Aldermen postponed action on an inclusionary housing ordinance tonight after the city’s legal staff said the ordinance as drafted could be subject to legal challenge as an unconstitutional taking of private property.

City attorney Herb Hill said the ordinance needs to be reworked to provide clear benefits to the developer in return for the contribution of affordable housing, a procedure for waiving the requirements, or both.

Mr. Hill said that providing a “toolbox” of incentives offer a way to overcome challenges to the law in which a developer might argue that the ordinance denies any economically viable use of the property.

He said he recently learned of an inclusionary housing ordinance in Napa, Calif., that has survived a constitutional challenge.

That ordinance provides a “toolbox” of incentieves that include expedited processing of project applications that include an inclusionary housing component, deferral of city fees until the end of the construction process, city assistance with marketing the affordable units, density bonuses, city loans or grants and possible waiver of some city construction rules.

Some Evanston aldermen, notably Melissa Wynne, 3rd Ward, have said they are opposed to providing any additional density bonuses for developers in an affordable housing ordinance.

Mr. Hill said the Napa ordinance also applies to all types of housing in the community — including single family homes and rental properties. By contract, the current draft of the Evanston ordinance would only apply to planned developments of 25 or more units of owner-occupied housing.

He said that he hopes to have a revised draft of the ordinance ready for the Planning and Development Committee to discuss at its next meeting, Oct. 23. The inclusionary housing ordinance has already been under consideration for more than two years.

Alderman Ann Rainey, 8th Ward, said she’d like to learn more about Napa’s use of a municipal housing authority, and asked the city staff to develop estimates of what funds will be required to administer an inclusionary housing ordinance and the real estate transfer tax increase for affordable housing, if it is approved by voters next month.

“It seems to me we’re adding on obligations and responsibilities, and I wonder if the current staff can handle it,” Ald. Rainey said.

Alderman Lionel Jean-Baptiste said staff should also develop suggestions for how funds should be allocated among persons at different income levels.

Bill Smith is the editor and publisher of Evanston Now.

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