Wanted: Affordable rental housing in Wisconsin

Wisconsin Law Review

Volumn 2007, Issue 1, 2007, Pages 201-238

  Pikus, Ann K ^a  

^a NONE

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EID: 34948900943     PISSN: 0043650X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Note

References (362)

1. Office of Cmty. Planning & Dev., U.S. Dep't of Hous. & Urban Dev., Affordable Housing, http://www.hud.gov/offices/cpd/affordablehousing/ index.cfm (last visited Apr. 16, 2007). This Comment uses this definition of housing affordability throughout.
2. Id.
3. Id.;
4. see also BARBARA J. LIPMAN, CTR. FOR HOUS. POLICY, SOMETHING'S GOTTA GIVE: WORKING FAMILIES AND THE COST OF HOUSING 10, 16-18 & figs.2 & 4 (2005), available athttp://www.nhc.org/pdf/pub_nc_sgg_04_05.pdf.
5. OFFICE OF MGMT. & BUDGET, BUDGET OF THE UNITED STATES GOVERNMENT, FISCAL YEAR 2006, at 167 (2005) [hereinafter HUD FY2006 BUDGET] (listing "presidential goals" for the budget of the Department of Housing and Urban Development).
6. See, e.g., Nat'l Ass'n of Realtors, Homeownership Talking Points, http://www.realtor.org/PublicAffairsWeb.nsf/Pages/TPHomeownership (last visited Apr. 16, 2007); U.S. Dep't of Hous. & Urban Dev., Blueprint for the American Dream, at 2, http://www.hud.gov/news/releasedocs/blueprint.pdf (last visited June 7, 2007).
7. Sean Zielenbach, A Critical Analysis of Low-Income Homeownership Strategies, 13 J. AFFORDABLE HOUSING & CMTY. DEV. L. 446, 448-49 (2004).
8. Id. at 451-52.
9. Id. at 452-55.
10. See William Apgar, Rethinking Rental Housing: Expanding the Ability of Rental Housing to Serve as a Pathway to Economic and Social Opportunity 31 (Joint Ctr. for Hous. Stud., Working Paper Series, Paper No. 11, 2004);
11. Zielenbach, supra note 6, at 446.
12. See Liz Pulliam Weston, The Hidden Costs of Homeownership, MSN MONEY, http://moneycentral.msn.com/content/Banking/Homebuyingguide/ P37628.asp (last visited Apr. 16, 2007).
13. See Sarah Max, Rent or Buy? The Answer May Surprise, CNNMONEY.COM, Dec. 16, 2004, http://money.cnn.com/2004/12/15/ real_estate/buying_selling/thursday_rentorbuy; Andrew Neiland, Why Renting a Home Makes Financial Sense, REALESTATEJ OURNAL.COM, Feb. 5, 2001, http://www.realestatejournal.com/buysell/ mortgages/20010205-nieland.html.
14. See Homeownership May Not Be Best Choice for AU Low-Income Families, Research Survey Shows, HOUSING & DEV. REP., Jan. 30, 2006, at 73-74 ("[O]wning a home may limit the ability of low-income families to move out of less desirable neighborhoods. . . . [R]esearch found that low-income minority homeowners in depressed neighborhoods tended to stay or move to a neighborhood of similar or worse quality." (citing Low Income Investment Fund survey findings)).
15. See Jim McWhinney, To Rent or Buy? There's More to It than Money-Part 2, INVESTOPEDIA, Jan. 13, 2005, http://www.investopedia. com/articles/05/011305.asp.
16. See Jens Ludwig et al., Housing Mobility Programs and Economic Self-Sufficiency: Evidence from a Randomized Experiment, 89 J. PUB. ECON. 131, 152 (2005);
17. Barbara Sard & John Springer, Affordable Housing: One of the Keys to Self-Sufficiency, 4 HOUSING FACTS & FINDINGS 1, 5-6 (2002).
18. See Ludwig et al., supra note 14, at 132.
19. See HUD FY2006 BUDGET, supra note 4, at 1-3 (announcing President George W. Bush's goals to "add 5.5 million new minority homeowners by 2010" and "to increase the supply of affordable homes by 7 million units over the next 10 years" and describing proposed initiatives like the American Dream Downpayment Act, the Zero-Downpayment Initiative, and the Single Family Affordable Housing Tax Credit).
20. U.S. CENSUS BUREAU, QT-H3: HOUSEHOLD POPULATION AND HOUSEHOLD TYPE BY TENURE (2000), http://factfinder.census.gov (select "Housing, Physical Characteristics" hyperlink; then select tab for 2000; then select "Wisconsin" from the drop-down menu; then follow the "Household Population and Housing Characteristics" hyperlink).
21. See WIS. DEP'T OF COMMERCE, 2005-2009 CONSOLIDATED PLAN, HOUSING AND COMMUNITY DEVELOPMENT NEEDS ANALYSIS 5 tbl. 4 (2005). Renters have a "housing problem" when they spend more than 30 percent of their income on housing; or when they live in a unit that is overcrowded, or without a complete kitchen or plumbing.
22. See id. at 23 n.vi.
23. See NAT'L LOW INCOME HOUS. COAL., HEAT UP FOR HOUSING TOOLKIT: STATE-LEVEL DATA FOR WISCONSIN, available at http://www.nlihc.org/doc/heatupWI.pdf (describing households that spend more than 50 percent of their income on rent as "severely burdened" by rent).
24. U.S. CENSUS BUREAU, 2000 CENSUS OF POPULATION AND HOUSING: SUMMARY FILE 4 app. B, at B-16 (2005), http://www.census.gov/prod/cen2000/doc/sf4.pdf.
25. Id.
26. Id.
27. Id. The U.S. Census Bureau defines "married-couple family" as "a family in which the householder and his or her spouse are enumerated as members of the same household."
28. Id.
29. U.S. CENSUS BUREAU, supra note 20.
30. Id.
31. See id.
32. Id.
33. See JOINT CTR. FOR HOUS. STUDIES, HARVARD UNIV., HOUSING AMERICA'S SENIORS 6 (2000) ("[R]enter households headed by a person 65 or older in 1995 - one-fifth of the senior population - had median net wealth of only $6,460, compared with $141,300 for those owning homes.").
34. Stephanie E. Roark, When the System Fails: What Notification System Does Due Process Require in the Context of State Aid to the Elderly, 12 ELDER L.J. 149, 164 (2004).
35. See 42 U.S.C. § 1437f(c)(1) (2000) (requiring HUD to publish FMRs at least annually);
36. see also U.S. DEP'T OF HOUS. & URBAN DEV., OFFICE OF POLICY DEV. & RESEARCH, FAIR MARKET RENTS FOR THE SECTION 8 HOUSING ASSISTANCE PAYMENTS PROGRAM 2 (1995), http://www.huduser.org/datasets/fmr/fmrover.doc (explaining how FMRs are calculated).
37. U.S. DEP'T OF HOUS. & URBAN DEV., supra note 30, at 2.
38. Congress enacted the HOME Investment Partnerships Program under Title II of the Cranston-Gonzalez National Affordable Housing Act, Pub. L. No. 101-625, 104 Stat. 4085 (1990) (codified at 42 U.S.C. §§ 12701-12839 (2000));
39. see BARRY G. JACOBS, HDR HANDBOOK OF HOUSING AND DEVELOPMENT LAW § 1:55 (2006).
40. See U.S. DEP'T OF HOUS. & URBAN DEV., supra note 30, at 2.
41. See Nat'l Low Income Hous. Coal., Out of Reach, 2006 Affordability Calculator, http://www.nlihc.org/oor/oor2006/ (select Wisconsin; then follow "Click to View Data" tab; then select "Wisconsin," "Non-Metro," and Dane and Milwaukee counties) (last visited Apr. 16, 2007) [hereinafter NLIHC Data].
42. See DEMOGRAPHIC SERVS. CTR., WIS. DEP'T ADMIN., NUMBER OF RENTER-OCCUPIED HOUSING UNITS BY HOUSEHOLD INCOME IN 1999 FOR WISCONSIN COUNTIES: APRIL 1, 2000 (2000), http://www.doa.state.wi.us/ docs_view2.asp?docid=909.
43. See id.
44. Fair Labor Standards Act, 29 U.S.C. § 206(a)(1) (2000).
45. See Minimum Wage Competitiveness Act of 2005, H.R. 3413, 109th Cong. § 2. On January 10, 2007, the House passed the Fair Minimum Wage Act to raise the minimum wage to $7.25 within two years and sixty days of the bill's enactment. H.R. 2, 110th Cong. § 2 (2007).
46. See Fair Minimum Wage Act of 2005, S. 1062, 109th Cong. § 2.
47. Fair Labor Standards Act, 29 U.S.C. § 206(a)(1).
48. WIS. ADMIN. CODE DWD § 272.03(1m)(a) (2006).
49. MINIMUM WAGE ADVISORY COUNCIL OF WIS., LABOR STANDARDS BUREAU, REPORT AND RECOMMENDATIONS OF THE MINIMUM WAGE ADVISORY COUNCIL 33 (2004), http://www.dwd.state.wi.us/er/ equal_rights_division/pdf_files/mwac_final_report.pdf.
50. See infra tb1.2.
51. See NLIHC Data, supra note 34;
52. see also OUT OF REACH, ONLINE GUIDE TO DATA USAGE AND SOURCES 1 (2006) http://www.nlihc.org/oor/oor2006/howwhere.pdf (presenting data regarding how many hours per week and what hourly wage are necessary to afford a two-bedroom apartment);
53. HUD USER, SCHEDULE B - FY 2007 FINAL FAIR MARKET RENTS FOR EXISTING HOUSING 52 (2006), http://www.huduser.org/datasets/fmr/fmr2007f/ FY2007F_ScheduleB_rev2.pdf.
54. See NLIHC Data, supra note 34 (defining an "Extremely Low Income Household" as a household earning no more than 30 percent of area median income). No geographic area in Wisconsin was "affordable" for extremely low-income renters.
55. See id.
56. Id.
57. See id. (reporting an FMR of $458 for "non-metro" areas of Wisconsin).
58. See id. (showing that Dane County's one-bedroom FMR of $656 was almost twice as much as what would be "affordable" for someone working full-time at minimum wage).
59. MINIMUM WAGE ADVISORY COUNCIL OF WIS., supra note 42, at 33.
60. See NLIHC Data, supra note 34 (reporting that $12.77 is the hourly wage required to "afford" the average two-bedroom apartment in Wisconsin).
61. KARIN WELLS, OFFICE OF ECON. ADVISORS, WIS. DEP'T OF WORKFORCE DEV., WISCONSIN PROJECTIONS 2004-2014: EMPLOYMENT IN INDUSTRIES AND OCCUPATIONS, at xiii fig.ES-2 (2006), http://dwd.wisconsin.gov/oea/longterm_projections.htm.
62. See id. at xiv & fig.ES-3.
63. See BUREAU OF LABOR STATISTICS, MAY 2005 STATE OCCUPATIONAL EMPLOYMENT AND WAGE ESTIMATES, WISCONSIN, FOOD PREPARATION AND SERVING RELATED OCCUPATIONS (2005), http://www.bls.gov/oes/current/oes_wi.htm#b35-0000 (reporting the that median hourly wage for waiters and waitresses is $6.58, and that 25 percent of food-preparation workers earn $7.04 or less per hour, 25 percent of cashiers earn $6.75 or less per hour, and 25 percent of retail salespersons earn $7.55 or less per hour).
64. Dan Nnamdi Mbulu, Affordable Housing: How Effective Are Existing Federal Laws in Addressing the Housing Needs of Lower Income Families?, 8 AM. U. J. GENDER SOC. POL'Y & L. 387, 390-92 (2000) (giving a history of congressional efforts to help provide housing).
65. See Paulette J. Williams, The Continuing Crisis in Affordable Housing: Systemic Issues Requiring Systemic Solutions, 31 FORDHAM URB. L.J. 413, 432-46 (2004).
66. U.S. Dep't of Hous. & Urban Dev., HUD's Public Housing Program, http://www.hud.gov/renting/phprog.cfm (last visited Apr. 16, 2007).
67. See 24 C.F.R. § 5.100 (2006) (defining "public-housing agency" as "any State, county, municipality, or other governmental entity or public body, or agency or instrumentality of these entities, that is authorized to engage or assist in the development or operation of low-income housing under the 1937 Act").
68. See Williams, supra note 55, at 432;
69. see also Andrea D. Haddad, Subsidized Housing and HUD Projects: Economic Confinement of Low-Income Families, 31 N.E. J. CRIM. & CIV. CONFINEMENT 243, 247 (2005) (discussing the ill effects of concentrated poverty caused by public housing);
70. Terry A.C. Gray, Note, DeConcentrating Poverty and Promoting Mixed-Income Communities in Public Housing: The Quality Housing and Work Responsibility Act of 1998, 11 STAN. L. & POL'Y REV. 173, 173 (1999) (noting the economic and social isolation caused by public-housing projects).
71. See Paul K. Casey & Amy M. McClain, Mixed-Finance Development of Public Housing, in THE LEGAL GUIDE TO AFFORDABLE HOUSING DEVELOPMENT 329, 329-30 & n.2 (Tim Iglesias & Rochelle E. Lento eds., 2006) ("The HOPE VI Program was first created as a demonstration program for urban revitalization under the Department of Veteran Affairs and Housing and Urban Development, and Independent Agencies Appropriations Act of 1993, Pub. L. No. 102-389, 106 Stat. 1579 (1993).").
72. See SUSAN J. POPKIN ET AL., URBAN INST., A DECADE OF HOPE VI: RESEARCH FINDINGS AND POLICY CHALLENGES 1 (2004), http://www.urban.org/UploadedPDF/411002_HOPEVI.pdf (listing the program's objectives).
73. Ngai Pindell, Is There Hope for HOPE VI?: Community Economic Development and Localism, 35 CONN. L. REV. 385, 388 (2003);
74. Cara Hendrickson, Racial Desegregation and Income Deconcentration in Public Housing, 9 GEO. J. ON POVERTY L. & POL'Y 35 (2002).
75. See John J. Ammann, Housing Out the Poor, 19 ST. LOUIS U. PUB. L. REV. 309, 319-21 (2000).
76. See 42 U.S.C. § 1437f (2000);
77. Laura Bacon, Godinez v. Sullivan-Lackey : Creating a Meaningful Choice for Housing Choice Voucher Holders, 55 DEPAUL L. REV. 1273, 1276 n.33 (2006) ("The initial legislation providing low-income housing assistance was passed as section 8 of chapter 896 of the Housing Act of 1937, thus termed 'Section 8.'");
78. id. at 1276 n.35 (noting that Congress officially renamed Section 8 the Housing Choice Voucher Program in October 1999).
79. See U.S. Dep't of Hous. & Urban Dev., Tenant Based Vouchers, http://www.hud.gov/offices/pih/programs/hcv/tenant.cfm (last visited Apr. 16, 2007).
80. Id.
81. Id.
82. See Congress Cuts Funding to Housing Voucher Program, ST. LOUIS DAILY REC., Feb. 11, 2005;
83. Henry Cisneros & Bruce Katz, Op-Ed., Hindering Homeownership, BOSTON GLOBE, May 19, 2004, at A19.
84. Paula Beck, Fighting Section 8 Discrimination: The Fair Housing Act's New Frontier, 31 HARV. C.R.-C.L. L. REV. 155, 159 (1996). A 2001 newspaper article reported an "admittedly 'unscientific' survey" that found "[l]ess than one-third of Madison area landlords and apartment managers accept federal housing vouchers," that available Section 8 housing is concentrated in certain parts of the city, and that landlords "have long complained of onerous paperwork and troubles associated with low-income families."
85. Judith Davidoff, Most Landlords Don't Take Vouchers, CAP. TIMES (Madison, Wis.), Jan. 23, 2001, at 1C.
86. See Beck, supra note 68, at 158-60.
87. See HUD FY2006 BUDGET, supra note 4.
88. See CTR. ON BUDGET & POLICY PRIORITIES, ESTIMATED VOUCHER CUTS IN 2006 UNDER HOUSE AND SENATE BILLS: WISCONSIN (2005), http://www.cbpp.org/states/8-24-05hous-wi.pdf.
89. See Georgia Pabst, Barrett Warns of Looming Housing Crisis, MILWAUKEE J. SENTINEL, Sept. 30, 2004, at B3;
90. Dane County Hous. Auth., Contact Us, http://www.madison.com/communities/ dcha/contact.php (last visited Apr. 16, 2007);
91. see also Christina Beam, Rural-Homeless Problem on the Rise, WIS. ST. J., Aug. 25, 2005, at B1 (reporting that there are consistently around 400 people on the Sauk County voucher waiting list);
92. Andy Behrendt, Brown County Housing Authority Closes Assistance Enrollment, GREEN BAY PRESS-GAZETTE, Sept. 27, 2005, at 5B (reporting that Brown County capped its waiting list at 2,400 households);
93. Alex Hummel, Housing List May Reopen, Section 8 List Hit the Roof Last Year, OSHKOSH NW. (Wis.), June 29, 2005 (reporting that the City of Oshkosh and Winnebago County closed their waiting lists in 2004 after peaking at 900 applicants).
94. GOVERNOR'S TASK FORCE FOR HOUS. PRES., PRESERVING WISCONSIN'S QUALITY AFFORDABLE RENTAL HOUSING 3 (2004), http://www.wheda.com/cat_mf/PreservationReport.pdf.
95. Id.;
96. see also JOINT CTR. FOR HOUS. STUDIES, HARVARD UNIV., AMERICA'S RENTAL HOUSING: HOMES FOR A DIVERSE NATION 2 (2006) (reporting that two-thirds of lower-income families nationwide live in privately owned rental properties that tend to be older, smaller, and poorly managed).
97. See GOVERNOR'S TASK FORCE FOR HOUS. PRES., supra note 73, at 14.
98. Id. at 11.
99. Id. at 14.
100. See White House Record of Achievement, http://www.whitehouse.gov/ infocus/achievement/chap7.html (last visited June 7, 2007) ("The U.S. homeownership rate reached a record 69.2% in the second quarter of 2004.").
101. See JOINT CTR. FOR HOUS. STUDIES, supra note 74, at 2 (stating that, primarily due to an increase in immigration, the number of rental households has remained steady at 34 percent, with "nearly 3 million new rental units . . . built between 1994 and 2003").
102. See id. at 11 (noting that construction has focused on the high-end market, that the "middle market" has also been "robust," but that there is "little relief" for low-income renters).
103. See Allison D. Christians, Breaking the Subsidy Cycle: A Proposal for Affordable Housing, 32 COLUM. J.L. & SOC. PROBS. 131, 136-37 (1999).
104. See infra Part III.B.2.a.
105. See Charles G. Field, Building Consensus for Affordable Housing, 8 HOUS. POL'Y DEBATE 801, 803-04 (1997).
106. See Justin D. Cummins, Housing Matters: Why Our Communities Must Have Affordable Housing, 28 WM. MITCHELL L. REV. 197, 212-15 (2001) (assessing these four common fears).
107. See ADVISORY COMM'N ON REGULATORY BARRIERS TO AFFORDABLE HOUS., "NOT IN MY BACKYARD": REMOVING BARRIERS TO AFFORDABLE HOUSING 1-1 (1991) [hereinafter NIMBY REPORT], http://www.huduser.org/Publications/pdf/NotInMyBackyard.pdf.
108. See id.;
109. see also WILLIAM A. FISCHEL, THE HOMEVOTER HYPOTHESIS: HOW HOME VALUES INFLUENCE LOCAL GOVERNMENT TAXATION, SCHOOL FINANCE, AND LAND-USE POLICIES 1 (2001);
110. NEIL K. KOMESAR, LAW'S LIMITS: THE RULE OF LAW AND THE SUPPLY AND DEMAND OF RIGHTS 85-86 (2001) (noting that powerful blocs of homeowners can influence zoning regulations).
111. Jim Stingl & Michele Derus, As Apartment Rents Sink, Neighbors' Anxiety Rises, MILWAUKEE J. SENTINEL, Jan. 31, 1999, News, at 1.
112. See 26 U.S.C. § 42 (2000)
113. Id.
114. Id.
115. Id.
116. Id.
117. Id.
118. See Lake Bluff Hous. Partners v. City of S. Milwaukee (Lake Bluff III), 222 Wis. 2d 222, 225, 588 N.W.2d 45, 46 (Ct. App. 1998)
119. aff'd after remand by Lake Bluff IV, 2001 WI App 150, 246 Wis. 2d 785, 632 N.W.2d 485 (2001).
120. See Lake Bluff IV, 2001 WI App 150, ¶ 3.
121. Brief of Appellant at 4, Lake Bluff IV, 2001 WI App 150, 246 Wis. 2d 785, 632 N.W.2d 485 (No. 00-1958).
122. Id.
123. Lake Bluff Hous. Partners v. City of S. Milwaukee (Lake Bluff II), 197 Wis. 2d 157, 163, 540 N.W.2d 189, 191 (1995)
124. rev'd and remanded after remand by Lake Bluff III, 222 Wis. 2d 222, 588 N.W.2d 45.
125. Lake Bluff IV, 2001 WI App 150, ¶ 3.
126. See id. ¶¶ 3-4.
127. See id. ¶ 4.
128. See id. ¶ 5.
129. See id. ¶ 22 (discussing the claims of the "tenants living in the building").
130. Id. ¶ 6.
131. Id. ¶ 10 (noting Lake Bluff's claims that the trial court's erred in concluding that (1) the City had clean hands, (2) abatement would not have caused unnecessary hardship, and (3) general equities of the situation could not save the buildings).
132. Id. ¶ 29 ("[U]ltimately it was Lake Bluffs own business decision, driven by the potential for financial gain, which resulted in proceeding with construction despite uncertainty of outcome, causing the ultimate financial loss.").
133. Letter from Bruce O'Neill, Attorney for Lake Bluff Partners, to Author (Jan. 15, 2007) (on file with the Wisconsin Law Review) (citing State Fin. Bank v. City of S. Milwaukee, No. 00-C-1530, 2006 U.S. Dist. LEXIS 67629 (E.D. Wis. Sept. 20, 2006));
134. see also Georgia Pabst, Legal Aid Groups Join Apartment Fight, MILWAUKEE J. SENTINEL, Jan. 23, 2003, at 4B.
135. See Letter from Bruce O'Neill to author, supra note 107.
136. See State Fin. Bank, 2006 U.S. Dist. LEXIS 67629.
137. See, e.g., Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 387-88 (1926).
138. See id.
139. See e.g., id. at 395.
140. Amy Rinard, Affordable Housing Getting Pushed Beyond Suburbs, MILWAUKEE J. SENTINEL, Oct. 13, 2002, at 1B.
141. Id.
142. KOMESAR, supra note 86, at 85.
143. See JULIAN GROSS ET AL., COMMUNITY BENEFITS AGREEMENTS: MAKING DEVELOPMENT PROJECTS ACCOUNTABLE 9 (2005), http://www. californiapartnership.org/downloads/CBA%20Handbook%202005%20final.pdf.
144. Id. at 10 (listing examples of benefits that can be negotiated as part of a CBA, including "a living wage requirement for workers employed in the development" and "construction of affordable housing").
145. Id.
146. Id.
147. See BRENDA PARKER, THIS LAND IS OUR LAND: THE BATTLE FOR A COMMUNITY BENEFITS AGREEMENT IN MILWAUKEE 1 (2005), http://www.laborstudies.wayne.edu/power/downloads/Parkeast.pdf.
148. Id.
149. Id.
150. Id.
151. Id. at 2.
152. Id.
153. Id. at 4.
154. Id. at 3.
155. Id. at 4.
156. Id.
157. Id.
158. Id. at 5.
159. Id.
160. Peter W. Salsich, Jr., Urban Housing: A Strategic Role for the States, 12 YALE L. & POL'Y REV. 93, 106-07 (1994).
161. DIV. OF HOUS. & CMTY. DEV., WIS. DEP'T OF COMMERCE, DHCD HOUSING/ HOMELESS OVERVIEW 2 (2007), http://commerce.wi.gov/housing/ BOH-Fact-Sheets/cd-boh-programs.pdf.
162. Wis. Hous. & Econ. Dev. Auth., WHEDA Multifamily Financing Products, http://www.wheda.com/cat_mf/products.asp (last visited Apr. 16, 2007) (giving detailed information about several WHEDA programs);
163. see also WIS. STAT. § 234.02 (2005-06) (creating WHEDA).
164. WIS. STAT. § 66.1001; Wis. Legislative Reference Bureau, Brief 04-7, Smart Growth After Five Years 1 (2004), http://www.legis. state.wi.us/lrb/pubs/wb/04wb7.pdf.
165. See WIS. STAT. § 66.1001(2)(b) (describing the housing element that must be part of each comprehensive plan).
166. DIV. OF HOUS. & CMTY. DEV., supra note 134, at 1.
167. Id.
168. Id.
169. See WIS. DEP'T OF COMMERCE, 2005-2009 CONSOLIDATED PLAN, PROGRAM YEAR 2 ACTION PLAN (APRIL 1, 2006 - MARCH 31, 2007), at 7-8 (2005).
170. See WIS. DEP'T OF COMMERCE, 2005-2009 CONSOLIDATED PLAN, SUMMARY TABLE (reporting "activities" funded by each program, including that both CDBG and HOME funds may be used for homebuyer assistance, and that all of the $3,3 million state housing assistance funds are restricted to "home ownership opportunities" and "homebuyer assistance and counseling").
171. But see WIS. DEP'T OF COMMERCE, supra note 141, at 11 (reporting a goal that HUD and State Housing Programs assist 1,500 renters from 2006 to 2007). The reason for the disparity between this goal and the 1,215 people helped by HOME and Community Development Block Grant funds is unclear.
172. See WIS. STAT. § 560.04(3) (1985-86), invalidated by Wisconsin ex rel. Dep't of Dev. v. Bldg. Comm'n, 139 Wis, 2d 1, 406 N.W.2d 728 (1987).
173. Dep't of Dev., 139 Wis. 2d 1, 406 N.W.2d 728.
174. Id. at 4-6, 406 N.W.2d at 728-29 (quoting WIS. CONST, art. VIII, § 10).
175. See Senate Approves Housing Amendment, CAP. TIMES (Madison, Wis.), Feb. 9, 1991, at 4A;
176. Assembly Approves Housing Amendment, CAP. TIMES (Madison, Wis.), Feb. 6, 1991, at 6A.
177. See Richard Eggleston, Housing Referendum Defeated, WIS. ST. J., Apr. 3, 1991, at 3D.
178. State ex rel. Warren v. Nusbaum, 59 Wis. 2d 391, 451, 208 N.W.2d 780, 814 (1973) (upholding the enactment of the statute, but striking certain parts).
179. WIS. STAT. § 234.02(1) (2005-06).
180. Dep't of Dev., 139 Wis.2d at 18, 406 N.W. 2d and 734.
181. Nusbaum, 39 Wis.2d at 397, 208 N.W.2d at 786.
182. Wis. Hous. & Econ. Dev. Auth., Multifamily Professionals, http://www.wheda.com/mf.asp (last visited Jan. 14, 2007). [hereinafter WHEDA Website]
183. Wis. Hous. & Econ. Dev. Auth., Multifamily Financing Products, http://www.wheda.com/cat_mf/products.asp (last visited Apr. 16, 2007).
184. Id.
185. See WHEDA Website, supra note 153.
186. See generally David Philip Cohen, Improving the Supply of Affordable Housing: The Role of the Low-Income Housing Tax Credit, 6 J.L. & POL'Y 537 (1998). The federal government began offering low-income-housing tax credits to encourage developers and building owners to develop or rehabilitate multifamily apartments for low-income people.
187. See id. at 537-38. Although created as part of the Tax Reform Act of 1986, these credits became a permanent part of section 42 of the tax code in 1993.
188. See id. To summarize, for the building to qualify, it "must be a residential rental property, and must set aside a minimum number of rent-restricted residential units."
189. Id. at 542 (citing I.R.C. § 42(g) (2000)). Owners may be eligible to claim a tax credit each year for up to ten years, based on the number of units set aside for low-income tenants.
190. See id. at 541-42. State housing agencies determine how to allocate these credits,
191. see id. at 567 (citing I.R.C. § 42(h)), but they must give preference to projects that serve the lowest-income tenants and projects that are otherwise obligated to rent to low-income tenants the longest.
192. See id. (citing I.R.C. § 42(m)(1)).
193. WHEDA Website, supra note 153.
194. News Release, Wis. Hous. & Econ. Dev. Auth., State Wins National Housing Award for Program Excellence (Nov. 10, 2005), http://www.wheda.com/ WELCOME/2005Releases/11-10-05.asp;
195. News Release, Wis. Hous. & Econ. Dev. Auth., Governor Doyle Announces $10 Million to Help Preserve Affordable Housing (Dec. 8, 2005), http://www.wheda.com/welcome/2005releases/12-08-05.asp [hereinafter Doyle Announcement].
196. Doyle Announcement, supra note 158.
197. Id.
198. WHEDA Website, supra note 153. The current rate is 6.200 percent.
199. See id. (last visited June 7, 2007).
200. Id. The developments must provide rental housing for families, the elderly, or people with disabilities.
201. See Wis. Hous. & Econ. Dev. Auth., Multifamily Rental Housing "Preservation Plus"-Tax-Exempt Bond Loan Term Sheet, http://www.wheda.com/CAT_mf/PresPlus.pdf (last visited Apr. 16, 2007). Additionally, all participating developers must agree to set aside either 20 percent of their units for households earning no more than 50 percent of the county's median income, or 40 percent of units for households with incomes not exceeding 60 percent of the county's median income.
202. Id.
203. Wis. Hous. & Econ. Dev. Auth., Construction Plus Loan, http://www.wheda.com/cat_mf/conplus.asp (last visited Apr. 16, 2007).
204. See Wis. Hous. & Econ. Dev. Auth., 2005 LOW INCOME HOUSING TAX CREDIT APPLICATIONS 4 (2005), http://www.wheda.com/cat_tca/ 2005_lihtc_approved_applicants.pdf.
205. See GOVERNOR'S TASK FORCE FOR HOUS. PRES. , supra note 73, at 4.
206. See WIS. STAT. § 66.1001 (2005-06). For a more thorough discussion of Smart Growth,
207. see Manan M. Yajnik, Note, Challenges to "Smart Growth": State Legislative Approaches to Comprehensive Growth Planning and the Local Government Issue, 2004 WIS. L. REV. 229.
208. See Yajnik, supra note 166, at 248 (explaining that Wisconsin's Smart Growth law does not mandate that the local government plans comport with the state's goals);
209. see also Wis. Legislative Reference Bureau, supra note 136, at 3 ("There is even some question as to whether municipalities are actually required to participate in Smart Growth, and whether or not the compliance requirement will in fact bind governments to their plans.").
210. Brian W. Ohm, Reforming Land Planning Legislation at the Dawn of the 21st Century: The Emerging Influence of Smart Growth and Livable Communities, 32 URB. LAW. 181, 184 (2000).
211. WIS. STAT. § 66.1331(5)(a).
212. Id. § 66.1001(2).
213. League of Wis. Muns., Zoning FAQ 13, http://www.lwm-info.org/legal/faq/ faq185.html (last visited June 7, 2007).
214. WIS. STAT. § 66.1001(3).
215. Id. § 66.1001(2)(b).
216. See Brian Ohm, Housing Wisconsin: A Guide to Preparing the Housing Element of a Local Comprehensive Plan, http://www.wisc.edu/urpl/people/ohm/ projects/housingf/hsg_text.html (last visited Apr. 16, 2007).
217. See id.
218. Id.
219. Id.
220. Id.
221. These elements include land use; transportation; economic development; utilities and community facilities; and agricultural, natural, and cultural resources. WIS. STAT. § 66.1001(2) (2005-06).
222. Id.
223. See Letter from Karyn Rotker, Poverty, Race, & Civil Liberties Att'y, ACLU of Wis., to Philip Evenson, Executive Dir., Se. Wis. Reg'l Planning Comm. (July 21, 2004), http://www.aclu-wi.org/wisconsin/rights_of_poor/ AffordableHousingSEWRPC.pdf.
224. Id. at 1.
225. See MINN. STAT. § 473.859 Subd. 4 (2006).
226. But see Edward G. Goetz et al., The Minnesota Land Use Planning Act and the Promotion of Low- and Moderate-Income Housing in Suburbia, 22 LAW & INEQUALITY 31, 67 (2004) (summarizing some weaknesses of the Minnesota law).
227. Goetz et al., supra note 182, at 71.
228. See Richard P. Voith & David L. Crawford, Smart Growth and Affordable Housing, in GROWTH MANAGEMENT AND AFFORDABLE HOUSING: DO THEY CONFLICT? 82, 83 (Anthony Downs ed., 2004) (explaining that well-executed Smart Growth plans can "increase the supply of less land-intensive housing of a moderate scale").
229. See id. at 87 (citing Danielle Arigoni, Housing and Smart Growth: Making the Connection, Smart Growth Network Subgroup on Affordable Housing (2001), available at http://www.epa.gov/livability/pdf/epa_ah_sg. pdf).
230. See Randal O'Toole, Portland: Smart Growth's Bad Example 1 (Nat'l Ctr. for Policy Analysis, Brief Analysis No. 305, 1999), available at http://www.ncpa.org/pub/ba/pdf/ba305.pdf. ("Portland proves that Smart Growth does not work."). Prior to adopting Smart Growth in 1989, Portland was one of the fifty most affordable housing markets in the country, but since 1996 it has been in the bottom five.
231. Id. The report adds that "[planners are turning Portland into the congested, polluted, high-cost place citizens thought they were voting to avoid. . . . Smart Growth is the sensible policy only if their goal is to turn their cities into Los Angeles."
232. Id. at 2.
233. See Douglas Porter, The Promise and Practice of Inclusionary Zoning, in GROWTH MANAGEMENT AND AFFORDABLE HOUSING: DO THEY CONFLICT?, supra note 184, at 212, 248.
234. See supra Part IV.A.
235. Although states and municipalities can also use IZ to increase affordable homeownership options, this Comment will only address these programs in the context of affordable rental housing.
236. Cecily T. Talbert & Nadia L. Costa, Inclusionary Housing Programs: Local Governments Respond to California's Housing Crisis, 30 B.C. ENVTL. AFF. L. REV. 567, 570-71 (2003).
237. Id.
238. See Robert W. Burchell & Catherine C. Galley, Inclusionary Zoning: Pros and Cons, NEW CENTURY HOUSING, Oct. 2000, at 3 ("The integration of a percentage of low- and moderate-income housing units into market-rate developments thus avoids the problems of overconcentration, ghettoization and stigmatization generally associated with solely provided and isolated affordable housing efforts.").
239. Developer incentives vary according to the community's needs and what the community can offer. See MINN. HOUS. FIN. AGENCY, REPORT TO THE LEGISLATURE: STUDY OF INCLUSIONARY HOUSING INITIATIVES 7 (2002), http://www.mhfa.state.mn.us/about/InclusionReport.pdf. Examples of these incentives include waivers of zoning requirements, including density, area, height, open space, use or other provisions; local tax abatements; waiver of permit fees or land dedication; fewer required developer-provided amenities and acquisitions of property; "fast track" permitting; [and] the subsidization or provision of infrastructure for the developer by the jurisdiction.
240. Burchell & Galley, supra note 192, at 1.
241. See Peter Salsich, State and Local Regulation Promoting Affordable Housing, in THE LEGAL GUIDE TO AFFORDABLE HOUSING DEVELOPMENT, supra note 59, at 73, 90.
242. Id.;
243. see Joel Norwood, Note, Trading Affordable Housing Obligations: Selling a Civic Duty or Buying Efficient Development?, 39 CONN. L. REV. 347, 358-59 (explaining how variations in the size of the development, percentage of affordable units required, income targets, and period of mandated affordability will influence an ordinance's impact).
244. See, e.g., Burchell & Galley, supra note 192, at 5-7.
245. See id. at 7;
246. Barbara Ehrlich Kautz, In Defense of Inclusionary Zoning: Successfully Creating Affordable Housing, 36 U.S.F. L. REV. 971, 983-86 (2002).
247. Kautz, supra note 197, at 989-1011 (comparing takings challenges to IZ ordinances).
248. Id. at 1010-17 (analyzing challenges to IZ ordinances that alleged violations of state rent-control statutes).
249. See id. at 997-1003 (discussing recent cases in which courts upheld IZ ordinances in the face of takings challenges).
250. See Apartment Ass'n of S. Cent. Wis. v. City of Madison, 2006 WI App 192, 296 Wis. 2d 173, 722 N.W.2d 614 (holding that the City of Madison's IZ rdinance violated Wisconsin Statutes section 66.1015(1), which states that cities have the power to regulate rents);
251. Town of Telluride v. Lot Thirty-Four Venture LLC, 3 P.3d 30, 40 (Colo. 2000) (holding that Telluride's IZ ordinance violated the state rent-control statute).
252. See Kautz, supra note 197, at 1017 (discussing strategies for amending IZ ordinances to comply with state rent-control laws).
253. See id. at 1018-21 (offering guidance on drafting an IZ ordinance to withstand a takings challenge).
254. See S. Burlington County NAACP v. Twp. of Mount Laurel (Mount Laurel I), 336 A.2d 713, 717 (N.J. 1975), overturned in part by Burlington County NAACP v. Twp. of Mount Laurel (Mount Laurel IT), 456 A.2d 390 (N.J. 1983) (upholding the builder's remedy, but striking down the amended zoning ordinance).
255. See id. at 731.
256. See id. at 718-19.
257. See id. at 716-17 & n.3.
258. Id. at 734 (setting a fair-share requirement);
259. Mount Laurel II, 456 A.2d at 420 (allowing a builder's remedy on a case-by-case basis).
260. MASS. GEN. LAWS, eh. 40B, §§ 20-23 (2007).
261. R.I. GEN. LAWS § 45-53-1 to -8 (West 2007).
262. CONN. GEN. STAT. § 8-30g (2006).
263. See, e.g., Zoning Bd. of Appeals v. Ardemore Apartments, 767 N.E.2d 584, 591-92 & n.20 (Mass. 2002) (summarizing the legislative action in various states).
264. Mount Laurel I focused on "developing" municipalities, but Mount Laurel II removed this distinction.
265. See Mount Laurel II, 456 A.2d at 418, 422-23.
266. Mount Laurel I, 336 A.2d. at 731-32.
267. Id. at 733.
268. Id. at 728.
269. Id. at 725.
270. See id.
271. Id. (noting that the term "general welfare" was so broad that it encompassed the other requirements).
272. Id.
273. Id. at 728.
274. Id. at 727-28.
275. Mount Laurel II, 456 A.2d at 411.
276. Id. at 410 ("Papered over with studies, rationalized by hired experts, the ordinance at its core is true to nothing but Mount Laurel's determination to exclude the poor.").
277. Id. at 410 & n.1.
278. Id. at 418.
279. Id. at 419.
280. See id. at 445 (stating that if other techniques to ensure municipalities contribute their "fair share" fail, municipalities must use IZ).
281. See id. at 419.
282. See id. at 420.
283. See N.J. STAT. ANN. § 52:27D-302 (West 2006).
284. See id. § 52:27D-305.
285. See id. § 52:27D-307, -315.
286. See id. § 52:27D-307.
287. See N.J. Dep't Cmty. Affairs, About COAH, http://www.state.nj.us/ dca/coah/about.shtml (last visited Jan. 14, 2007).
288. Toll Bros., Inc, v. Twp. of W. Windsor, 803 A.2d. 53, 92 (N.J. 2002);
289. see id. at 93 (Stein, J., concurring in part and dissenting in part) (referring to amicus curiae briefs filed by the Rutgers Environmental Law Clinic and the Fair Share Housing Center).
290. Id. at 94. The regulations required inclusionary developments to be affordable to those earning 57.5 percent of area median income.
291. See id.
292. See John Charles Boger, Mount Laurel at 21 Years: Reflections on the Power of Courts and Legislatures to Shape Social Change, 27 SETON HALL L. REV. 1450, 1455-58 (1997)
293. (citing Naomi Bailin Wish & Stephen Eisdorfer, The Impact of the Mount Laurel Initiatives: An Analysis of the Characteristics of Applicants and Occupants, 27 SETON HALL L. REV. 1268 (1997)). Boger conceded that the idea that the urban poor may not want to "abandon the richness and cultural diversity of city life for the relative sterility of the white suburbs" may be plausible in some cities.
294. Id. at 1455-56. After reviewing census data, however, he concluded that the New Jersey cities studied by Wish and Eisdorfer lacked the "cultural and economic vitality" that would prompt the urban poor to remain if they were aware of viable housing options in the suburbs.
295. Id. at 1457-58.
296. See id.
297. See id. at 1458-61.
298. See id. at 1459-60.
299. See id.
300. See id. at 1460.
301. See id. at 1460-61.
302. See supra Part III.B.2.
303. See William A. Fischel, Voting, Risk Aversion, and the NIMBY Syndrome: A Comment on Robert Nelson's "Privatizing the Neighborhood, " 7 GEO. MASON L. REV. 881, 891 (1999) ("The political market's failure in NIMBYism is that those who would benefit from the project are either absent from the jurisdiction, or present in such small numbers that they are politically ineffective.'').
304. Salsich, supra note 194, at 74-89 (discussing approaches by California, Connecticut, Illinois, Massachusetts, New Jersey, and Rhode Island). If successful, builders can obtain a state override of the local zoning decision.
305. Act of Aug. 23, 1969, ch. 774, 1969 Mass. Acts 712 (codified at MASS. GEN. LAWS eh. 40B, §§ 20-23 (2007)).
306. Salsich, supra note 194, at 75.
307. See MASS. GEN. LAWS eh. 40B, § 20 ("'Low or moderate income housing' [is] any housing subsidized by the federal or state government under any program to assist the construction of [such] housing . . . whether built or operated by any public agency or any nonprofit or limited dividend organization.").
308. Id. § 21.
309. Id.
310. Id. § 23.
311. Id.
312. Id. § 20.
313. Salsich, supra note 194, at 76.
314. MASS. GEN. LAWS eh. 40B, § 23.
315. Id.
316. Salsich, supra note 194, at 78
317. (citing Tom Broadrick, My Two Cents, 54 LAND USE L. & ZONING DIG. 6 (2002)).
318. See CONN. GEN. STAT. § 8-30g(a)(1) (2006) (defining "affordable housing development").
319. Id. § 8-30g(b)(1).
320. Id. § 8-30g(b)(2)(g).
321. Id. § 8-30g.
322. Id.
323. See id. § 8-30g(a)(3), (defining "assisted housing").
324. Id.
325. See N J. STAT. ANN. § 52:27D-301 (2006)
326. Id. § 52:27D-309.
327. Id. § 52:27D-310. The Act defines "low income housing" as housing affordable according to HUD standards, "or other recognized standards for home ownership and rental costs and occupied or reserved by households with a gross household income equal to 50 [percent] or less of the median gross household income for households of the same size within the housing region in which the housing is located."
328. Id. § 52:27D-304(c). The Act defines "moderate income housing" similarly, except that it involves "gross household income equal to more than 50 percent but less than 80 [percent] of the median gross household income for households of the same size within the housing region."
329. Id. § 52:27D-314(a) (measuring "sufficiency" by town-by-town fair-share calculations).
330. Id. § 52:27D-314(b). A municipality may "propose the transfer of up to 50 percent of its fair share to another municipality within its housing region" via a COAH-approved regional-contribution agreement.
331. Id. § 52:27D-312.
332. Id. § 52:27D-317(a).
333. Id.
334. See N.J. Dep't Cmty. Affairs, supra note 235.
335. See Thomas A. Brown, Note, Democratizing the American Dream: The Role of a Regional Housing Legislature in the Production of Affordable Housing, 37 U. MICH. J.L. REFORM 599, 623-24 (2004) (asserting that, although zoning overrides are more effective than judicial review in creating "significant numbers of new units," their "inherently confrontational nature" is a fundamental flaw).
336. See Boger, supra note 238, at 1458-59;
337. Toll Bros., Inc. v. Twp. of W. Windsor, 803 A.2d. 53, 100-01 (N.J. 2002) (Stein, J., concurring in part and dissenting in part).
338. WIS. STAT. § 62.23(7) (2005-06).
339. Id. § 61.35.
340. Id. § 60.61(2). In addition, before exercising their zoning authority, the town board must request that the county board create a county zoning ordinance.
341. Id. § 60.61(3).
342. If the county does not do so, or delays for over a year, the town may exercise its authority. Id. § 60.61(3)(a)-(c).
343. Id. § 59.69(2)(bm) ("[T]he county zoning agency shall be only a policy-making body determining the broad outlines and principles governing such administrative powers and duties and shall be a quasi-judicial body with decision-making power . . . .");
344. see also id. § 59.69(2)(d) (listing the powers that the county retains, including the power to "accept, review and expend funds, grants and services" and to contract for services).
345. See id. § 62.23(7)(a) (applying to cities);
346. id. § 61.35 (applying section 62.23 to villages).
347. Id. § 59.69(1) (listing all of the purposes that counties must consider, and authorizing the board to plan for physical development and zoning).
348. See id.
349. Cohen v. Dane County Bd. of Adjustment, 74 Wis. 2d 87, 90, 246 N.W.2d 112, 114 (1976).
350. See Gregory D. Squires et al., Housing Affordability in the Milwaukee Metropolitan Area: A Matter of Income, Race, and Policy, 9 J. AFFORDABLE HOUSING & CMTY. DEV. L. 34, 65-66 (1999).
351. See WIS. STAT. § 59.69(1).
352. See id.
353. See Brown, supra note 275, at 609 (discussing how "the imposition of rules, instead of standards" is required to ensure the creation of affordable housing).
354. WIS. STAT. § 66.1015(1).
355. The Wisconsin Court of Appeals recently struck down the portion of the City of Madison's zoning law that pertained to affordable rental development as a violation of the rent-control statute. See Apartment Ass'n of S. Cent. Wis. v. City of Madison, 2006 WI App 192, 1 35, 296 Wis. 2d 173, 722 N.W.2d 614. This holding reveals that the Wisconsin legislature would likely need to amend the rent-control statute to allow for IZ.
356. See WIS. STAT. § 66.1015(1).
357. See CAL. HEALTH & SAFETY CODE § 33413(a) (West 2006) (mandating IZ in redevelopment areas);
358. CAL. COAL, FOR RURAL HOUS., INCLUSIONARY HOUSING IN CALIFORNIA: 30 YEARS OF INNOVATION (2003), http://www.nonprofithousing.org/ knowledgebank/publications/Inclusionary_Housing_CA_30years.pdf;
359. see also Home Builders Ass'n v. City of Napa, 108 Cal. Rptr. 2d 60, 64-65 (Ct. App. 2001).
360. See CAL. HEALTH & SAFETY CODE § 33413(b)(4).
361. See, e.g., Bus. & Prof'l People for the Pub. Interest, The 15% Inclusionary Housing Ordinance: Top 10 Questions, ttp://www.bpichicago.org/rah/ pubs/Top%2010%20Questions.doc (last visited Apr. 17, 2007).
362. See Ludwig et al., supra note 14, at 5-6.