How Good Zoning Can Help Meet the Affordable Housing Needs of Seniors

By Touro Law Dean Patricia Salkin, reprinted from the New York Planning Federation September E-News 2015 with permission

Introduction

Local governments hold the key to most immediately addressing affordable senior housing through the implementation of land use planning and regulatory controls that ensure that seniors will be able to access affordable housing at all income levels.

State governments already provide broad statutory authorization for local governments to engage in planning and land use controls in furtherance of their police powers to provide for the public health, safety and welfare. From the use of comprehensive plans to zoning and building codes that permit alternative housing options such as accessory apartments, elder cottages and shared living arrangements, municipalities can plan for senior housing and provide development incentives for construction of low-income senior housing units.

Comprehensive plans

A local comprehensive plan is the first place where the need for affordable housing should be assessed and discussed. Approximately 25 states require that local comprehensive plans contain a general housing element providing an appropriate opportunity to discuss affordability and senior housing as one aspect of satisfying this mandate. Since the comprehensive plan is used as a basis to support the adoption and implementation of local land use regulations, where such goals are clearly articulated in the plan, and where proposals for affordable senior housing developments are later opposed by neighbors, the fact that the local government included a senior housing goal in its comprehensive plan can serve to support the legality of its actions.

While state enabling statutes addressing the required content of the comprehensive plan tend to be broadly worded and do not specifically reference affordable senior housing, statutes often provide the guidance necessary to suggest to local governments that this is an appropriate topic for their consideration. For example, New York Town Law §272-a provides that a town comprehensive plan may include a range of topics at the level of detail required to meet the specific needs of the town, while §272-a(3)(h) of the same law specifies “Existing housing resources and future housing needs, including affordable housing.”

Some comprehensive plans emphasize having a diverse stock of senior housing with units in mixed use districts where seniors can walk to stores and services. The 2005 Town of Bethlehem, NY plan states: “As the Town’s population ages, it is critical to consider housing options for seniors. The In-Town Residential Area (as well as the hamlets) is appropriate for such housing, due to its location close to services.” And the Town of Colonie, NY plan, also adopted in 2005, says that the Town should be:

“Providing housing in areas where services can be accessed by transit or by walking provides seniors with the opportunity to continue independent living.”

Age-Restricted Zoning Districts

Zoning is a legal tool that organizes all of the land of a municipality into various zoning districts, providing for uses that are allowed and/or prohibited in each district. While most zoning districts address housing by delineating single-family residential districts, multi-family residential districts and/or mixed-use districts, another approach that addresses the challenge of providing adequate senior housing is to designate age-restricted housing districts. This type of district is often very attractive to seniors because of its social amenities. However, municipalities should be sure that housing here is affordable, and also that excessive amounts of land do not become off-limits to younger families seeking to settle in a community.

Examples of age-restricted zoning include the City of Snellville, GA which, in 2007, implemented an R- HOP (Residential-Housing for Older Persons) district whose purpose is “to serve the housing needs of adults who are 55 years of age or older.” The ordinance recommends that this district “be located in areas that facilitate pedestrian access to nearby commercial goods and services, and/or amenities/cultural facilities.” Dwellings in R-HOP districts must have at least one step-free entrance, wide doorways, step-free access to kitchen, dining and other interior rooms, and bathrooms must be constructed to allow for the installation of grab bars.” (See Zoning Ordinance, City of Snellville, GA Code §9 (2007)).

The zoning ordinance of the Township of Moorestown, NJ has both Senior Citizen Residence Districts and Age-Qualified Residence Districts. Homes in the Senior Citizen Residence District must be affordable to low and moderate income households, while the Age-Qualified District “is intended to provide for age-qualified development consisting of townhouses for active adults with ancillary social, cultural and recreational amenities in a comprehensively planned development with significant open space.” (See Code of the Township of Moorestown Chapter 180).

Accessory Apartments

These complete living spaces that are built into single-family homes may be attractive options for seniors living on fixed budgets, both for those who own a home but cannot afford to maintain it, and for those who could rent an apartment in such a home. Additionally, an accessory apartment may allow seniors to live with friends or family while still maintaining independence.

While municipalities may allow accessory apartments through local zoning ordinances, they often present planning concerns related to design, density, neighborhood character, and issues of health and safety. Local governments can address these concerns by subjecting accessory apartments to an additional layer of review through special use permit requirements. For example, a 2008 plan for the City of Northampton, MA allows the addition of an accessory “in-law” apartment to a single-family home under the following conditions: the apartment contains a separate kitchen and bath; the owners occupy either the primary or accessory unit; additional entrances are not built on the front of the house; the apartment is less than 900 sq. ft.; and no more than 3 people live in it. The Town of Huntington, NY also requires a minimum lot size of 7,500 sq. ft. and a minimum frontage of 75 ft.

Elder Cottages

Often also referred to as “granny flats,” elder cottages are self-contained houses designed so that seniors can live affordably near family members, while still maintaining both independence and privacy. They are similar to accessory apartments, but are generally detached prefabricated units which are often also removable. For seniors who own their own homes, installing an elder cottage for a friend or relative can bring in rent payments to help pay the homeowner’s mortgage or other expenses. However, elder cottages are not inexpensive, ranging from $25,000 to $100,000 or more.

Elder cottages present many of the same planning concerns as accessory apartments but, because they are detached structures, many local governments impose additional restrictions on their use. These may include minimum age requirements, relationship to the resident in the principal dwelling, placement of the cottage on the property, minimum lot size, etc. In New London, PA, for example, ordinances for elder cottages include having a minimum 2-acre lot, and also specify that the permits terminate on the death of the cottage’s occupant or the conveyance of the property to new owners. Once the elder cottage permit has been terminated, the property owners have 120 days to either remove the structure or convert it to another legal use.

Shared Living Residences

In this instance, several unrelated persons live together in the same dwelling unit. The group shares living expenses and common facilities such as a kitchen and living room, but each resident has his/her own bedroom. These residences may be owned and managed by a community organization, or a senior who owns a home may choose to rent rooms to other seniors. Rents in these residences are generally lower than the cost of renting a full apartment.

Most zoning ordinances define the term “family” as related persons, or perhaps a small number of unrelated individuals. This definition could have the effect of prohibiting shared living spaces. However, the FHAA prohibits the exclusion of group homes from a municipality, and may even require local governments to allow shared living arrangements for seniors. Some courts have also found restrictive definitions of the term “family” to be impermissible on substantive due process and equal protection grounds. For example, in Baer v. Brookhaven, 73 N.Y.2d 942 (1989), New York’s highest court held that an ordinance limiting “families” to related persons or up to 4 unrelated individuals living as a “single housekeeping unit” was unconstitutional as applied to a group of 5 elderly women living in a single-family home.

Incentive Zoning for Senior Housing

This is another way that local governments can encourage the development of affordable senior housing. New York is among the states giving local governments specific authority to provide incentives, usually in the form of increases in the maximum density or expedited permitting procedures, for developers who agree to provide certain amenities specified in local ordinances.

Conclusion

There is no doubt that an affordable housing crisis for seniors looms on the horizon. Absent more significant and immediate commitments by Congress and state legislatures to provide the necessary funding to enhance the current supply of public assisted senior housing, and absent substantial increases in financial support for low-income housing trust funds that emphasize senior housing programs, both the burden and opportunity for affordable housing options rest with local governments and their land use control authority. The good news is that our local governments possess a rich reservoir of zoning and other land use regulatory tools that can be employed to provide an appropriate range of housing alternatives suited to meet the community’s demographic needs.

Patricia E. Salkin is Dean and Professor of Law at the Touro College Jacob D. Fuchsberg Law Center on Long Island. She is author of the popular blog, Law of the Land, as well as both New York Zoning Law and Practice, 4th ed. and American Law of Zoning, 5th ed. Dean Salkin has written numerous articles on aging issues and was the keynote speaker at the 2015 NYPF Annual Planning & Zoning Conference. Information in this article was excerpted from her longer piece titled “A Quiet Crisis in America: Meeting the Affordable Housing Needs of the Invisible Low-Income Healthy Seniors,” published in September 2010 by the Government Law Center of Albany Law School.

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