Affordable housing in Pittsburgh: The importance of framing a legally sound inclusionary zoning proposal

In May 2016, the City of Pittsburgh’s Affordable Housing Task Force prepared a report recommending several affordable housing policies to the Mayor’s Office. The task force noted the “compelling need to address the changing landscape of housing affordability in Pittsburgh.” Of the housing proposals, mandatory inclusionary zoning sticks out as potentially one of the most effective policies. However, the legality of inclusionary zoning in Pittsburgh depends on how the policy and its goals are framed at the outset.

What is the policy of inclusionary zoning?

Inclusionary zoning is defined as any mechanism under local law that requires or encourages private-sector developers to construct affordable units. The task force’s proposal has all the hallmarks for the potential enactment of a mandatory inclusionary zoning ordinance.

The report notes that a density bonus should be one of several compliance mechanisms, which gives developers “height and density in return for the provision of affordable housing.” The task force additionally recommends a citywide set-aside scheme for projects that exceed 25 units. This would require a developer to “set aside” a percentage of low-cost units on a new development if the developer receives “direct public subsidy.”

The report also proposes the creation of an affordable housing opportunity overlay zone, where all new development would be required to include 5 percent low-cost units and a minimum of 15 to 20 percent low-cost units for developers benefitting from the public subsidy. The goal being to ostensibly mitigate rising rents and displacement by targeting neighborhoods with highest return on investment. Alternatively, if a developer is unable or unwilling to provide any low-cost housing, then the developer could choose to pay a fee or agree to build off-site housing elsewhere in the city or improve existing, albeit substandard, housing.

As for affordability, the task force suggests the policy should target household incomes that fall below or at 50 percent area median income for renters and 80 percent for homeowners.

Most inclusionary zoning ordinances require developers to comply with one or more of the abovementioned conditions in exchange for a building or land-use permit.

But the legal terrain for inclusionary zoning is an uncharted area of housing policy in Pennsylvania. Let’s unpack some of the legal implications…

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