Legal Action Provides funding Assistance to State & Local HBAs

The Legal Action Committee met May 16 during NAHB’s Spring Board of Directors meeting in Washington, D.C. to consider several applications for funding assistance from the NAHB Legal Action Fund. 

The Legal Action Fund exists to support litigation by state and local associations and builders in cases involving matters of common importance or national significance to the shelter industry.  The Committee reviews applications three times per year in conjunction with scheduled meetings of the Board of Directors.  The six cases recommended by the Committee to the NAHB Executive Board for litigation grant approval involve a range of issues that are often problematic for the building industry. 

Inclusionary zoning ordinance: The Florida Home Builders Association is pursuing a challenge to an inclusionary zoning ordinance adopted by the City of Tallahassee.  The ordinance requires developers building residential housing containing 50 or more units within certain areas of the city to sell a minimum percentage of those units at or below “a maximum affordable sales price” of $125,378.  The ordinance imposes additional restrictions on resales, grants the city the right of first refusal to purchase affected units.  The Florida Home Builders filed suit challenging the ordinance claiming it violates both federal and state constitutions and they seek declaratory and injunctive relief. 

Permanent conservation easements:  In Wisconsin, the Madison Area Builders Association is fighting an ordinance recently enacted by the Town of Sun Prairie in Dane County.  The ordinance is an exaction that requires all landowners applying for rezoning from agricultural to residential to set aside two acres for a permanent conservation easement for each acre proposed for rezoning or land use change. MABA believes the ordinance constitutes an unlawful exaction because it requires the identification and designation of areas for set aside at a ratio of a minimum of two acres for each acre proposed for land use change or rezoning. 

Endangered Species Act listing:  The Building Industry Association of Washington is challenging the National Marine Fisheries Service’s (NMFS) listing of Southern Resident Killer Whales as an endangered subspecies of the North Pacific Killer Whales.  The Endangered Species Act does not give authority to list distinct populations of subspecies as NMFS has done in this case.  Thus, BIAW contends the listing is illegal and seeks declaratory and injunctive relief from the court.

Preserving a favorable court ruling on a system development charge:  The Central Oregon Builders Association (COBA) successfully challenged a system development charge enacted by the city of Redmond, Oregon.  COBA is now defending a successful court decision that found in COBA’s favor on both the system development charge and COBA’s standing to sue.  The city is appealing to an intermediate court of appeals in Oregon, and COBA seeks to preserve the favorable lower court ruling.

Denial of a subdivision plan:  Acadian Home Builders Association is supporting one of its members who is appealing the denial of a subdivision plan in Lafayette Parish, Louisiana.  The builder seeks to compel approval of his preliminary plat approval and subdivision approval for a 102-lot subdivision partially located in an Army Corps of Engineers designated 100-year floodplain.  The builder contends in his legal challenge that the development complied with all requirements, and the local government improperly denied his preliminary plat and subdivision.

Down zoning challenge:  The Home Builders Association of Delaware is challenging an ordinance adopted by Kent County, Delaware, down zoning certain lands located in the county.  Prior to the ordinance’s enactment, most of the lands were zoned agricultural commercial or agricultural residential, permitting a minimum development density of one unit per acre.  Following the new ordinance, zoning density changed from one unit per acre to one unit per 5 acres.  The ordinance now includes 100-foot vegetative buffer areas boarding state roads, and 100-foot vegetative buffers for tidal and non-tidal waters.  The HBA’s complaint raises procedural due process issues, equal protection issues, unconstitutional takings claims, and regulatory takings claims.

The NAHB Executive Board approved all six of these funding recommendations.  The deadline for Legal Action Fund applications for the Fall Board Meeting in Salt Lake City, Utah, is August 1. 

Applications and guidelines may be downloaded from the members-only pages of www.nahb.org/legalaffairs. 

For more information on these grants, please e-mail Mary Lynn Pickel, Director of Legal Services, or call her at 800-368-5242 x8485. For information on filing an application to the fund, e-mail Felicia Watson, Staff Counsel, or call her at 800-368-5242 x8229.  [ return to top ]