By Martin Cozzola, Staff Counsel
INTRODUCTION
In January 2026, a two-and-a-half-year saga to strengthen the Affordable Housing Planning and Appeal Act (AHPAA)—Illinois’ sole law requiring select municipalities to create plans for new affordable housing—ended with significant victories for affordable housing advocates. These victories came through a bureaucratic and often overlooked administrative procedure known as “rulemaking” and were the result of advocacy from a coalition of organizations that included Impact for Equity, YIMBY Law, Abundant Housing Illinois, Housing Action Illinois, and more than a dozen other partner organizations.
Through rulemaking—a process intended to clarify ambiguities in the plain language of laws—AHPAA was enhanced in a number of ways, chief among them the addition of clear and unambiguous language that Illinois municipalities with home rule powers are subject to the law,1 and establishment of a process for noncompliant communities to be referred to the Illinois Attorney General for potential enforcement actions. This post outlines how rulemaking works, why Impact for Equity’s advocacy was necessary, and how rulemaking played out this time around.
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WHAT IS RULEMAKING?
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At all levels of government, administrative agencies create rules to add clarity about how laws will be interpreted and implemented or enforced. In most cases, the power to create rules is set forth in statute. Regulations exist because lawmakers cannot be experts on every subject matter they legislate around, while employees of administrative agencies are typically experts in their field with significant, relevant experience they can rely upon when developing rules. Legislators therefore delegate this responsibility to agencies through a process that leverages agencies’ expertise. Rulemaking also typically involves a public comment phase and is therefore an opportunity for members of the public to give direct input on the laws that impact their day-to-day lives.
Since AHPAA’s passage in 2003, the Illinois Housing Development Authority (IHDA) has been responsible for administering the law. At the time of passage, rulemaking authority for AHPAA was contained within a section of the law focused on the law’s appeals process and gave IHDA discretion on whether to develop regulations.2 An early amendment, however, moved rulemaking to its own section of the statute and made it clear that IHDA was required to create regulations for any portion of the law that needed additional clarification.3 The law existed without regulations for nearly a decade, until an initial set of rules were approved in 2013.4
WHY DID AHPAA NEED UPDATED RULES?
Unless a statute specifies otherwise, rulemaking begins when the agency that administers the law in question is prepared to create rules. In many cases, this happens shortly after a statute passes or is amended, and this instance of rulemaking was no different. When the 2023 campaign to amend AHPAA resulted in passage of SB 1476,5 Governor Pritzker’s signature in August was not the end of the road. Instead, it kicked off a process that took nearly two-and-a-half years to complete. The AHPAA advocacy coalition saw rulemaking as an opportunity to clarify both longstanding and new ambiguities in AHPAA.
In January 2024, IHDA’s Board of Directors approved draft rules incorporating the changes from both a 2021 omnibus that included a few tweaks to AHPAA6 and SB 1476. IHDA provided Impact for Equity with a pre-publication copy of the rules at the end of February 2025, though the rules were not included in the Illinois Register (the formal process for making rules public) until May 9th.7 The rules’ appearance in the Illinois Register triggered a public comment period with comments due June 23rd.8
INITIAL ROUND OF COMMENTS
Impact for Equity, YIMBY Law, and partner organizations collaborated on written comments that included both critiques of changes IHDA sought to make to existing rules and requests that IHDA clarify ambiguities in the law through the addition of new language. Those comments were compiled in a letter that was submitted on time. IHDA responded to those comments on September 10th.
In its response, IHDA agreed with several of the coalition’s suggestions, including a request to strengthen the regulatory definition of “local government” to make clear that home rule communities are subject to the law. While there was ambiguity about home rule communities’ inclusion in the AHPAA for much of the law’s existence, language explicitly preempting home rule authority was added to the law in 2021.9 Despite this change, some home rule communities continued to argue they did not need to comply with the law, and it was clear that more explicit language in the regulations could put the issue to bed permanently. As a result, we were delighted to see IHDA agree to adopt our recommended language.
On the other hand, IHDA was reluctant to make some of the changes that the coalition believed were most critical. More specifically, we asked IHDA to develop rules for portions of the law related to the substance of affordable housing plans. From the coalition’s perspective, these changes were necessary because our analysis of affordable housing plans suggested that a lack of regulations focused on the substance of those plans meant they were inconsistent in ways that sometimes undermined AHPAA’s effectiveness. Unfortunately, IHDA disagreed, stating that language in AHPAA itself provided sufficient guidance to communities subject to AHPAA.
A more detailed chart outlining the coalition’s comments and IHDA’s responses is included as an appendix at the bottom of this post.
WHAT HAPPENED NEXT?
IHDA issued “second notice” (or revised) rules that incorporated our feedback and sent those revised rules to the Joint Committee on Administrative Rulemaking (JCAR) on November 3rd. JCAR is a committee in the Illinois General Assembly composed of members from both the Senate and House with its own administrative staff. JCAR meets regularly to evaluate proposed rules and then approves, changes, or rejects agencies’ proposals. When revised rules are submitted to JCAR, agencies attach comments from the first round of public comment so that JCAR can evaluate whether the agency sufficiently responded to those concerns. In addition, members of the public can submit comments on the revised rules directly to JCAR, who can contact commenters directly to discuss concerns if necessary.
In this instance, JCAR staff met with the coalition on December 9th to discuss our perspective on the revised rules, and a few days later the coalition submitted a letter outlining our feedback. The letter included a note thanking IHDA for making the changes that they were willing to make and urging JCAR to make the remaining changes—largely reiterating our original arguments. In particular, we hoped that JCAR would ask IHDA to add regulations that outlined how and when they would refer communities that have violated AHPAA’s planning requirements to the Illinois Office of the Attorney General.
In the end, JCAR largely deferred to IHDA’s judgment, approving the second notice regulations without further changes except a request that IHDA address the ambiguity around how it would make referrals of noncompliant communities to the Attorney General. To resolve JCAR’s concerns, IHDA added a new provision to the rules committing the agency to sending a list of noncompliant communities to the Attorney General of noncompliance with the law’s planning requirements roughly six months after plans are due.10 This revision was well beyond the coalition’s hopes and effectively transformed the word “may” in Section 25(f) of the statute to a “shall.” JCAR approved the finalized rules on December 17th,11 and they went into effect on January 8, 2026.12 IHDA sent a letter to inform the Attorney General that 29 communities failed to submit compliant AHPAA plans in a letter dated January 30th.13
CONCLUSION
While the coalition could not achieve all its goals for AHPAA through rulemaking, there were significant victories throughout the process, including more explicit preemption of home rule authority and a commitment to refer non-compliant communities to the Attorney General. The work is just beginning, however, and members of the coalition have shifted their advocacy in two directions: first, to educate the Office of the Attorney General on AHPAA and the Office’s power to file suit against communities that have a long history of noncompliance with the AHPAA; and second, to further strengthen AHPAA through additional legislative advocacy in the form of HB 5198, which would, among other things give IHDA more explicit authority to regulate the substance of plans.14
APPENDIX:
| Recommendation from Coalition | Initial Response from IHDA | Further revisions after JCAR? |
| Generally: Retitle regulations from “State Housing Appeals Board” (SHAB) to “Affordable Housing Planning and Appeal Act” (AHPAA) to reflect IHDA’s wide-ranging rulemaking authority under Section 60. Initiate rulemaking for portions of the law that have not previously had rules. | Acknowledgement that rulemaking authority is very broad but declined to change the title over concerns that a “broader title may be vague and reduce the utility of the Rules and clarity about their contents.” In addition, the agency would not initiate rulemaking for other provisions of the law because other guidance (including plain language of the law) is sufficient. | Unchanged. |
| Generally: Clarify when IHDA will make referrals of noncompliant communities to the Illinois Attorney General. | Establishing regulations around Attorney General referrals would not be “an appropriate exercise of administrative rulemaking authority. | IHDA will refer noncompliant communities to the Attorney General ~6 months after plans are due. |
| Definitions: Amend definition for “local government” to explicitly include home rule communities | Agreed, incorporated in final published rules. | Unchanged. |
| Meetings of SHAB members: Reinstate previous requirement that SHAB members meet at least once per year. | Agreed, incorporated in final published rules. | Unchanged. |
| Initial Pleadings: Clarify what constitutes a “final decision” under AHPAA, because only final decisions about affordable housing proposals can be appealed, | The SHAB will develop its own procedural rules and clarify other ambiguities through ruling on appeals. This including clarifying what constitutes a “final decision.” | Unchanged. |
| Responsive Pleadings by NELGs: Require NELGs to identify what law forms the basis for the community’s denial or restriction of an affordable development | Agreed, incorporated in final published rules. | Unchanged. |
| Evidence: Add language to allow the SHAB to consider potential infrastructure improvements NELGs could take to make it easier for affordable housing to be built during appeals | The SHAB will develop its own procedural rules and clarify other ambiguities through ruling on appeals. This includes establishing rules around what evidence the SHAB will consider when evaluating appeals. | Unchanged. |
| Appellant’s Burden of Proof: Clarify the meaning of “geographic focus area” to ensure potential appellants don’t waste resources filing appeals when they’re not qualified. | The SHAB will develop its own procedural rules and clarify other ambiguities through ruling on appeals. This includes clarifying the meaning of “geographic focus area.” | Unchanged. |
| Appellant’s Burden of Proof: Clarify that appellants need to only prove one of the elements listed to meet their burden of proof. | Agreed, incorporated in final published rules. | Unchanged. |
ENDNOTES
[1] Of the 44 Illinois communities currently subject to AHPAA, 20 are currently home rule communities. Home Rule Municipalities, Ill. Mun. League (May 21, 2026), https://www.iml.org/homerule-municipalities.
[2] IHDA “may adopt such other rules and regulations as it deems necessary and appropriate to carry out the Board’s responsibilities under this Act and to provide direction to local governments and affordable housing developers.” The Affordable Housing Planning and Appeal Act, Pub. Act 93-0595, 2003 Ill. Laws 4234.
[3] Pub. Act 94-0303, 2005 Ill. Laws 2750.
[4] 37 Ill. Reg. 4901 (April 12, 2013), https://www.ilsos.gov/content/dam/departments/index/register/volume37/register_volume37_issue15.pdf.
[5] Pub. Act 103-0487, 2023 Ill. Laws 8621.
[6] COVID-19 Affordable Housing Grant Program Act, Pub. Act No. 102-0175, 2021 Ill. Laws 5386.
[7] 49 Ill. Reg. 6024 (May 9, 2025), https://www.ilsos.gov/content/dam/departments/index/register/volume49/register_volume49_19.pdf.
[8] Ill. Gen. Assemb., Joint Comm. on Admin. Rules, The Flinn Report: Illinois Regulation, Issue 19 (May 9, 2025), https://ilga.gov/documents/commission/jcar/flinn/20250509_May%209,%202025%20-%20Issue%2019.pdf.
[9] Supra note 6.
[10] 47 Ill. Admin. Code § 395.401(b) (2026).
[11] Ill. Gen. Assemb., Joint Comm. on Admin. Rules, Meeting Minutes (Dec. 17, 2025), https://ilga.gov/documents/commission/jcar/Minutes/20251217_December%2017,%202025.pdf.
[12] 50 Ill. Reg. 1085 (January 23, 2026), https://www.ilsos.gov/content/dam/departments/index/register/volume50/register_volume50_4.pdf.
[13] While IHDA’s letter technically complies with the new rules, Impact for Equity continues to work with both IHDA and the Office of the Attorney General to ensure meaningful enforcement of AHPAA.
[14] H.B. 5198, 104th Gen. Assemb., Ill. (2025).
