State Legislature Amends the Illinois Affordable Housing Planning and Appeal Act, Preempting Home Rule Authority

June 14, 2021

Buried in an amendment to the Illinois State Weights and Measures Act and amongst changes to COVID-related affordable housing legislation, the Illinois state legislature has passed a bill amending the Illinois Affordable Housing Planning and Appeal Act.

The Act requires non-exempt municipalities (those with less than 10% affordable housing units from their total housing stock) to prepare an affordable housing plan designed to ensure the future development of affordable housing.  It also permits developers to appeal certain decisions of non-exempt municipalities to a state board when they feel certain conditions have been imposed that render it unfeasible for them to construct affordable housing.  The legislation created a state appeals board for considering those objections – but took years to fill the board which has seen no meaningful action since its inception. 

The amendments reflect an effort to put some teeth in the original bill.  For instance, it now clearly preempts home rule authority and subjects home rule units to the Act — clearing up the longstanding “debate” about whether the original legislation did that or not.  The amendments would also require non-exempt municipalities to hold a public hearing prior to adopting a new affordable housing plan or any revisions to an existing plan.  It also adds more meaningful enforcement authority for the Act – which does not presently exist – giving the Attorney General enforcement power against local governments that have failed to submit an affordable housing plan or that have submitted a plan that the Illinois Housing Development Authority finds is not in substantial compliance with the law.  The amendments also seek to ensure that the Appeals Board is not left vacant and require that, to the extent possible, vacancies should be filled within 90 days.

The Act has not yet been signed into law by the Governor.  When or if it is, otherwise non-exempt home rule units – and other non-exempt local governments that have not previously complied with the terms of the Act – can expect notice from the Illinois Housing Development Authority that they are now subject to the terms of the Act.  At that point, they will need to consider creating a qualified affordable housing plan consistent with the terms of the Act.