Incentive Zoning by

Local Communities

The US. Supreme Court decision in Nollan v. California Coastal Commission, 107 S. Ct. 3141 (1987), may adversely affect the use of incentive zoning by local communities. In that case, the Court held that the California Coastal Commission could not condition its grant of permission to rebuild a house on the homeowners' transfer to the public of an easement across their beachfront property. The Court expressed its concern that, when the actual conveyance of property is made a condition to the lifting of a land use restriction, there is a heightened risk that the governmental entity involved is attempting to avoid the compensation requirement. There is a taking of property unless there is a nexus between the condition and the original purpose of the building restriction. In this instance, imposing the permit condition does not reduce any obstacles to viewing the beach created by the house, lower any "psychological barrier" to using the public beaches, or help to remedy any additional congestion on the beaches caused by construction of the new house.

"There appears to be no precedent for an ordinance which excludes any of an owner's relatives from the group of persons who may occupy his residence on a permanent basis." Id. at 494, 520 (Stevens, J., concurring). In the absence of accessible housing, a family that includes a handicapped member may be either forced to look elsewhere for housing or forced to break up the family by placing the disabled family member in an accessible facility restricted to handicapped persons. Accessible housing keeps families together.

Further, barrier-free design benefits all segments of society, including people who generally consider themselves able-bodied. Most of us, at some times in our lives, benefit directly from barrier-free design (e.g., elderly persons, parents with small children, shoppers burdened with packages, and

Physically disabled persons have long suffered from environmental barriers that restrict not only their choice of housing but also their general mobility and their educational and employment opportunities. All of these factors in the past have severely limited disabled persons' chances to enjoy full and useful lives. Decisionmakers have become increasingly aware that the primary barriers faced by physically handicapped persons are man-made and can be eliminated. In response, legislation at both the federal and state levels has been passed in recent years to assist physically disabled persons in becoming full and productive members of society. For example, in 1968 Congress passed the Architectural Barriers Act of 1968, Pub. L. No. 90-480, 82 Stat. 718 (1968) (current version at 42 U.S.C. §§ 4151-4157), to ensure access to federally funded or leased buildings to those individuals with mobility, visual, and hearing impairments. In 1973, Congress passed section 504 of the Rehabilitation Act of 1973, Pub. L. No. 93-112, § 504, 87 Stat. 394 (1973) (current version at 29 U.S.C. § 794), which prohibits discrimination against handicapped individuals by recipients of federally financed assistance. In addition, every state has passed some type of legislation to eliminate architectural barriers in state-owned and operated buildings. These statutes indicate a recognition of the importance of barrier-free design.

Progress has been made: ramps have replaced stairways, and talking elevators have appeared in many modern designs. Yet it is indeed ironic that, while an individual confined to a wheelchair may now have a right to receive an education at a barrier-free public university, work in a barrier-free office building, and use barrier-free public transportation to travel to and from school or work, he or she has little opportunity to go home afterwards to a barrier-free private residence.

The defendant city is correct to note that most of the plaintiffs in the Mt. Laurel line of cases were individuals with low or moderate incomes. However, the fundamental lesson of Mt. Laurel I is that governments have a duty to assure the availability of adequate housing to all members of society,

5. One writer has captured the problem with striking images: A mother pushing a carriage...a father struggling with Christmas presents... a tight end hobbling on a sprained ankle...a pregnant woman... an arthritic elderly man ... a blind attorney... a deaf teacher... a paraplegic editor... a young child.

A flight of stairs... a narrow doorway... a small bathroom shoulder-height light switches... eye-level telephones... narrow theater aisles... auditory fire alarms ... highly polished floors ... tight parking spaces... printed directions and maps... heat-sensitive elevator call buttons... eye-level cabinets.

F. BOWE, Handicapping America 73 (1978).

6. See generally, Andersen, Private Housing for the Disabled: A Suggested Agenda, 56 NOTRE DAME L. REV. 247-49 (1980).

7. For a summary of state legislation, see L. ROTHSTEIN, supra note 1, at section 5.13.

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particularly disadvantaged groups. 67 N.J. at 177, 336 A.2d at 727. We see no logic in holding that economically disadvantaged persons possess any stronger need for shelter than physically disabled ones. We hold that a municipality has a duty to assure the availability of its fair share of housing for all segments of society. When the effect of a local land use scheme is to deny to a distinct segment of society the ability to reside in a particular community, that land use scheme is inconsistent with the general welfare and therefore an unconstitutional exercise of the municipality's police power.

Two aspects of the standard we adopt merit elaboration. The defendant city argues that Access has offered no evidence that any of the city's public officials possessed any intent to prevent handicapped persons from locating within their community. However, because of the difficulties of establishing intention (or purpose) to exclude persons," we follow other jurisdictions in requiring plaintiffs only to establish discriminatory effect. See, e.g., Mt. Laurel II, 92 N.J. at 220-221, 456 A.2d. at 421; National Land & Inv. Co. v. Kohn, 419 Pa. 504, 215 A.2d. 597 (1965) (exclusionary impact of four-acre minimum lot requirement sufficient to invalidate zoning ordinance). The city also notes that the land use scheme does not prohibit the construction of barrier-free housing. A developer who complies with all other regulations is free to construct accessible housing at any time. However, this very case illustrates the inadequacy of such an approach to housing needs-there are virtually no accessible homes in Anytown. This court cannot build accessible houses, but neither can we pretend that the mere absence of overt restrictions on this type of housing is enough. We hold that in order to satisfy its constitutional obligation a municipality must in fact make available a fair share of accessible housing.

IV. The Remedy

We are reluctant to involve our trial courts in continuing supervision of local land use plans but, until our legislature acts to provide a statewide remedy 10 or until our local communities act to change the present situation, we have no choice. The New Jersey Supreme Court offers some precedent for our actions, most recently and comprehensively in Southern Burlington County NAACP v. Township of Mt. Laurel (Mt. Laurel II), 92 N.J. 158, 456 A.2d. 390 (1983)." Each community in our state

8. Indeed, in part because of the housing, transportation, and employment barriers faced by physically disabled persons, they are often also poor. Studies have suggested that there is a direct relationship between handicapping conditions and such factors as age, race, education, and income. See L. ROTHSTEIN, supra note 1, at section 1.05 (citing DeJong & Lifchez, Physical Disability and Public Policy, 248 Sci. Am. 40 (June 1983)).

9. See generally Village of Arlington Heights v. Metropolitan Hous. Dev. Corp., 558 E2d 1283, 1290 (7th Cir. 1977) (Clearinghouse No. 15,716). For a recent discussion of discrimination, see Lawrence, The Id, the Ego, and Equal Protection: Reckoning with Unconscious Racism, 39 STAN. L. Rev. 317 (1987).

10. A Model Act has been available to legislatures for several years. See ABA Comm. on the Mentally Disabled, Developmental Disabilities State Legislative Project, Eliminating Environmental Barriers (1979) (hereinafter ABA Model Act]. For a brief analysis of the legislation, see Andersen, supra note 6, at 261-65.

11. "[T]he courts... have found that the scope of a particular constitu(footnote 11 continues)

should be able to fashion its own remedy to the problem of inadequate availability of accessible housing. Two elements, however, have statewide application: determining "fair share" and defining "accessibility."

A. Determining a Fair Share

In defining the "fair share" of accessible housing that any community is required to have, our trial courts should begin by using data from the U.S. Bureau of the Census. In most cases, a "fair share" of accessible housing would be a number arrived at under the following formula: a/b=c/d, in which "a" means the number of persons who could be housed in accessible housing, "b" means the total number of persons in the community in question, "c" means the number of handicapped persons in the region, and “d” means the total number of persons in the region. However, not all communities, particularly ones already substantially developed, will be able to meet the fair share set by this formula, at least in the short term. In those places, the formula should serve as a goal to be reached as older housing is replaced by new, accessible housing. 12 While each case will necessarily have to be resolved on its own facts, we hope to avoid some of the costs of litigation by giving great deference to trial court judgments

footnote 11 continued

tional obligation, and the resistance to its vindication are such as to require much more active judicial involvement in the remedial stage of litigation than is conventional if the Constitutional obligation is satisfied." Mt. Laurel II, 92 N.J. 289 n.43, 456 A.2d at 457 n.43. Courts have become actively involved in fashioning remedies in several other areas of law, including school segregation, Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. I (1971) (Clearinghouse No. 16,632); and reapportionment, Reynolds v. Simms, 377 U.S. 533 (1964). This type of active judicial involvement has been approved by other courts in the land use context. See Berenson v. New Castle, 67 A.D.2d 506, 415 N.Y.S.2d 669 (1979) (court may properly direct the legislative authority to rezone plaintiff's land); Lynch v. Oklahoma City, 629 P.2d 1989 (Okla. Ct. App. 1981) (trial court is permitted to rezone property over objection of city council). In support of this type of remedy to negate exclusionary zoning practices, one commentator has stated that, rather than being a hopelessly vague and imprecise concept, the fair share principle can be consistently and equitably applied and can therefore guide judicial supervision of local zoning plans as well as provide a workable standard for local planning officials... .” Developments in the Law-Zoning, 91 HARV. L. Rev. 1427, 1640-41 (1978).

12. For example, New Jersey has partially exempted fully developed, single-family residential" communities from the Mt. Laurel "fair share" obligation. See Fobe Ass'n v. Demarest, 74 N.J. 519, 379 A.2d 31 (1977) (Clearinghouse No. 21,177); Pascack Ass'n, Ltd. v. Mayor & Council of the Township of Washington, 74 N.J. 470, 379 A.2d 6 (1977). Nonetheless, courts there require that every municipality provide a realistic opportunity for decent housing for at least some part of its resident poor who now occupy dilapidated housing." Mt. Laurel II, 92 N.J. at 214, 456 A.2d at 418.

By analogy, even the few fully developed communities in our state have an obligation to provide an opportunity for their disabled populations to live in accessible housing. As noted in the text, a developed community can move toward acquiring its fair share by making replacement housing accessible. This approach also makes sense because it is cheaper to achieve accessibility during initial construction than to rehabilitate existing buildings. See HUD, OFFICE OF POLICY DEVELOPMENT AND RESEARCH, THE ESTIMATED COST OF ACCESSIble Buildings 141 (1979).

Multifamily Housing Complex

for the Disabled

The nation's first multifamily for-sale housing complex for the disabled has opened in Naperville, Illinois, a suburb of Chicago located west of the city. This complex, Katharine Manor, is a $3 million, 32-unit development that was designed especially for the disabled and their families. As of July 5, 1987, 8 of the 32 one-, two-, and three-bedroom units had been sold, 12 had been rented, and applications were being reviewed for the 12 remaining units. The project's nonprofit developer, Illinois Independent Living Center, hopes the project will serve as an impetus for such housing across the country. Katharine Manor's construction costs were about $55 per square foot (the average cost for housing in Naperville), even though alterations were required to accommodate the handicapped. The developers note that multifamily housing provides economies of scale that are not available in single-family housing.

establishing the fair share of any particular community." B. Defining "Accessible"

A second requirement of our standard is that some housing must be "accessible." For purposes of meeting the constitutional obligation we recognize today, "accessible housing" is that which meets the design standards of ANSI standard A117.1-1986, as revised. 14 We refer to the ANSI standard for a number of reasons. First, all persons interested in the question we address today need a standard to refer to in order to translate our decision to the physical world. Second, the standard offers a comprehensive, modern approach to design. Finally, the approach taken by the ANSI standard has been endorsed by an American Bar Association project that has carefully considered these issues. 15

The ANSI approach is not one of mandated "handicapped housing," but rather of adaptable housing. Such an approach recognizes that "accessible" means different things to different people. Adaptable design requires initial designs that can later be modified to meet the particular needs of disabled occupants. Examples of "adaptable" design include structurally reinforced walls so that grab-bars can be added later1 and removable

13. For examples of the sorts of issues we leave to trial court discretion, see Mt. Laurel I, 67 N.J. 151, 215, 336 A.2d 713, 747 (Pashman, J., concurring) (trial court should proceed (1) to identify relevant region, (2) to determine present and future housing needs, (3) to allocate needs among various municipalities, and (4) to shape a suitable remedial order). In Mt. Laurel II, the court discusses the problems faced by the New Jersey courts since the first opinion. See Mt. Laurel II, 456 A.2d at 413.

14. HUD, NATIONAL EASTER SEAL SOC'Y, PRESIDENT'S COMM. ON EMPLOYMENT OF THE HANDICAPPED, AMERICAN NATIONAL STANDARD FOR BUILDINGS AND FACILITIES-PROVIDING ACCESSIBILITY AND USABILITY FOR PHYSICALLY HANDICAPPED PEOPLE (1986) [hereinafter ANSI A117.1-1986].

15. See ABA Model Act, supra note 10.

16. ANSI A117.1-1986, supra note 14, at 65, Table 4.

below-sink cabinets to facilitate easier movement for wheelchairbound individuals. An adaptable home is also likely to be safer and more convenient, even for able-bodied persons.17 Such a home should thus be attractive to buyers or renters not presently needing all accessibility features, since it allows the occupier to avoid the cost of features not presently needed while preserving the flexibility to make any changes that become necessary.

V. Techniques for Achieving Accessible Housing

Communities in our state have broad discretion to choose among a variety of means to achieve an adequate supply of accessible housing. We briefly comment here upon three methods that the plaintiffs have suggested could be implemented by local communities seeking to meet the obligations we establish today. Communities might adopt "incentive zoning" techniques, establish mandatory set-aside requirements for developers, or establish a community housing trust fund. By noting these approaches, we do not mean to preclude communities from finding their own solutions to the difficult problems we face.

Incentive zoning is a tool that has been used by local communities to encourage such goals as low-income housing, public open spaces, and the preservation of historic buildings. 18 Typically, a developer is allowed a higher density allowance or some other type of set bonus for including within a new development a certain amount of the use to be encouraged. While under this system a developer is free to develop a project without the encouraged use, there can be strong financial incentives to use the system, depending upon the bonuses given. For example, a developer may be held to less restrictive lot size and set-back requirements, allowed a reduction in required site amenities, or be guaranteed a shortened approval procedure for building a certain percentage of accessible homes. However, because of the voluntary nature of this type of ordinance, exclusive reliance by a municipality on such a device may not satisfy a municipality's obligation.

Perhaps the clearest way for a municipality to meet its obligation is to establish a mandatory set-aside for new developments. Under this type of ordinance, a developer would be required to construct a certain percentage of all new housing to be accessible. While the actual percentage may vary, we note that the ABA Model Act suggests 10 percent as a minimum requirement.

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A final suggested option is establishing a community housing trust fund.20 Typically, such a fund would receive payments from developers in lieu of actually constructing the required units. Proceeds of the trust fund are usually administered

17. See Andersen, supra note 6, at 260.

18. Incentive zoning has been described as "a carrot-and-stick technique which employs administrative concessions to induce needed construction or desired features thereof." R. Anderson, AMERICAN LAW OF ZONING § 9.23 (1986). It has been employed by various municipalities to encourage the construction or preservation of such things as historic landmarks, public plazas, deeper setbacks, wider sidewalks, and off-street parking. See generally Chicago Plan: Incentive Zoning and the Preservation of Urban Landmarks, 85 HARV. L. REV. 574 (1972).

19. ABA Model Act, supra note 10, at section 2(b). 20. See Tegeler, Developer Payments and Downtown Housing Trust Funds, 18 Clearinghouse Rev. 679 (1984).