Despite the nationwide slowdown in the housing market and the 2007 property tax package adopted by the Florida Legislature, many communities in Florida are still struggling to foster the development of affordable housing. In some areas, housing prices have become so high that many local governments have changed the vernacular from striving to provide "affordable housing" to providing "work-force housing." (1) The difference in terms reflects a change in priorities from assisting the poor to ensuring that low- to middle-income workers (e.g., police officers, teachers, paramedics) are able to live in the same communities that they serve.
There are a host of reasons that could be cited for the current disparity between average housing prices and average household incomes. Culprits for the so-called "affordability gap" include high land costs, exclusionary design and zoning regulations, high development and construction costs, lack of buildable land, tourism, and government impact fees. While a complete discussion of these factors and their effects on the housing market is beyond the scope of this article, the authors concede that a range of initiatives to encourage both affordable and workforce housing is necessary. Nevertheless, despite the panoply of reasons for the affordable housing dilemma, many local governments have limited their responses to the imposition of mandatory affordable housing requirements as a condition of granting development approvals. Developers are often forced either to pay into an affordable housing fund or set aside a certain number of newly constructed dwelling units to be utilized as affordable housing. These mandatory measures--generally referred to as "inclusionary zoning"--have significant legal constraints not often considered at the time they are adopted. In this article, the authors will provide an analysis of the current state of Florida and federal law regarding impact fees and development exactions as they relate to mandatory inclusionary zoning initiatives.
Planning and Zoning as a Way to Encourage Affordable Housing
Government interest in affordable housing is not a new phenomenon. Beginning with the United States Housing Act of 1937 and continuing today with programs such as the Low-Income Housing Tax Credit, governments at all levels have sponsored a variety of programs designed to either increase the supply of affordable housing units or assist individuals in locating and meeting the demand of paying for suitable housing they could not otherwise afford. Over the same duration, however, local governments have established and enforced zoning policies and land use regulations to effectively prevent the construction of affordable housing. Referred to as "exclusionary zoning," these development regulations include mechanisms that often limit residential development to single-family homes at low overall residential densities with little to no opportunity for the development of a variety of housing types that are affordable to low- to middle-income residents. These local regulatory regimes have "work[ed] indirectly by shaping local housing markets, encouraging or prohibiting the construction of certain types of housing, and thereby conditioning the tenure (rent versus own) and price of housing." (2)
In 1975, the New Jersey Supreme Court set out to reverse the exclusionary aspects of local land use controls by requiring local governments in that state to provide meaningful opportunities for affordable housing through their zoning regulations. In Southern Burlington County NAACP v. Township of Mt. Laurel, 336 A.2d 713 (N.J. 1975) (Mt. Laurel I), the New Jersey Supreme Court held that:
[T]he presumptive obligation arises for each municipality affirmatively to plan and provide, by its land use regulations, the reasonable opportunity for an appropriate variety and choice of housing, including, of course, low and moderate cost housing, to meet the needs, desires, and resources of all categories of people who may desire to live within its boundaries. (3) In the wake of the Mt. Laurel decision, the New Jersey Legislature enacted the state's Fair Housing Act, which codified the requirement that affordable housing must be considered and ensured in the context of local land development regulations.
By comparison, the Florida Legislature has enacted the Growth Management Act, which is codified in F.S. Ch. 163, Part II. The cornerstone of the Growth Management Act is the requirement that Florida counties and municipalities must adopt comprehensive plans that operate as a blueprint for future growth in the community. These comprehensive plans are required to take into account housing supply and affordability. Moreover, the Growth Management Act further requires that local government land development regulations must be consistent with and implement the adopted comprehensive plan.
Despite its laudable intentions, the authors submit that comprehensive planning has resulted in more aspirational goal-setting as opposed to realistic planning. Specifically, the goals, policies, and objectives of local plans have often gone unrealized or been less than fully implemented. The classic example of this paradigm is the community that expresses a desire for affordable housing; establishes maximum residential densities in the comprehensive plan consistent with achieving the goal; but then promulgates development regulations that cap permissible development at a density far less than the density envisioned by the comprehensive plan.
The authors also recognize that the restrictive nature of land development regulations is not the sole cause of the affordable housing crisis. Opponents to intensive residential development could make a persuasive argument that unbridled residential development could result in land speculation, over-inflated pricing, and give rise to a luxury housing market intended to capitalize on residents who live in Florida on a seasonal basis. There are simply no guarantees that merely opening the floodgates to more residential development would necessarily result in more affordable housing for the community. Look no further than Florida's current housing market as proof: a market with an overabundance of housing units, but one in which the affordability problem persists nonetheless.
* Heightened Sensitivity to the Regulation of Identity of Users Rather Than the Physical Attributes of the
Development
The failure of effective land use planning has compelled some local governments to incorporate inclusionary zoning measures in their land development regulations. (4) Other local governments have opted to wait for the dust to settle on at least one ongoing challenge against the City of Tallahassee's recently adopted inclusionary zoning ordinance. Whether a local government can require developers to build a certain number of units, or pay a fee for affordable housing through inclusionary zoning, depends on whether the state delegated such authority in an enabling act or in other legislative measures.
Historically, courts have examined whether local government authority to review development proposals is confined to a review of the geometric or physical elements of a development proposal (e.g., the type of land use, lot size, setbacks, building height, floor area ratio) and not the economic characteristics of the prospective owners or users of the development. For example, in Fox v. The Town of Bay Harbor Islands, 450 So. 2d 559 (Fla. 3d DCA 1984), the Third District Court of Appeal held that an ordinance requiring the bottom floor of an apartment building to be utilized solely by a building superintendent was arbitrary and invalid. Writing for the court, Judge Pierson explained the court's heightened sensitivity to land development regulations geared toward the identity of the user rather than the physical characteristics or actual use of the structure:
The generally accepted justifications for a reasonable setback requirement are that it secures adequate air and light, promotes safety from fire and other dangers, prevents overcrowding of land ... and enhances aesthetic values.... Particularly pertinent here is the principle that zoning ordinances are much less suspect when they focus on the use than when they command inquiry into who are the users. Consistent with that principle, courts have struck down ordinances which limited the occupancy of a dwelling unit to a narrowly defined family on the ground, among others, that such ordinances have, at most, a tenuous relation to the city's legitimate goal of preventing overcrowding, defraying traffic problems, and avoiding an overload in the school system.... It is clear to us that in the ordinance under consideration the identity of the person who occupies the ground floor apartment has not the slightest bearing upon the health, safety, morals or welfare of the public at large.... (5) * State Policy on Authorization of Inclusionary Zoning
Legislative authorization for inclusionary zoning measures differs from state to state. (6) In Florida, the state legislature has authorized cities and counties to adopt inclusionary zoning measures in their land development codes. In 2001, the Florida Legislature enacted legislation stating that municipalities and counties "may adopt and maintain in effect any law, ordinance, rule, or other measure that is adopted for the purpose of increasing the supply of affordable housing using land use mechanisms such as inclusionary housing ordinances." (7)
Under the foregoing legislative framework, local governments in Florida may examine a number of affordable housing strategies. (8) As suggested by the legislature, a local government may attempt to establish an inclusionary zoning program. The local government must decide, however, whether the program should be made voluntary or mandatory.
Under a voluntary program, a local government would encourage affordable housing by offering various incentives to...
