More than six years after it was created, a state board designed to prod municipalities into building affordable housing has yet to hear one case.
The Illinois Housing Appeals Board was established in 2009 as part of the Illinois Housing Planning and Appeal Act (2003). That law required cities with less than 10 percent affordable housing to turn in affordable housing plans to the state.
Yet many towns flout that requirement without penalty. Under the law, if a municipality rejects an affordable housing proposal, the developer could plead to the Housing Appeals Board.
“By statute we meet at least four times a year. But for example we had a meeting set for a couple of weeks from now and I canceled it because bringing people from all over, we just sit and stare at each other,” said Warren Wolfson, a retired judge turned law professor, who’s the board chair. “It’s nice to see them but we don’t get anything done so it’s a waste of their time and expense money,”
The unpaid bipartisan board formed in 2008 but was never fully appointed by the governor until 2012. Members include a developer, zoning expert and affordable housing advocate.
Wolfson said the main reason there’ve been no cases is because suburbs and towns often invoke “home rule” — the right to self-govern without state intervention.
Even if the appeals board did get a case and ruled in a developer’s favor, Wolfson doubts the judgment would stick.
“I'm not sure we have the power to enforce our subpoenas or our decisions should we ever reach that stage, which doesn’t look like we’re going to do,” Wolfson said. He said the law would have to be changed, allowing the Illinois attorney general to enforce a decision.
Many cities that resist building housing for working and low-income families are affluent suburbs just outside Chicago. Last month a WBEZ analysis of Low Income Housing Tax Credits found that affordable housing tends to be clustered in areas with higher rates of poverty and racial segregation.
Between towns invoking home rule and an appeals board with no teeth, many question whether the law is working.
“If you’re a cynic, you would say they’re really not serious about it. It’s a good policy and in the final analysis, the failure to have enforcement procedures and to resolve the home rule issue indicates it’s more cosmetic than real,” Wolfson said.
Jeff Leslie, director of the Housing Initiative Clinic at the University of Chicago Law School, has another theory as to why developers aren’t taking their cases to the appeals board.
“I would start with the extreme reluctance of developers to sue the municipality over these kind of decisions to begin with. Most developers are repeat players and they’re looking to do repeat transactions in these jurisdictions. And to bite the hand that feeds you by suing them over a rejection is a big step for a developer to take,” Leslie said.
But that wasn’t developer Jessica Berzac’s reason.
A couple of years ago her company wanted to build a 50-unit project in suburban Wheeling for people with various disabilities. Many nearby residents objected. Berzac sued the village under the federal Fair Housing Act, bypassing the state appeals board altogether.
“The violation we felt there was a clear fair housing violation not necessarily a zoning-related violation because they weren’t necessarily saying multi-family couldn’t exist. Multi-family with services couldn’t exist,” she said.
A settlement was reached in federal court, and now the project is underway.
Leslie said Illinois can do more to strengthen the appeals board, which he believes was created with vague language. He points to other states like Connecticut and Massachusetts where the burden is more on municipalities.
“What it would mean is the local jurisdiction would have to make its case on the record for why this particular application was rejected,” Leslie said. “If they don’t pass the smell test, it’ll be easier for developers to present the case and easier for the board to conclude that there really wasn’t anything behind this decision other than animus toward affordable housing.”