Affordable Housing: No Oversight, No Progress

Todd Deger

Senior Editor

Loyola University Chicago School of Law, JD 2023

Originally passed in 2003, the Illinois Affordable Housing Planning and Appeal Act (AHPAA) requires cities with populations of at least 1,000 residents and less than ten percent affordable housing to submit their affordable housing plans to the state. Gail Schechter sits on the Illinois Housing Appeals Board, but she has never heard a case. The board was brought together in 2009 and fully appointed by Governor Pat Quinn in 2012 to provide checks and balances while Illinois communities create affordable housing. Affordable housing developers who believe they have been treated unfairly or rejected by a municipality are given a chance to appeal a city’s decision to reject their project. However, developers are not utilizing the appeals process. According to Schechter via WBEZ, “a developer just wants to do business. If they can’t build what they want to build, they’ll go to another community.”

With municipalities rejecting affordable housing projects and developers free to move on after an initial rejection, the Housing Appeals Board does not serve much of a function. It has even lost a member of the board as originally envisioned as a developer, a zoning expert, and an affordable housing advocate such as Gail Schechter. Schechter has voiced concern over the now two person board being unable to fulfill their role without a quorum.

Affordable housing defined

According to the AHPAA, “affordable housing” means housing that has a cost or rental amount that iw within the means of a household that may occupy moderate-income or low-income housing. “Housing that is affordable means housing for which the rent, any required parking, maintenance, landlord-imposed fees, and utilities constitute no more than 30% of the gross annual household income for a household of the size that may occupy the unit.”

“Home rule” is used as a weapon against affordable housing

Home rule allows for local solutions to local issues and problems, giving municipalities broad powers that have been construed extremely liberally. Essentially, a “home rule” designation allows a municipality to exercise any power and perform any function unless it is specifically prohibited from doing so by state law. Home rule status can be achieved in a variety of ways including the passing of a referendum. However, an automatic status change occurs when a population exceeds 25,000 residents.

Home rule provides various benefits, allowing municipalities to exercise governing authority without dependency on the General Assembly or Governor. The municipality is free to define their local finances and exercise authority over building and zoning. The only limits are those explicitly imposed by state law prohibitions.

Municipalities automatically achieving home rule status at 25,000 residents creates an interesting interaction with the AHPAA. The AHPAA applies to municipalities of 1,000 or more and municipalities of 25,000 or more have all the powers of home rule, which gives that right to self-govern with broad authority, even if it conflicts with the state. There is a strange population window that then exists between 1,000 and 25,000 where the state has the power to enforce the AHPAA without stepping on the toes of self-governing home rule units. Outside of that, however, home rule rules.

Home rule was never addressed directly in the AHPAA and no legislative note was requested or drafted during the legislative process. The Illinois Attorney General’s opinion has never been sought or rendered on home rule as it related to affordable housing. The only guidance on this issue comes from the Illinois Housing Development Authority, which encourages communities to make good faith efforts to comply with the AHPAA. All the Authority can do is say, “please.”

There is no consequence for flouting the law. How about incentives to following it?

In 2021, State Senator Ann Gillespie passed legislation in the Illinois Senate to encourage development of affordable housing in Illinois. “Creating incentives in the housing market will produce better options and more stable lives for working families across the state,” according to Gillespie. The Affordable Housing Grant Program Act does just this by creating incentives, actually enforcing the mandatory affordable housing plan for cities with at least 1,000, and even changing the calculation of tax liability for affordable housing complexes.

The incentives come in the form of property tax reduction. Developers who include twenty percent affordable housing can see a reduction in their property tax while any municipality of 1,000 people or more that does not submit an affordable housing plan could see state funds withheld. Perhaps most importantly, the Act’s final paragraph declares a home rule unit may not regulate the activities described within the Act in a more restrictive manner than the manner in which the State of Illinois does so. This preserves home rule in Illinois as an integral part of the Illinois State Constitution but does not allow municipalities to bend its use to be a weapon against affordable housing.

Six of the current forty-six municipalities that have at least 1,000 residents and less than ten percent affordable housing cite home rule and have stated they have no intention to submit a plan. Gillespie’s Affordable Housing Grant Program Act clarifies that home rule was not intended to allow municipalities to opt out of the affordable housing plan requirement.

Hope for affordable housing

While the Affordable Housing Grant Program Act does work to regulate and encourage affordable housing in Illinois, affordable housing developers continue to create and inspire with their proposals. The Chicago Family Health Center is one of six finalists for the Pritzker Traubert Foundation’s $10,000,000 Chicago Prize in 2022. As part of the project, two apartment buildings with seventy-six units and twenty-four condominiums would be rented out at sixty percent of the median area income and thus receive the “affordable housing” status. This project is the Chicago Family Health Center’s first venture in housing and retail with six previous affordable healthcare locations based in the South Side.

Thrive Exchange, as it has been called, stands as an example that developers want to work in affordable housing. With developers ready and willing, both the State of Illinois and local municipalities need to do their part to either encourage it or at the very least cease from creating impediments. Affordable housing has already arrived in our backyards and more is on the way.