When Mayor Ed Gainey signed a bill last month to expand inclusionary zoning – a tool to create more affordable housing – he hosteda ceremony in the Mayor’s conference room in the City-County Building, surrounded by housing activists who have been fighting for years for more affordable housing in Pittsburgh.
"We want to make sure our neighbors know their neighbors," Gainey said. "This is what it means when we say, 'creating a city for all.'"
Increasing the amount of affordable housing in Pittsburgh was a major campaign theme for Gainey when he ran for office last year, and he pledged to expand inclusionary zoning.
But just days after the ceremonial signing, the legislation – which requires larger housing developments in Polish Hill and Bloomfield to reserve 10% of units for people with low or modest incomes – landed in federal court.
A lawsuit filed by the Builders Association of Metropolitan Pittsburgh seeks to strike down the city’s new law, arguing, “the City improperly seeks to shift the burden to fund low- and moderate-income housing from the general public to a select population, namely residential real estate developers."
The lawsuit adds: "The imposition of this burden on BAMP members constitutes an improper taking of private property without just compensation, in violation of the Taking Clause of the Fifth Amendment.”
The city has yet to file a response to the Builders Association's lawsuit, and has asked the court for an extension to do so.
Affordable housing advocates and other supporters of the new ordinance say the inclusionary zoning it expands is well-established law. They say they are confident the ordinance will ultimately be upheld.
But the lawsuit marks the third time in recent years that BAMP and an affiliated organization – the Apartment Association of Metropolitan Pittsburgh, or AAMP – have filed suit against the city over housing quality or affordability initiatives.
The Apartment Association fought for years a 2015 effort by the city to forbid landlords from discriminating against tenants’ source of income – meaning that landlords wouldn’t have been allowed to refuse subsidized housing vouchers, commonly known as Section 8 vouchers.
In that case, the city argued that thousands of low-income renters who received vouchers to help pay for housing weren’t able to use them, because few landlords were willing to accept them. But the Apartment Association successfully argued that forcing landlords to accept the vouchers was too burdensome, and that the city did not have the right to impose additional bureaucracy on their businesses.
That legislation was never enforced, andafter a yearslong court battle,the state Supreme Court ruled in favor of the Apartment Association last year.
In addition, the Apartment Association is one of several groups that have been litigating the city’s various proposals to require rental housing to be registered and inspected for more than a decade.
A version of Pittsburgh’s ordinance had been set to go into effect May 29, but last month an Allegheny County Common Pleas judge ordered a hold on inspections.
The legal cases have highlighted the limits of municipal power — and the uphill battle the Gainey administration will face — to rapidly increase Pittsburgh’s supply of affordable housing, despite a growing crisis of housing affordability.
A city task force in 2016 found Pittsburgh was short thousands of affordable units. Advocates say the problem has only worsened since then.
Frequent opposition
The Builders Association, a nonprofit trade group, was originally chartered in 1938, and the organization touts itself as one of the oldest builders associations in the country.
“The founders' primary reason for starting the organization was to unify builders against the threat of government control of the housing industry,” according to a history on the group’s website.
In court filings, it stated it has “approximately 400 members in Pittsburgh and Western Pennsylvania, including builders and developers who own property within the areas of Pittsburgh … as well as developers who plan to acquire such property.”
Builders Association members formed the Apartment Association in 1974, according to a history on the group’s website. It grew out of “concerns about a revision of Pennsylvania's Landlord Tenant Act and the fear of government-imposed rent control,” according to its website.
The affiliated groups have the same address, phone number, and share an executive director. An email to the executive director from WESA was not returned.
Duquesne University law professor Bruce Ledewitz said while each of the organizations’ cases against the city’s affordable housing efforts is different, the city is generally at a disadvantage in these cases because of what state law allows.
"Our local governments can only regulate where Harrisburg lets them," he said. The state’s constitution limits municipalities’ ability to regulate businesses.
Gainey’s office said affordable housing remains a priority. In a statement, the mayor's office said it is committed to defending both rental registration and the inclusionary zoning legislation in court.
"Affordable housing is essential to creating inclusive communities, which is why it is such a big priority for Mayor Gainey," press secretary Maria Montaño said in a statement.
The mayor’s office also pointed to affordable housing commitments in the deal it reached with developer Walnut Capital in the Oakland Crossings project, as well as an upcoming announcement about affordable housing downtown.
The legal maneuverings have left local housing activists frustrated, but they say they are undeterred.
“[The Builders Association] filed this legal challenge on the same day that the mayor's transition teams released their agenda for Pittsburgh for Everyone, which included a robust agenda for affordable housing,” said David Breingan, executive director of the community group Lawrenceville United, which pushed for inclusionary zoning in the East End neighborhood.
“It seems to me like a spit in the face to the new administration and their entire agenda of really turning up the city's response to the affordable housing crisis in Pittsburgh.”
Jennifer Rafanan Kennedy, executive director of advocacy group Pittsburgh United, said Pittsburghers made their policy preferences clear when they voted for Mayor Gainey, who campaigned on creating more affordable housing.
“These are common-sense policies,” she said.
Where does this leave the city? "It may very well be that a regulatory model does not work very well; it has to be done through incentives," Ledewitz said. "I realize that may not be practical, but that may be the only way."
