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“Housing is a necessary of life.”
United States Supreme Court
Block v. Hirsch, 256 U.S. 135, 156 (1921)
(per Justice Oliver Wendell Holmes, Jr.)

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EHI works with Congressional subcommittee staff on proposed Economic Fair Housing Act (EFHA)

In October 2022, the Equitable Housing Institute (EHI) completed its basic proposal for a federal Economic Fair Housing Act (EFHA). EHI had been working on that non-partisan proposal in conjunction with staff from the House of Representatives Financial Services Subcommittee on Housing, Community Development and Insurance.

The proposed statute would ban exclusionary zoning and other unjustified, economically exclusionary regulatory restrictions on housing opportunities for low- and moderate-income Americans, throughout the United States. Those regulatory barriers are the chief cause of the chronic hyperinflation and loss of affordability in housing prices across the United States since at least the 1980’s.

For the text of the current EHI draft, please click on: EFHA_draft_10-26-22. For background articles on the EFHA proposal, please see below and click on Comprehensive Ban Proposal in MORE ARTICLES (to left). 

Recent statistics reconfirm the crucial importance of prohibiting those barriers. For example, In October 2022, the housing component of the Consumer Price Index for All Urban Consumers (CPI-U) posted its biggest monthly increase since August 1990, rising 0.8 percent in one month (seasonally adjusted). That was twice the overall monthly increase in the CPI-U (0.4 percent).

Hyperinflation in that housing component of the CPI-U has been going on since early 2021. It also characterized most of the preceding 10 years and, as mentioned, it was already a chronic problem for decades before that.

The nation’s housing shortfall jumped from 2.5 million to 3.8 million housing units between 2018 and the end of 2020, according to Federal mortgage agency Freddie Mac. The National Association of Realtors© (NAR) estimates the housing shortage to be about 5.5 million homes nationally, as of 2022.

On top of that mounting shortfall, the Federal Reserve’s dramatic interest rate hikes in 2022 contributed to a huge loss of confidence by single-family homebuilders concerning the market for new construction. When homebuilder confidence declines, construction activity will decline too. The single-family homebuilders’ confidence level started at 83 out of 100 in January 2022, as measured by the National Association of Home Builders’ (NAHB’s)/Wells Fargo Housing Market Index (HMI). However, that confidence index declined each month, ending at 31 by December---the lowest level since mid-2012 (except for the spring of 2020, at the start of the COVID-19 pandemic).

As to rental housing, prices are likely to accelerate further in the near term, due to exceptionally high demand—largely because many Americans are being forced out of the home buying market by escalating mortgage rates. Most low- and moderate-income Americans rent their housing, and landlords already have raised rents to recover income lost during COVID-19 restrictions.

As the leadership of House committees changes for the new Congressional term, with Republicans having gained a narrow majority in the House, some delay in action on an EFHA can be expected. However, there is a broad, bipartisan consensus among housing policy experts, economists—and even the Presidents of the United States since at least 1991—that land use regulations present major, widespread barriers to housing production and affordability and that they need serious reform. EHI believes that the EFHA approach is an essential part of the solution.  

EHI documents answers to important questions about EFHA with help of four law clerks

Many questions inevitably will be raised about a legislative proposal as significant as the EFHA. Thanks largely to in-depth research performed by its four law clerks in 2022, EHI now is able to provide extensive documentation of its answers to several important, complex questions. Among EHI’s conclusions are that:

• A comprehensive ban on economically exclusionary regulatory barriers to housing opportunity can be effective, despite the vast range of those barriers that have been created, or that could be created, by government units.
• There are publicly acceptable ways to modify exclusionary single-family zoning in parts of urbanized areas where that zoning precludes reasonable housing opportunities for low- and moderate-income people.
• An EFHA is feasible despite widespread homeowner support, across most demographics, for current land-use policies in their areas, which often are quite exclusionary. 
• The added costs to the public and private sector due to the EFHA would be minor, and they would be vastly outweighed by the benefits of increasing the housing supply and reversing the loss of housing affordability, stability and fairness caused by regulatory barriers.

All four of EHI’s clerks this year were students at the George Washington University Law School in Washington, DC. They are Derick Wallace ’22, Adam Lindemulder ’23, Alexis Manning ’24 and Rebecca Bass ’24. Mr. Wallace worked for law school credit in the spring 2022 term. The other three worked in the summer for stipends made possible by EHI donors. Many thanks to all of them for their tremendous contributions!

Retired Judge Peter Buchsbaum joins EHI Advisory Committee

To EHI's delight, the Hon. Peter A. Buchsbaum, a leading expert on zoning and housing law, who served on the New Jersey Superior Court for over a decade before his 2016 retirement, joined EHI’s Advisory Committee in January 2022. As a judge, he concentrated on land use, zoning and probate issues, and he still serves as a special master in affordable housing cases before that court.

Among Judge Buchsbaum’s many other contributions to zoning and land use law, he has served as Chair of the American Bar Association (ABA) Land Use, Planning and Zoning Committee—and of the New Jersey State Bar Association Land Use Law Section. He served on the Ad Hoc Committee on State Planning, which drafted the New Jersey State Planning Act and Fair Housing Act. That legislation codified the landmark judicial doctrine declaring exclusionary housing practices invalid in New Jersey, which initially was announced in Southern Burlington Co. NAACP v. Mount Laurel, 67 N.J. 151, 336 A.2d 713, cert. denied, 423 U.S. 808 (1975) (“Mount Laurel I”).

Judge Buchsbaum has written many scholarly articles on land use issues, including legal remedies for barriers to housing stability, fairness and affordability. As an example, he served as a consultant to the American Planning Association’s Growing Smart Project, for which he drafted alternative, model affordable housing statutes. We are most grateful to Judge Buchsbaum for his willingness to advise EHI on aspects of affordable housing legislation.