< Back To Index 03.05.2009 - HPP

It is not unusual for affordable housing developers to encounter NIMBY resistance when they announce plans for new projects.  “NIMBY” refers to neighborhood opposition to new development based simply on not wanting the development near them—“Not In My BackYard.”  Unfortunately, all too frequently, NIMBY reactions can cause local government officials to veto worthy developments.  In recent cases in St. Cloud and Willmar, HPP assisted nonprofit developers in successfully fighting back.

In St. Cloud, the city and community had long recognized a need to deal more effectively with homeless chronic alcoholics.  Meanwhile, in Duluth, the Center City Housing Corporation had developed the New San Marco Apartments to target this particular problem with a new approach.  The San Marco model was based on the notion that part of the reason chronic alcoholics remain homeless is that they are unable or unwilling to give up drinking in order to secure housing.  By allowing residents to drink in their rooms, the San Marco has provided a humane solution, has solved much of the City’s public drunkenness problem, and has dramatically reduced demand on public services in the form of police calls, emergency room visits, and detox visits.  Police, judges and medical providers have all become strong supporters of the San Marco.

Based on an invitation from the St. Cloud HRA, Center City proposed to build a similar apartment building in St. Cloud serving chronic alcoholics, called River Crest.  River Crest required a conditional use permit from the city, however, because of the city’s zoning code.  At the CUP public hearing, neighbors turned out to protest the proposal, voicing fears of having chronic alcoholics located in their neighborhood.  River Crest countered with evidence of how such fears have proven to be groundless in the San Marco situation, as well as describing all the steps Center City had taken to accommodate city concerns in the River Crest proposal.  Nevertheless, the Planning Commission denied the CUP (rejecting staff recommendations to approve), and the City Council upheld the Planning Commission denial.  It was evident to most observers that officials voting to deny River Crest had little concrete basis for their votes other than accommodating the neighborhood NIMBY reaction.

Developers often give up at this point, but River Crest filed suit in state court, represented by HPP.  The case came before the Court at the end of January 2009, just two months after the case was filed.  River Crest had based its case on several claims:  that the city had no reasoned basis to deny the CUP, that the reasons the city did provide ran afoul of federal and state anti-discrimination laws (since the reasons were almost all based upon the disability status of future River Crest residents—alcoholism), and that the city had failed to decide on River Crest’s CUP request within the time limits under Minnesota law.  The case presented important legal and policy issues, such as whether a city can deny housing based upon would-be residents’ predicted future behavior (risks due to intoxicated behavior in the neighborhood) or whether such attempts to predict future behavior are the kind of generalizing and stereotyping prohibited by the Fair Housing Act and similar laws.  In the end, however, the Court decided the case in River Crest’s favor on a more technical issue.  The Court found that the city had violated the “60 Day Rule” by failing to make a final decision on the CUP request within 60 days.  (Under the 60 day rule, the city could have automatically extended the 60 days by an additional 60 days, but for whatever reason, the city failed to do so in this case.

River Crest will now be proceeding with construction.  The lesson for affordable housing developers considering similar challenges to NIMBY-motivated denials is to be alert not only to the fair housing rights of their clients, but also to the technical requirements of Minnesota law.

Not long before River Crest, HPP was asked to assist with a similar case in Willmar.  The Southwest Minnesota Housing Partnership sought assistance from HPP in addressing a strong NIMBY reaction from local citizens opposing an affordable housing development which would provide lower income residents lease-to-own opportunities. The proposal had widespread support from funders and SWMHP already had the legal right to build the development.  The only approval needed from the city was for a conditional use permit to allow for the purchase option.  It appeared that the project would be voted down until HPP provided legal analysis to the city which then narrowly approved the development.  Neighbors appealed, the decision was reversed, and then a faction of the City Council siding with the NIMBY neighbors initiated a series of maneuvers effectively stopping the project.  On behalf of SWMHP, HPP threatened to sue, leading to the city’s agreement to finally and fully approve the project.   

The experience in these cases suggests that affordable housing developers can successfully fight back, and that it need not entail lengthy court fights.  Consulting with fair housing attorneys early in the process is a prudent step.