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.

Form Based Code training at Pace rescheduled to November

FBC 301
Formulating, Adopting and Administering a Code
 
FBC 301 focuses on formulating, adopting, and administering a form-based code. The course will offer an in-depth look at the relationship between the comprehensive plan and a form-based code, the mechanics of code adoption, the advantages and disadvantages of mandatory, parallel and floating-zone codes, and ways to avoid common pitfalls in the drafting and administration of form-based codes.
 
Instructors will explain how to structure the process, including what must happen before, during, and after the code is drafted, what to keep and what to discard from an existing conventional code, how to relate the form-based code to the existing regulatory framework in a specific municipality, how to insulate a FBC against potential legal challenges, and issues of post-adoption implementation and project review. The course will examine specific examples and lessons learned from experience working with form-based codes and will include a hands-on exercise in code implementation.
 
NOTE: The one-day intro class ABCs of Form-Based Codes (or FBC 101e on-line) is prerequisite for taking FBC 301.
 
FBC 301 is part of FBCI’s 3-course series. It combines with FBC 101 (ABCs of Form-Based Codes) and FBC 201 (Urban Design), to complete a thorough instruction in the discipline of form-based coding. FBCI awards a certificate to all those completing the 3-course series.
WhenWednesday, November 4 and Thursday, November 5, 2015 — 8:30am -5:00pm
Where: NYS Judicial Institute at Pace Law School, White Plains, NY
To register for the course, go to www.formbasedcodes.org.courses/fbc301.

Touro Law Center’s “Bagels with the Boards” CLE series kicks off with: Avoiding and Defending Against RLUIPA Claims

Join local officials, planners, attorneys, legal scholars and law students on Friday, Feb. 27, 8:30 – 10 am, for RLUIPA Defense: Avoiding and Defending Against RLUIPA Claims, presented by Ted Carey, the lead trial lawyer in a complex RLUIPA case in Old Westbury, Evan J. Seeman and Karla Chaffee, RLUIPA attorneys at Robinson + Cole and regular contributors to the RLUIPA Defense blog. 1 Professional Practice credit. Planning and zoning board credits TBD.

“Absolutely essential to avoiding and defending against RLUIPA claims is proper training of local officials before they begin to review a religious use application.”  — Evan J. Seeman, RLUIPA Defense Tactics: How to Avoid & Defend Against RLUIPA Claims, 37 Zoning & Planning L. Rpt. 1 (Dec. 2014).

Space is limited. Register now by emailing events@tourolaw.edu.

All Bagels with the Boards events begin with a half hour continental breakfast (including bagels, of course), followed by a one-hour CLE. The cost for each program is $15 per person, including materials, and continental breakfast.

Special thanks to Bagels with the Boards co-sponsors: Farrell Fritz PC, the Municipal Law Section of the NY State Bar Association, the New York Conference of Mayors (NYCOM), and the Association of Towns of the State of New York.


Email events@tourolaw.edu to pre-register for future Bagels with the Boards, including:

Friday, Mar. 27, , 8:30 – 10 am

Planning and Zoning for Accessible Communities, presented by Robin Malloy, the E. I. White Chair and Distinguished Professor of Law, and Kauffman Professor of Entrepreneurship and Innovation at Syracuse University. Professor Malloy’s book Land Use Law and Disability: Planning and Zoning for Accessible Communities was published in October 2014 by Cambridge University Press.

Learn more about this CLE, other CLEs in the Bagels with the Boards series, and Touro’s Land Use & Sustainable Development Law Institute first annual conference the “Long Island Coastal Resiliency Summit,” by visiting http://www.tourolaw.edu/LandUseInstitute.

Don’t miss future events. Join the Institute’s mailing list by emailing landuse@tourolaw.edu.

NY Appellate Courts Finds a Reasonable Probability that NYC Wetlands Designation Is a Regulatory Taking

Don’t miss the Law of the Land post on New Creek Bluebelt, Phase 4 v. City of New York, No. D42904 (N.Y.A.D. 2 Dept. 11/19/2014): NY Appellate Courts Finds a Reasonable Probability That Wetlands Designation Is a Regulatory Taking Under Penn Central. In New Creek Bluebelt, although the claimants proved only an 82% diminution of value (“a diminution which, standing alone, is within the range generally found to be insufficient to constitute a regulatory taking”), 

“the parties agree[d] that, because of the wetlands regulations, it is highly improbable that the New York State Department of Environmental Conservation would issue a permit to develop the property in accordance with the applicable R3-1 zoning, which allows for attached and semi-attached one- and two- family dwellings, and that, accordingly, the highest and best use of the property is to leave it undeveloped and vacant. Thus, although the purpose of the wetlands regulations benefits the public good by providing flood prevention and mitigation, the wetlands regulations effectively prevent any economically beneficial use of the property (see id.).”

Thus, the court agreed with the trial court that the 82% property value diminution together with the effective prohibition on development of any part of the property was sufficient to establish a reasonable probability that the imposition of the wetlands regulations constituted a regulatory taking of the property.

For more on this opinion, check out the Inverse Condemnation Blog post by Robert H. Thomas, Esq., and the Bulldozers at Your Doorstep blog, by counsel for the prevailing property owners.

10th Circuit Disallows Conservation Easement Deduction Where Mortgage Not Subordinated at Time of Donation

Earlier this week, the Tenth Circuit issued its opinion in Mitchell v. CIR, 2015 WL 64927 (10th Cir. 2015), affirming the Tax Court’s denial of the taxpayers’ (Charles and Ramona Mitchell) charitable contribution deduction for their donation of a conservation easement on real property that was, at the time of the donation, subject to an unsubordinated mortgage (held by Mr. Sheek). The court explained:

In sum, we conclude the regulations do not permit a charitable contribution deduction unless any existing mortgage on the donated property has been subordinated, irrespective of the likelihood of foreclosure. Therefore, the Tax Court correctly held the Commissioner was entitled to disallow the Mitchells’ charitable contribution deduction because Mr. Sheek’s mortgage encumbering the Lone Canyon Ranch was not timely subordinated.

Check out Jessica Owley’s post on the Land Use Law Prof blog for further discussion of the opinion.

Touro Law Professors’ Land Use Law Scholarship Features in Top 50 List

Land Use Law Prof blog’s The Top 50 land use law articles of 2014 features 5 articles by Touro Law professors, including the #1 article:

It’s a ‘Criming Shame’: Moving from Land Use Ethics to Criminalization of Behavior Leading to Permits and Other Zoning Related Acts 
46 Urb. Law. 249 (2014), Touro Law Center Legal Studies Research Paper Series
Patricia Salkin and Bailey Ince 

The list is a compilation of the top 50 downloaded land use law articles on SSRN based on a simple search using the term “land use.” Other Touro Law prof articles featured on the list are:

Still an Issue: The Taking Issue at 40 
30 Touro L. Rev. 245 (2014), Touro Law Center Legal Studies Research Paper
Patricia Salkin 

Land Use Regulation: It Just Gets Worse 
2 U. Balt. J. Land & Dev. 1 (2012), Touro Law Center Legal Studies Research Paper Series
Michael Lewyn 

Zoning and Land Use Planning: Plans are Not Enough 
42 Real Estate L.J. 240 (2013), Touro Law Center Legal Studies Research Paper Series No. 14-37
Michael Lewyn 

Climate Change Adaptation and Mitigation: A Local Solution to a Global Problem 
Municipal Lawyer, Winter 2014, Vol. 28, No. 1, Touro Law Center Legal Studies Research Paper
Sarah Adams-Schoen 

Check out the other 45 articles here, and more Land Use Law Prof blog posts by Stephen R. Miller here.