North Carolina recently became the first state to add the specific term "affordable housing" as a protected class in its fair housing law. A diverse team of affordable housing advocates and housing associations including the North Carolina Housing Coalition, the North Carolina Justice Center, the North Carolina Apartment Association, and the North Carolina Home Builders Association, pushed the bill as a way to prevent local government discrimination against affordable housing and stimulate new development interest in the sector.

The coalition introduced the Affordable Housing/No Discrimination Act (SB 810) in January and it passed both the state House and Senate by wide margins. “We heard from a number of nonprofit and for-profit developers and other affordable housing advocates around North Carolina that they were having problems getting affordable housing, whether it be homeownership or apartments, cited because of potential objections by neighborhood groups or even local government saying we don’t need anymore of that kind of housing,” says Bill Rowe, general counsel and director of advocacy at Raleigh, N.C.-based North Carolina Justice Center.

The Act amends the North Carolina Fair Housing Act to read: “It is an unlawful discriminatory practice to discriminate in land-use decisions or in the permitting of development based on race, religion, sex, national origin, handicapping condition, familial status, or, except as otherwise provided by law, the fact that a development or proposed development contains affordable housing units for families or individuals with incomes below 80% of area median income.”

Tar Heel developers are hopeful that the newly passed legislation will help deter NIMBYism going forward and encourage more low-income and mixed-income development throughout the state. “This legislation could really open the door and make it easier for affordable housing developers to be successful in locations that otherwise have been difficult and more actively pursue locations that they might have otherwise avoided,” says Dionne Nelson, vice president of Charlotte, N.C.-based affordable developer Crosland, which has a number of North Carolina affordable projects in development or in the pipeline.

Only time will tell if the bill does indeed help foster increased affordable development, adds Ken Szymanski, executive director of the Charlotte-based Apartment Association of North Carolina. “I think it’s a terrific step forward, and time will tell what happens when a given case goes before elected officials. Where the rubber is going to meet the road is when various proposals are made for affordable housing and the purported reasons for opposing are perhaps different than the real reasons and how that will shake out in front of a city council.”

Will other states adopt similar legislation? “I don’t know,” Rowe admits. “We have had calls from a few other states. A lot of it depends on what other tools are available as there may be other ways to protect or ensure that affordable housing gets built in those states.” 

In 2000, Florida’s Affordable Housing Study Commission adopted a proposal made by 1000 Friends of Florida to amend the Florida Fair Housing Act by extending protection to affordable housing developments. Florida Statute 760.26 reads: “It is unlawful to discriminate in land use decisions or in the permitting of development based on race, color, national origin, sex, disability, familial status, religion, or, except as otherwise provided by law, the source of financing of a development or proposed development.”

The decision to not specifically use the term “affordable housing” in statutory language has in no way diminished the intended application of Fair Housing Act protection, advocates say. Since enactment, county and city attorneys have regularly advised their commissions that affordable housing developments can not be treated differently from market-rate developments in land use or permitting decisions.