093_SB1465 LRB093 10665 RCE 11004 b 1 AN ACT concerning affordable housing. 2 Be it enacted by the People of the State of Illinois, 3 represented in the General Assembly: 4 Section 1. Short title. This Act may be cited as the 5 Builders' Appeal Act. 6 Section 5. Findings. The legislature finds and declares 7 that: 8 (1) there exists an acute shortage of affordable, 9 accessible, safe, and sanitary housing for low-income and 10 moderate-income households in the State; 11 (2) it is imperative that action be taken 12 immediately to assure the availability of low-income and 13 moderate-income housing; and 14 (3) it is necessary for all local governments in 15 the State to assist in providing low-income and 16 moderate-income housing opportunities to assure the 17 health, safety, and welfare of all citizens of the State. 18 Section 10. Purpose. The purpose of this Act is to 19 provide expeditious relief from local ordinances and 20 regulations that inhibit the construction of affordable 21 housing needed to serve low-income and moderate-income 22 households in this State. The provisions of this Act shall be 23 liberally construed to accomplish this purpose. 24 Section 15. Definitions. As used in this Act: 25 "Affordable housing" means housing that has a sales price 26 or rental amount that is within the means of a household that 27 may occupy moderate-income, low-income, or very low-income 28 housing. In the case of dwelling units for sale, housing that 29 is affordable means housing in which mortgage, amortization, -2- LRB093 10665 RCE 11004 b 1 taxes, insurance, and condominium or association fees, if 2 any, constitute no more than 30% of the gross annual 3 household income for a household of the size that may occupy 4 the unit. In the case of dwelling units for rent, housing 5 that is affordable means housing for which the rent and 6 utilities constitute no more than 35% of the gross annual 7 household income for a household of the size that may occupy 8 the unit. 9 "Affordable housing developer" means a nonprofit entity, 10 limited equity cooperative, public agency, or private 11 individual, firm, corporation, or other entity seeking to 12 build an affordable housing development. 13 "Affordable housing development" means (i) any housing 14 that is subsidized by the federal or State government or (ii) 15 any housing in which at least 20% of the dwelling units are 16 subject to covenants or restrictions that require that the 17 dwelling units be sold or rented at prices that preserve them 18 as affordable housing for a period of at least 30 years. 19 "Approving authority" means the planning commission, 20 zoning board of appeals, governing body, or other local 21 government body designated by law or ordinance to review and 22 approve an affordable housing development. 23 "Development" means any building, construction, 24 renovation, mining, extraction, dredging, filling, 25 excavation, or drilling activity or operation; any material 26 change in the use or appearance of any structure or in the 27 land itself; the division of land into parcels; any change in 28 the intensity or use of land, such as an increase in the 29 number of dwelling units in a structure or a change to a 30 commercial or industrial use from a less intensive use; and 31 any activity that alters a shore, beach, seacoast, river, 32 stream, lake, pond, canal, marsh, dune area, woodlands, 33 wetland, endangered species habitat, aquifer, or other 34 resource area, including coastal construction or other -3- LRB093 10665 RCE 11004 b 1 activity. 2 "Exempt local government" means any local government in 3 which at least 10% of its housing units, at the time an 4 application is made under this Act, have been subsidized by 5 the federal or State government, or by a private entity, and 6 in which occupancy is restricted or intended for low-income 7 and moderate-income households. 8 "Household" means the person or persons occupying a 9 dwelling unit. 10 "Local government" means a county, municipality, 11 township, or other political subdivision that has the primary 12 authority to review development plans. 13 "Low-income housing" means housing that is affordable, 14 according to the federal Department of Housing and Urban 15 Development, for either home ownership or rental, and that is 16 occupied, reserved, or marketed for occupancy by households 17 with a gross household income that does not exceed 50% of the 18 median gross household income for households of the same size 19 within the county or primary metropolitan statistical area in 20 which the housing is located. For purposes of this Act, the 21 term "low-income housing" includes "very low-income housing". 22 "Moderate-income housing" means housing that is 23 affordable, according to the federal Department of Housing 24 and Urban Development, for either home ownership or rental, 25 and that is occupied, reserved, or marketed for occupancy by 26 households with a gross household income that is greater than 27 50% but does not exceed 80% of the median gross household 28 income for households of the same size within the county or 29 primary metropolitan statistical area in which the housing is 30 located. 31 "Unnecessary cost generating requirements" mean those 32 development standards that may be eliminated or reduced that 33 are not essential to protect the public health, safety, or 34 welfare or that are not critical to the protection or -4- LRB093 10665 RCE 11004 b 1 preservation of the environment, and that may otherwise make 2 a project economically infeasible. An unnecessary cost 3 generating requirement may include, but is not limited to, 4 excessive standards or requirements for: minimum lot size, 5 building size, building setbacks, spacing between buildings, 6 impervious surfaces, open space, landscaping, buffering, 7 reforestation, road width, pavements, parking, sidewalks, 8 paved paths, culverts and stormwater drainage, and oversized 9 water and sewer lines to accommodate future development 10 without reimbursement. 11 "Very low-income housing" means housing that is 12 affordable, according to the federal Department of Housing 13 and Urban Development, for either home ownership or rental, 14 and that is occupied, reserved, or marketed for occupancy by 15 households with a gross household income equal to 30% or less 16 of the median gross household income for households of the 17 same size within the county or primary metropolitan 18 statistical area in which the housing is located. 19 Section 20. Local government action on affordable 20 housing applications. 21 (a) An affordable housing developer may file an 22 application for an affordable housing development in any 23 nonexempt local government with the approving authority, in 24 accordance with a checklist of items required for a complete 25 application that is established by rule of the Department of 26 Commerce and Community Affairs. 27 (b) The approving authority shall review the application 28 in accordance with the standards set forth in Section 25, and 29 has the power to issue a comprehensive permit. The 30 comprehensive permit shall include all local government 31 approvals or licenses, other than a building permit, 32 necessary for the authorization of the affordable housing 33 development. The approving authority shall hold at least one -5- LRB093 10665 RCE 11004 b 1 public hearing on the proposal within 60 days after receipt 2 of the application and shall render a decision within 40 3 business days after the conclusion of the public hearing. 4 (c) Failure of the approving authority to act within 5 this time frame means that the authority is deemed to have 6 approved the application, unless the time frame is extended 7 by a voluntary agreement with the applicant. 8 Section 25. Basis for approving authority determination. 9 (a) The approving authority shall grant approval of an 10 affordable housing development unless facts produced in the 11 record at the public hearing or otherwise of record 12 demonstrate that the development as proposed: 13 (1) would have significant adverse effects on the 14 environment; or 15 (2) would significantly conflict with planning 16 goals and policies specified in the local government's 17 comprehensive plan, provided they are not designed to, or 18 do not have the effect of, rendering infeasible the 19 development of affordable housing while permitting other 20 forms of housing. 21 (b) The approving authority may condition the approval 22 of the affordable housing development on compliance with 23 local government development standards, contained in an 24 ordinance or regulation, that are necessary for the 25 protection of the health and safety of residents of the 26 proposed development or of the residents of the local 27 government, or that promote better site and building design 28 in relation to the area surrounding the proposed development, 29 provided that any ordinances or regulations must be equally 30 applicable to both affordable housing developments and other 31 developments, and provided that any conditions do not render 32 the affordable housing development infeasible. The approving 33 authority shall waive local government development standards -6- LRB093 10665 RCE 11004 b 1 when their application would render the provision of 2 affordable housing infeasible, unless a waiver would cause 3 the affordable housing development to have significant 4 adverse effects on the environment. 5 (c) For purposes of this Act, a requirement, condition, 6 ordinance, or regulation is considered to render an 7 affordable housing development proposed by an affordable 8 housing developer that is a nonprofit entity, limited equity 9 cooperative, or public agency infeasible when it renders the 10 development unable to proceed in accordance with program 11 requirements of any public program for the production of 12 affordable housing in view of the amount of subsidy 13 realistically available. For an affordable housing 14 development proposed by an affordable housing developer that 15 is a private for-profit individual, firm, corporation, or 16 other entity, the imposition of unnecessary cost generating 17 requirements, either alone or in combination with other 18 requirements, is considered to render an affordable housing 19 development infeasible when it reduces the likely return on 20 the development to a point where a reasonably prudent 21 developer would not proceed. 22 Section 30. Appeal to State Housing Appeals Board. 23 (a) An affordable housing developer whose application is 24 either denied or approved with conditions that in his or her 25 judgment render the provision of affordable housing 26 infeasible may, within 45 days after the decision, appeal to 27 the State Housing Appeals Board challenging that decision. 28 The Board shall render a decision on the application within 29 120 days after the appeal is filed. In its determination of 30 an appeal, the Board shall conduct a de novo review of the 31 matter. 32 (b) In rendering its decision, the Board shall consider 33 the facts and whether the approving authority correctly -7- LRB093 10665 RCE 11004 b 1 applied the standards set forth in Section 25. In any 2 proceeding before the Board, the approving authority bears 3 the burden of demonstrating that it correctly applied the 4 standards set forth in Section 25 in denying or conditionally 5 approving the application for an affordable housing 6 development. 7 (c) The Board may affirm, reverse, or modify the 8 conditions of, or add conditions to, a decision made by the 9 approving authority. The decision of the Board constitutes an 10 order directed to the approving authority and is binding on 11 the local government, which shall forthwith issue any and all 12 necessary permits and approvals consistent with the 13 determination of the Board. 14 (d) The appellate court has the exclusive jurisdiction 15 to review decisions of the Board. 16 Section 35. Enforcement. The order of the Board may be 17 enforced by the Board or by the applicant in an action 18 brought in the circuit court. 19 Section 40. Nonresidential development as part of an 20 affordable housing development. 21 (a) An applicant for development of property that will 22 be principally devoted to nonresidential uses in a 23 nonresidential zoning district has the status of an 24 affordable housing developer for the purposes of this Act 25 when the applicant proposes that no less than 20% of the area 26 of the development or 20% of the square footage of the 27 development be devoted to affordable housing, except that the 28 applicant bears the burden of proof of demonstrating that the 29 purposes of a nonresidential zoning district will not be 30 impaired by the construction of housing in that zoning 31 district and that the health, safety, and welfare of the 32 residents of the affordable housing will not be adversely -8- LRB093 10665 RCE 11004 b 1 affected by nonresidential uses either in existence or 2 permitted in that zoning district. 3 (b) For purposes of subsection (a), the square footage 4 of the residential portion of the development shall be 5 measured by the interior floor area of dwelling units, 6 excluding that portion that is unheated. Square footage of 7 the nonresidential portion shall be calculated according to 8 the gross leasable area. 9 Section 45. Overconcentration of affordable housing. In 10 order to prevent the drastic alteration of a community's 11 character through the exercise of the rights conferred upon 12 affordable housing developers by this Act, the requirements 13 to approve affordable housing developments by a local 14 government as specified in this Act cease when: 15 (1) the local government fulfills the requirements 16 to become an exempt local government; or 17 (2) the number of units of affordable housing 18 approved and built pursuant to this Act exceeds 5,000 19 dwelling units over a period of 5 years. 20 Section 50. Housing Appeals Board. 21 (a) A Housing Appeals Board is created consisting of 7 22 members appointed by the Governor as follows: 23 (1) a circuit judge, who shall act as chairperson; 24 (2) a local zoning board member; 25 (3) a regional planning board member; 26 (4) a city council member; 27 (5) a county board member; 28 (6) an affordable housing developer; and 29 (7) an affordable housing advocate. 30 In addition, the Chairman of the Illinois Housing 31 Development Authority, ex officio, shall serve as a 32 non-voting member. -9- LRB093 10665 RCE 11004 b 1 (b) Initial terms of 4 members designated by the 2 Governor shall be for 2 years. Initial terms of 3 members 3 designated by the Governor shall be for one year. Thereafter, 4 members shall be appointed for terms of 2 years. A member 5 shall receive no compensation for his or her services, but 6 shall be reimbursed by the State for all reasonable expenses 7 actually and necessarily incurred in the performance of his 8 or her official duties. The board shall hear all petitions 9 for review filed under this Act and shall conduct all 10 hearings in accordance with the rules and regulations 11 established by the chairperson. The Illinois Housing 12 Development Authority shall provide space and clerical and 13 other assistance that the Board may require.