Shattering the Myth of Municipal Impotence: The Authority of Local Government to Create Affordable Housing

In the absence of any guidance from the legislature, local officials, in confronting the problem of affordable housing, look to the courts to define the extent of their responsibility and power. While not providing specific direction, the New York Court of Appeals has clearly outlawed zoning designed to exclude affordable housing. The judiciary has voiced doubts, however, that municipal governments can, through zoning alone, require the development of affordable housing. The view that municipalities lack such power is erroneous. Zoning alone is competent to induce such development. Furthermore, local governments have considerable additional power to induce the creation of such housing. This Article will document this competence and authority of municipal governments to induce the development of affordable housing. Part II analyzes in detail the use of the traditional zoning powers of local governments to create affordable housing, and examines techniques such as conditional rezoning, floating zones, special permits and the application of a relatively new concept called “density zoning” or “incentive zoning.” Part II also considers whether municipalities may meet “local” needs by granting occupancy preferences under such zoning schemes. In addition, this Part examines restrictions on the transfer of title to affordable housing in order to perpetuate that affordability, as well as common law rules such as the rule against perpetuities and the rule against unreasonable restraints on alienation. Part III looks at the untapped wealth of statutory authority that enables local governments to further reduce the cost of housing. Statutes provide the authority to facilitate affordable housing by granting property tax abatements, acquiring land by eminent domain, selling public land at favorable prices, issuing bonds to provide inexpensive permanent loans for affordable housing, and building supportive infrastructure, such as sidewalks, streets and sewers. Part IV concludes that an understanding of the plenary nature of this local authority can change the perceptions of the state courts in designing remedies for exclusionary zoning and that the state legislature can act more effectively to guide, encourage and direct local governments in exercising the authority delegated to them.