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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 marks 15th anniversary with new reports on proposed Economic Fair Housing Act

The Equitable Housing Institute (EHI) celebrated its 15th anniversary on September 19, 2023, by publishing several new reports related to its draft Economic Fair Housing Act (EFHA). That proposed statute would ban regulatory barriers to housing opportunities comprehensively, statewide or even nationwide.

Those zoning and other barriers, created by local governments—and sometimes by the state or even federal government—are prime culprits in the crisis-level loss of housing affordability across America. Those economically discriminatory barriers also play a primary role in homelessness, housing instability, and deprivations of fair housing.

New draft EFHA

The current draft of that statute is EHI's Discussion Draft Economic Fair Housing Act (EFHA), annotated (September 2023), posted at Draft EFHA, Sept. 2023. Enacting such a statute is crucial to reversing the dramatic losses of housing affordability across the United States in recent decades. Enacting such a statute also is crucial to minimizing homelessness, reversing the sharp increase in residential isolation of Americans by income level, and combating the severe, adverse effects of regulatory barriers to housing opportunities on the American economy. All of those problems disproportionately impact minority group members, because most minority group members are on the lower end of the income and wealth spectrums.

A comprehensive ban is necessary because government, especially at the local level, has a vast range of land use tools that can effectively block unwanted new housing. A ban on the use of one exclusionary tool has often led a local government to use another land use tool that has not been banned but has a comparable, exclusionary effect.

 The proposed EFHA builds on the successes of federal and state statutes that generally prohibit government from creating or applying practices that have a disparate impact based on race, disability, and certain other non-economic characteristics. An example is the federal Fair Housing Act (42 U.S.C. §§ 3601-3619 (Apr. 11, 1968, as amended). See, e.g., Texas Dep’t of Hous. & Cmty. Affs. v. Inclusive Communities Project, Inc., 576 U.S. 519 (2015). The Fair Housing Act has gone hand in hand with a substantial and fairly steady decrease in racial isolation in housing.

New, related reports

• "Missing middle" housing and the Economic Fair Housing Act, posted at Missing middle and EFHA. Among the many problems that the proposed Economic Fair Housing Act (EFHA) would counteract are unreasonable restrictions on accessory dwelling units (ADUs) and other multi-unit residential lots (“missing middle” options) in American neighborhoods. The “zoning out” of those forms of housing in single-family neighborhoods generally is among the vast array of unwarranted regulatory restrictions that have led to this nation’s crisis-level housing affordability problems.
• Can the vast range of regulatory barriers to housing opportunity be deterred by an Economic Fair Housing Act (EFHA)? (June 2023), posted at Vast range of RBHOs v. EFHA. The frequent use by local governments of a variety of regulatory tools to thwart needed housing development has resulted in long-mounting crisis of housing shortages and hyperinflation in housing costs across America. This report shows how the EFHA could provide a comprehensive solution. 
• How an Economic Fair Housing Act would affect minority group members (June 2023), posted at EFHA and minority group members. The EFHA would open the door to much greater housing opportunities for low- and moderate-income Americans, including the disproportionate share who are minority group members. Among those opportunities would be much-improved chances to live in high-opportunity areas. However, there also would be challenges, such as possible displacement of some low- and moderate-income people due to gentrification in certain areas. EHI's report focuses on the advantages and challenges of an EFHA for minority group members. 
•  Supermajority vote requirements and related barriers to adding needed housing, posted at Supermajority rules and related housing barriers. Many states, however, do not allow local governments to approve rezonings by a mere majority vote of the local governing body, if the owners of a few nearby parcels file a formal “protest petition” challenging the rezoning application. Usually, a formal protest by the owners of 20% or more of the real estate within a few hundred feet of the land in question is sufficient to defeat the rezoning, unless a supermajority of the local governing body approves it. The most common supermajority requirement is three-quarters of the members of that body. The EFHA would be a powerful tool in curbing such onerous restrictions on the addition of needed housing. 
• Subregional jobs-housing balance and regulatory barriers (April 2023), posted at Subregional JHB & EFHA. Because regulatory barriers interfere with the housing supply increasing sufficiently in communities with ample, good-paying jobs, many people who work in those communities cannot find suitable housing opportunities within a reasonable commuting distance. Regulatory  barriers also cause serious environmental problems by forcing too much new development to sprawl into outlying areas, far from people's jobs. The EFHA would lead to much greater progress toward sufficient housing in employment hubs.

• Prohibiting exclusionary housing practices by non-governmental officials authorized by law to restrict housing rights (April 2023), posted at: Non-gov'tal-housing-rules-EHI-4-2023. By 2020, more than 74 million Americans were estimated to be living under an association of homeowners (“community association” or "HOA"). Those associations generally have detailed authority over land uses and even matters of aesthetics in their neighborhoods. Single-family housing developments with HOAs can, and often do, ban structures on a lot other than one single family dwelling, and perhaps a garage or carport for cars. Those restrictions generally are binding on both the original property owners and all subsequent owners, unless a law is enacted by the local, state or federal government that is inconsistent with the ban. The EFHA would clarify which restrictions by HOAs and other non-governmental officials on housing rights are binding. 

Special thanks for help and inspiration on the EFHA project goes to Richard Kahlenberg, Senior Fellow at the Progressive Policy Institute. A stalwart advocate of enacting an EFHA, Mr. Kahlenberg's outstanding new book Excluded, published in July, lays out the case for the EFHA and other housing law reforms. Special thanks also go to EHI’s 12 law clerks over the past four years, who have provided much of the research for EHI’s recent reports.