantaged: The Inner City, the Underclass, and Public Policy. University of Chicago Press. 60 POLICY FOCUS REPORT LINCOLN INSTITUTE OF LAND POLICY Acknowledgments The idea for this report was conceived by Emily Thaden at the National Community Land Trust (CLT) Network, and it relies heavily on work she did with Robert Hickey and Lisa Sturtevant at the National Housing Conference’s Center for Housing Policy. This new document benefited immensely from review and feedback from Emily Thaden, Rachel Silver, Sasha Hauswald, Alan Mallach, and Nico Calavita. Ben Beach, legal director of the Partnership for Working Families, wrote chapter 6, Addressing Legal Concerns. Mike Rawson of the Public Interest Law Project reviewed that chapter and provided helpful comments. Mark Perlman of the National CLT Network provided key production support in preparing the final report. A number of people were interviewed or provided background material that helped in the creation of this report. Michael Lane and Danielle Mazzella of the Non-Profit Housing Association of Northern California offered key insights and some follow-up research. Jamie Ross of the Florida Housing Coalition and 1000 Friends of Florida shared detailed lessons from her successful long-term effort to support adoption of inclusionary housing throughout Florida. Norman Cole of the City of Stamford, Connecticut, and Councilmember Sally Greene from Chapel Hill, North Carolina, shared lessons from the policy adoption process in their respective communities. Councilmember Robin Kniech of Denver, Colorado, shared her experience communicating with the public and media, and Evelyn Stivers shared lessons from regional campaigns to pass inclusionary ordinances in Northern California. I have collaborated with many researchers to conduct interviews or draft profiles of inclusionary housing programs for a number of closely related projects over the years, and their work helped provide essential context for this report. I thank the following people for these contributions: Maureen Hickey, Raphael Kasen, Ryan Sherriff, Maya Brennan, Jeffrey Lubell, Robert Hickey, Ken Rich, Lisa Feldstein, and Eric Brewer-Garcia. Thanks to Armando Carbonell and Maureen Clarke of the Lincoln Institute of Land Policy for their thoughtful comments and Sarah Rainwater for her fabulous design. Last, but not least, I would like to acknowledge all the inclusionary housing practitioners who contributed to research on this topic and who work hard each day to improve their communities. JACOBUS INCLUSIONARY HOUSING 61 ABOUT THE AUTHOR Rick Jacobus, a national expert in inclusionary housing and affordable homeownership, is the principal of Street Level Urban Impact Advisors (StreetLevelAdvisors.com). He was the founder of Cornerstone Partnership, and he currently serves as a strategic advisor to Cornerstone. He was previously a partner in Burlington Associates in Community Development and a visiting fellow at the Lincoln Institute of Land Policy. He has also served as a lecturer in the Department of City and Regional Planning at University of California at Berkeley and as a senior program officer for the Local Initiatives Support Corporation. His publications include A Path to Homeownership (2010), published by the Center for American Progress; Affordable By Choice, Trends in California Inclusionary Housing Programs (2007), published by the Non-profit Housing Association of Northern California; Retail Trade as a Route to Neighborhood Revitalization (2009), published by the Brookings Institution; and The City-CLT Partnership (2008), published by the Lincoln Institute of Land Policy. He has a bachelor’s degree from Oberlin College and a Master of City Planning degree from the University of California at Berkeley. ABOUT THE LINCOLN INSTITUTE OF LAND POLICY www.lincolninst.edu The Lincoln Institute of Land Policy is the leading resource for key issues concerning the use, regulation, and taxation of land. Providing highquality education and research, the Institute strives to improve public dialogue and decisions about land policy. As a private operating foundation whose origins date to 1946, the Institute seeks to inform decision making through education, research, policy evaluation, demonstration projects, and the dissemination of information, policy analysis, and data through our publications, website, and other media. By bringing together scholars, practitioners, public officials, policy makers, journalists, and involved citizens, the Lincoln Institute integrates theory and practice, and provides a nonpartisan forum for multidisciplinary perspectives on public policy concerning land, both in the United States and internationally. 62 POLICY FOCUS REPORT LINCOLN INSTITUTE OF LAND POLICY ABOUT CORNERSTONE PARTNERSHIP www.affordable ownership.org Cornerstone Partnership (Cornerstone) promotes strong, inclusive communities where all people can afford a decent place to live and thrive. Cornerstone is a national peer network for homeownership and inclusionary housing programs that preserve long-term affordability and community stability. Cornerstone provides expertise on policy and practice, offers technical assistance, tools, and resources to help its members build capacity and strengthen impact, and builds connections that help programs learn from each other and share what works. Cornerstone’s work supports practitioners, advocates, elected officials, consultants, and other housing professionals dedicated to helping individuals and families access equity and opportunity. ABOUT THE NATIONAL COMMUNITY LAND TRUST NETWORK www.cltnetwork.org The Network is a national nonprofit membership organization of community land trusts (CLT) and other organizations that promote strategic community development and permanently affordable housing to benefit lower income families throughout the United States. The Network supports our members by: 1. Raising public awareness of CLTs and permanently affordable housing, 2. Providing training, conferences, technical assistance, and capacity building resources for nonprofits and government organizations, 3. Researching best practices, innovations, and outcomes of membership organizations, 4. Promoting public policies and partnerships that enable growth and expansion, and 5. Developing the industry to advance its impact on families and communities. JACOBUS INCLUSIONARY HOUSING 63 64 I POLICY FOCUS REPORT I LINCOLN INSTITUTE OF LAND POLICY