When Mayor Ed Gainey signed a bill last month to expand inclusive zoning – a tool to create more affordable housing – he welcomed a ceremony in the mayor’s conference room of the city-county buildingsurrounded 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. “That’s what it means when we say ‘creating a city for all’.”
Increasing affordable housing in Pittsburgh was a major campaign theme for Gainey when he ran for office last year, and he pledged to expand inclusive zoning.
But just days after the signing ceremony, the legislation – which requires large housing projects in Polish Hill and Bloomfield to reserve 10% of units for low- and modest-income people – landed in federal court.
A lawsuit filed by the Builders Association of Metropolitan Pittsburgh seeks to strike down the city’s new law, arguing that “the city wrongly seeks to shift the burden of financing low- and middle-income housing from the general public to a select population , namely the residences of 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 lawsuit and has asked the court for an extension to do so.
Affordable housing advocates and other supporters of the new ordinance say the inclusive zoning it expands is well-established law. They say they are convinced that the order will eventually be respected.
But the lawsuit marks the third time in recent years that BAMP and an affiliated organization – the Apartment Association of Metropolitan Pittsburgh, or AAMP — sued the city for housing quality or affordability initiatives.
The Apartment Association fought for years against a city effort in 2015 to ban landlords from discriminating against tenants’ sources of income – meaning landlords would not have been allowed to refuse subsidized housing vouchers, commonly referred to as Section 8 bonds.
In this case, the city argued that thousands of low-income tenants who received vouchers to help pay for housing were unable 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 had no right to impose additional bureaucracy on their businesses.
This law has never been applied and after a long legal battle, the State Supreme Court ruled in favor of the Apartment Association Last year.
In addition, the Apartment Association is one of many groups that have been advocating the city’s various proposals to require rental units to be registered and inspected for more than a decade.
A version of the Pittsburgh order was set to go into effect May 29, but last month an Allegheny County common pleas judge ordered a suspension of inspections.
Court cases have highlighted the limits of municipal power — and the uphill battle the Gainey administration will face — to rapidly increase the supply of affordable housing in Pittsburgh, despite a growing housing affordability crisis.
A city task force in 2016 found that Pittsburgh was short of thousands of affordable units. Supporters say the problem has only gotten worse since then.
The Builders Association, a non-profit trade group, was originally formed in 1938 and the organization bills itself as one of the oldest builders associations in the nation.
“The founders’ primary reason for starting the organization was to unite builders against the threat of government control of the housing industry,” according to a history on the group’s website.
In court filings, he said he has “approximately 400 members in Pittsburgh and western Pennsylvania, including builders and developers who own property in areas of Pittsburgh…as well than promoters who plan to acquire such property”.
Members of the Builders Association formed the Apartment Association in 1974, according to a history on the group’s website. It was born out of “concerns about a review of Pennsylvania’s Landlord Tenant Act and fear of government-imposed rent control,” according to its website.
The affiliated groups have the same address, the same telephone number and share an executive director. An email to the Executive Director of WESA was not returned.
Bruce Ledewitz, a law professor at Duquesne University, said that while each of the organizations’ cases against the city’s affordable housing efforts are different, the city is generally at a disadvantage in these cases because the State law allows.
“Our local governments can only regulate where Harrisburg allows them,” he said. The state constitution limits the ability of municipalities 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 rent registration and inclusive zoning legislation in court.
“Affordable housing is essential to creating inclusive communities, which is why it’s such a high priority for Mayor Gainey,” press secretary Maria Montaño said in a statement.
The mayor’s office also pointed out affordable housing commitments under deal with developer Walnut Capital on Oakland Crossings projectas well as an upcoming announcement on downtown affordable housing.
The legal maneuvers have left local housing activists frustrated, but they say they are undeterred.
“[The Builders Association] filed this legal challenge the same day the Mayor’s Transition Teams released their plan for Pittsburgh for All, which included a strong program for affordable housing,” said David Breingan, executive director of community group Lawrenceville United, which has lobbied for inclusive zoning in the East End neighborhood.
“It strikes me as a spit in the face of the new administration and its entire agenda to really improve the city’s response to the affordable housing crisis in Pittsburgh.”
Jennifer Rafanan Kennedy, executive director of advocacy group Pittsburgh United, said Pittsburgh residents made their political preferences clear when they voted for Mayor Gainey, who campaigned for more affordable housing.
“These are common sense policies,” she said.
Where does that leave the city? “A regulatory model may very well not work very well; it has to be done through incentives,” Ledewitz said. “I realize it may not be practical, but it may be the only way.”