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Theory and Practice of Affordable Housing Law
Roberta
Rubin
Call the bookstore (617/373-2286) or
Gnomon Copy (617/536-4600) to determine if the course materials are available
in advance.
I.
Introduction
Class 1: Why affordable
housing? What are the goals to be
achieved? What are the rationales for
and against federal housing legislation?
Brief history of affordable housing legislation. (Lecture & discussion.)
Casebook: 3-40 (overview, excerpts from various commentators)(required), 400-424 (recommended)
TWEN: History of Federal Housing Programs; Joint Center for Housing Studies 2003 report, pp. 25-29 and Tables A-1, A-5, A-9 and A-10
Class 2: The case for a
right to housing. On what basis
could it be argued that there exists a constitutional right to housing? Examination of Supreme Court Valtierra and Lindsey decisions, brief look at NY &NJ state court decisions.
Casebook: pp. 40-72 (required)
TWEN: Callahan v. Carey (required)
Supplement: Dissent in Valtierra case and dissent in Lindsey
case (required); excerpts from
and Maticka (optional)
Class 3: National Housing
Act of 1934 and
.
Casebook: pp. 179-183, 233-239 (required)
Supplement: Excerpts from National Housing Act of 1934; excerpts from original 1937 Housing Act
Vale pp. 128-158 (optional), 168-201 (strongly recommended), 201-229 (recommended)
Class 4: Developments in federal housing policy 1941 – 1961: “Housing for All” and Urban Renewal. Review of legislative developments through 1961, with a focus on shifting federal policies. Analysis of interplay between legislative and executive braches in implementation of housing policy.
Casebook pp. 183-191 (Cuyohoga); 442-454 (Theoretical Framework for Urban Redevelopment,
with Poletown) (required)
TWEN: Orlebeke, “The Evolution of Housing Policy, 1949 to 1999”, Housing Policy Debate, pp. 489-494 (required); Moses, “Slums and City Planning” (recommended)
Supplement: Excerpts from United States Housing Acts of 1949, 1954, 1961 (required); Franklin Roosevelt 1944 State of the Union Message (recommended)
Vale: pp. 230-256, 271-285 (recommended)
Class 5: Civil Rights in Housing (guest
lecture)
Casebook: pp. 658-656 (Starrett City) (required); pp. 546-553, 579-584, 628-634, 715-718 (recommended)
TWEN: Excerpts from federal regulations (24 CFR 1.4) and statutes (42 U.S.C. §§ 3604, 3605
and 3606 (required); Hirsch, “’Searching for a Sound Negro Policy’: A Racial Agenda for the Housing Acts of 1949 and 1954” (highly recommended); Alexander v. State of Oklahoma (highly recommended)
Supplement: Excerpts from Cleburne Living Center (required) and In Re Adoption Of The 2003 Low Income Housing Tax Credit Qualified Allocation Plan (required)
Class 6: Fair
Housing: Federal Affirmative Duty to
Promote Fair Housing; The Limits of Fair Housing Policy: “Managed Occupancy” and Integration
Maintenance. What are the parameters of the affirmative obligation imposed on the
Federal government to promote fair housing objectives? What is the role of the courts in enforcing
this obligation? How does – or should –
the law distinguish between inclusion of one group and exclusion of another? What, if any measures, to maintain racial
balance are permissible?
Casebook: pp. 562-579 (N.A.A.C.P.,
Class 7: Occupancy of Public Housing: Legal and Policy Changes, 1969-1983. Review of major legislative changes (Brooke Amendment, federal preferences) and impact on the character of public housing. What were the intended and unintended consequences of these changes in federal housing law? How did legislative changes and implementing regulations create new individual rights?
Casebook: pp. 78-80 (“Tenant-based Public
Housing Subsidies”; Mandelker excerpt; N&Q 1 & 2), 90-92 (Mandelker
excerpt and N&Q 1 – 5), 104-109 (N.A.A.C.P.,
Supplement: Brooke Amendment; amendments to 1937 Act imposing Federal preferences (required)
Vale: pp. 194-213, 256-266, 290-297, 322-325, 329-332 (recommended)
Class 8: Getting In the Door: Tenant
Selection and Admissions to Public Housing and Federally Assisted Private
Housing. How did the courts
interpret the obligations of public and private landlords in response to equal
protection claims by prospective residents?
What other factors may have influenced judicial actions? Examination of interplay between judicial
decisions, federal rulemaking and actual tenant selection practices.
Casebook: pp. 359-372 (Holmes,
TWEN: Excerpts from HUD regulations
re admission to public housing, 24 CFR Part 960 (Subpart A §§ 960.101-960.103
and Subpart B, §§ 960.200-960.208) (required)
Supplement: Sample Admissions and Occupancy Policy, Parts 1 and 2 (pp. 1-25) (required)
Written Assignment: Memorandum analyzing defects in draft Metro City Admissions and Occupancy Policy (due by Class 12, July 8). See Course Assignments description.
Class 9: Substantive Due
Process and Evictions from Federally Assisted Housing. Examination of statutory and regulatory
provisions and judicial interpretation.
How did the courts respond to tenants’ due process claims in eviction
actions? On what basis did the courts
evaluate such claims in the context of privately owned assisted housing?
Casebook: pp. 372- 380, 390 – 397 (Escalera, Joy v. Daniels) (required)
TWEN: Excerpts from HUD regulations re leases and grievance procedures, 24 CFR Part 966 (Subpart A, §§ 966.4(l), 966.6, and Subpart B, §§ 966.50-557) (required)
Supplement: Sample Admissions & Occupancy Policy, Parts 3 and 4 (pp. 26-31) (required)
Class 10: The
Rise and Fall of Federally Subsidized Private Production Programs; Tenant-Based
Subsidies – the wave of the future? Lecture:
legislative changes in the 1960s; Nixon Moratorium; historical context
for 1974 and 1983 legislation; review of financial models – cost of subsidy
programs. Discussion: matrix of subsidy alternatives – rationales
for and against movement toward tenant-based assistance
Casebook: pp. 149 -166, 170-78, 209-212, 216-220; Simmons 221 – 224 (required)
TWEN: Orlebeke, pp. 495-505, 515-517 (required); Winnick, “The Triumph of Housing Allowance Programs” pp 110-119 (required)
Supplement: brief excerpts from 1968 Act and 1983 legislation; excerpts from Comer v. Cisneros (required)
Handout: Exercise: Rent calculations – Section 236 and Section 8 programs (required)
Class 11: The Block Grant Alternative: Community Development Programs (HOME/CDBG). Discussion:
pros and cons of block grant programs – flexibility to meet local needs
v. lack of standards, potential for discrimination. Examination of legislative requirement that
benefits be targeted toward the poor, judicial interpretations in response to
legal challenges. How could changes to structure of block grant program
increase or diminish likelihood of discriminatory action as illustrated in
cases?
Casebook: pp. 454-468, 479-489 (National Wildlife Federation v. Marsh) (required)
TWEN: Orlebeke, pp. 505-510 (required)
Supplement: Excerpts
from James v. City of
Class 12: LIHTC basics: how the statute mandates calculation of credit for affordable housing project. In-depth examination of mechanics of tax incentives for private investment in affordable housing. Focus on defined terms as key to understanding complex statute. Illustration through case study.
Casebook: pp. 247-257 (required)
TWEN: Section 42 of the Internal Revenue Code (required: subsections 42(a) – (c), 42(d)(1), 42(d)(2)(A) – (C), 42(d)(5), 42(e), 42(f)(1), 42(g)(1) & (2), 42(i)(1) – (5),
Supplement: Stearns, Low-Income Housing Tax Credit: A Poor Solution to the Housing Crisis, 6 Yale Law & Policy Review, pp. 203-215 (recommended); A Note on Basis (required)
Handout: Exercise for class: locating defined terms in Section 42 (worksheet) (required)
TWEN: Review portions of Section 42 listed above (required)
Supplement:
Handout: Exercise for class: worksheet re federally financed transactions (required)
Class 14: Private
Investment Revisited: The Equity
Investor and Affordable Housing.
Examination of partnership agreement as mechanism to
translate federal tax incentives into “real world” business relationships and
funding for housing development.
Discussion will focus on business and financial implications of Section
42 provisions as reflected in deal documentation and pro formas.
Supplement: Excerpts
from LLC operating agreement (required);
Class 15: Interplay
with Laws re Tax-Exempt Organizations. Discussion will focus on role of non-profits in
housing development, particularly issues relating to IRS treatment of
non-profit guaranties in LIHTC transactions.
Assignment: Preparation for Mock Negotiation. Review case study and partnership agreement excerpts. Group to divide in half, with one half to represent the interests of the developer and the other half to represent the interests of the tax credit investor. Identify provisions of partnership agreement that are likely to be the subject of negotiation between the developer and the tax credit investor, and prepare arguments for each party’s position (estimated time for class presentation: 10-20 minutes each)
Casebook: pp. 266 – 277 (Plumstead) (required)
Supplement: Excerpts from Housing Pioneers (required); excerpts from IRS internal guidance re non-profit guaranties (required); Rubin & Klein article re non-profit guaranties (recommended)
Class 16: Qualified Action Plan: Implementation
of policy goals at the state level. Following
student-led mock negotiation, discussion will turn to policy issues raised by
TWEN: 2004
Exercise: In preparation for class, each student should select 2 or 3 policy issues raised by QAP, be prepared to discuss how QAP could or should be modified to effect policy change.
Written Assignments*: (1) Prepare memorandum to non-profit client analyzing relative merits of two projects based on scoring under QAP. See Course Assignments description.
(2) Analyze rent restrictions applicable to units in mixed finance project. See Course Assignments description.
* Both assignments will be due on the last day of the exam period.
Class 17: Quality Housing
and Work Responsibility Act of 1998:
Getting Tough. Examination of key elements
of major public housing reform legislation; discussion of legal and policy
issues associated with controlling crime in public housing.
Casebook: pp.
380-389 (Pratt v.
TWEN: Center for Budget and Policy Priorities, “Housing and Welfare Reform: Some Background Information” (highly recommended)
Supplement: Excerpts from 1937 Act as amended by QHWRA (required); excerpts from article re “Quality Housing and Work Responsibility Act of 1998: Management-Related Provisions” (required); Rucker (required).
Class 18: Meshing public and private interests: regulatory structure & contractual
arrangements.
Analysis of financial & legal structure of mixed-finance
development, as reflected in regulatory and operating agreement. Contrasting “plain vanilla” R&O in
casebook with excerpts in supplement, focusing on operating subsidy formulae,
transformation provisions. Discussion re
HUD policymaking through rulemaking authority.
Casebook: pp. 199 – 209 (required)
Supplement: Summary of legal & regulatory issues in HOPE VI/mixed finance projects (required); selected provisions from two Regulatory and Operating Agreements (required)
Class 19: Residents and mixed-finance: relocation and right of return; impact of
consent decrees; admissions and occupancy revisited. Discussion will focus on legal
and practical issues for public housing residents impacted by revitalization
activities.
Casebook: pp. 521-524,
532-533; 539-544; 585-595 (Gautreaux)
(required)
TWEN: GAO report on HOPE VI, pp. 1-35 (highly recommended background reading)
Supplement: Excerpt
from Sanders consent decree
(required); review Metro City Admissions & Occupancy Policy; Memorandum of
Understanding between residents and housing authority (required)
Class 20: Exclusionary Zoning. How do
municipalities use the zoning power to exclude affordable housing in general
and members of protected classes in particular?
What standards have the courts applied in evaluating challenges to
exclusionary zoning?
Casebook: pp. 554-560 (Arlington I) (required); 600-616 (
Supplement: excerpts
from Arlington II and
Class 21: Inclusionary Zoning and Other Incentives for Development. Examination
of judicial and legislative attempts to combat local exclusionary zoning.
Casebook: pp. 616-622 (Salsich & Tryniekci, “Inclusionary Zoning”; Note on zoning override)
TWEN: Northeastern CURP report, Building on our Heritage: A Housing Strategy for Smart Growth and Economic Development (required: Executive Summary, pp. 1-6; Solving the Affordability Crisis, pp. 19 – 21. Recommended: Report and Recommendations, pp. 6-24); Inclusionary Zoning: Lessons Learned in Massachusetts (required: pp. 1-17; recommended: pp. 18-28).
Supplement: Excerpts from Mt.
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The written assignments described above (under Class 16) will be due the last day of exam week. There will be no final exam.