NIMBY, or “Not In My Back Yard,” made its way into our lexicon in 1980, and is defined by Merriam-Webster as “opposition to the locating of something considered undesirable (such as a prison or incinerator) in one's neighborhood.” More recently, we have heard BANANA, or “Build Absolutely Nothing Anywhere Near Anyone.” For those who embrace NIMBY and BANANA, there is another catchy moniker, CAVE, or “Citizens Against Virtually Everything.”

An emerging countermovement is YIMBY, which stands for “Yes In My Back Yard.” It is driven by grassroots citizens groups pressuring their local governments to develop plans and regulations that will make their communities truly diverse and inclusive. What are governments doing in response to this demand, and what are the legal issues in implementation?

First, YIMBY requires planning. Nearly all states require some form of local planning. This is the “mandatory planning doctrine.” It's good to have planning, but essential to any effective YIMBY initiative is the “consistency doctrine” requiring that local regulations and land-use decisions be consistent with the plan. Unfortunately, only 13 states have clear consistency requirements, so, in most states, to have a definitive path forward to implementing a YIMBY plan, the states or the local governments will need to expressly provide that local plans, regulations and decisions be consistent with the plans as adopted.

California is one of the consistency states and may have the oldest YIMBY-style law. The Housing Accountability Act, dating back to 1982, expedites local approvals to encourage more infilling. (Calif. Gov't Code §65589.5). It begins with a declaration of the critical need for affordable housing and then mandates approval of certain affordable housing projects if the local government has not met its fair share of the obligation for such housing as incorporated in the housing element of its plan. As good as this model appears to be, there has been much criticism that it has proved ineffective. California Gov. Gavin Newsom has threatened to withhold transportation funds from local governments not meeting their housing goals.

But plans are not enough. Substantial government subsidies and investment are required to make significant advances in the housing supply. Building affordable housing costs money—lots of it—$330,000 per unit in California. Newsom proposes spending more than $2 billion to help build 3.5 million units in the next seven years, more money apparently than any California governor has ever proposed.

Mandatory planning can be local as well. The YIMBY leader is Minneapolis with its amended 2040 plan permitting, as of right, three dwelling units on all lots zoned for single-family use. The objective is to increase the stock of less expensive, affordable housing, particularly in the most desirable neighborhoods. The city didn't need a state plan to tell it to do this. What it needed and had in spades were citizen supporters driving the process, as the Brookings Institution has reported.

Seattle, which has 75% of its land limited to single-family homes, committed itself to greater density by opening up about 6% of that land area to higher-density housing. That doesn't sound like much, but it is for a place such as Seattle with such a deep-seated tradition of exclusively single-family zoning.

The techniques to create a variety of housing types at various price points are many, ranging from direct production and subsidies as in California and under the federal Low Income Housing Tax Credits programs, to property tax abatement, to providing public infrastructure without charge or below cost, to expediting permitting and giving relief from some requirements for affordable housing. For many decades communities have offered density bonuses for projects providing affordable housing. Some states, e.g., Massachusetts and Connecticut, have laws allowing private developers to seek to override local zoning when those laws preclude affordable housing.

Accessory dwelling units can help densify single-family areas and provide smaller, more affordable units for young singles and couples, as well as older residents no longer desiring a single-family home. Allowing single-wide manufactured units in carefully designed moderate to higher density clusters could be an option for some communities.

Inclusionary zoning ordinances may be mandatory, as in requiring a certain percentage of affordable units in certain developments with or without density bonuses, or voluntary, as with the density bonus used as an incentive. Affordable units are most often built on-site or, in some cases, they are permitted to be built elsewhere, or a money payment in lieu of the construction is paid to a housing trust fund that in turn uses the funds to build or help finance affordable housing or subsidized rents. Significant issues include the extent of documentation needed to ensure continuing availability to households needing and qualifying for the units.

Getting affordable housing built is a complex business, and the greatest success often comes in orchestrating federal, state and local efforts and in managing multiple techniques at once.

Attorney Dwight Merriam is a member of the Connecticut Law Tribune's editorial board.