Exclusionary Housing Policies

 

Many low- and moderate-income Americans are unable to buy, rent, or build adequate housing that they can afford, within a reasonable distance from where they work, in many metropolitan areas across the United States. Among the main causes are unnecessary government obstacles to the production and preservation of sufficient housing where it is needed—especially housing within the price range of low- and moderate-income workers. Those obstacles sometimes are called “exclusionary housing policies” or “regulatory barriers to housing affordability.”

Exclusionary zoning

One well-documented problem is exclusionary zoning. Often, government land use regulations (generally local) don’t permit housing—and/or require such large lot sizes, large square footage per dwelling, and/or other high-end features —in such widespread areas of the jurisdiction, that low- and moderate-income people don’t have a reasonable opportunity to live there, even if they work there.

Exclusionary zoning regulations are especially common in suburban areas, where most job opportunities now are located. Federal commissions created under both Democratic and Republican Presidents have confirmed that local zoning ordinances are a major barrier to housing affordability.

Other regulatory barriers to housing affordability

Numerous governmental housing policies other than exclusionary zoning have similar effects. For example, there often are:

  • excessive subdivision requirements, which raise the costs of producing housing in new subdivisions beyond the means of many American working families;
  • unwarranted moratoria or caps on new housing, where the zoning permits such developments, and where the need for moderately priced housing is great;
  • unnecessary property taxes, impact fees, and/or exactions;
  • costly, high-end building and housing code requirements that are unnecessary for health and safety;
  • unnecessarily tortuous, protracted site plan and permit processes; and
  • undue bureaucratic costs on property management

Because affordable housing developments are low-profit or nonprofit enterprises, such governmental impediments have a substantial negative impact on the production and retention of housing affordable to low- and moderate-income people. Another government policy problem is the lack of a policy to transfer suitable land owned by, or available, to the government, for needed housing development that would benefit low- and moderate-income people. Land costs are a major impediment to building housing that could include moderately-priced units. Governments generally can transfer land for such public purposes at greatly reduced cost.

Exclusionary housing policies increase homelessness, poverty, and undue housing cost burdens costs for low- and moderate-income people. They also compound many challenges for the general public, such as:

  • long commuting times on more congested highways;
  • more money spent on motor fuel, car and road maintenance; 
  • unduly sprawling development (bulldozing, paving over, and building in rural areas, degrading those environments);
  • higher housing prices for everyone, due to inadequate housing supply reasonably near job opportunities;
  • hyperinflation (and occasionally, collapse) of housing prices, such as the cycle that led to the severe, recent recession and national financial crisis of 2007-2009; and
  • lost economic development and after-hours vitality near employment hubs, because most workers must live far away, and workers spend most of their income and non-working hours where they live. 

 Illegality of exclusionary housing policies

The highest courts of numerous states have declared exclusionary zoning to be unlawful. Decisions based on constitutional rights include:

  • Appeal of Girsh, 437 Pa. 237, 263 A.2d 395, 397-98 (1970) (if a township “is a place where apartment living is in demand,” lack of provision for apartments in its zoning ordinance renders that ordinance unconstitutional);
  • Southern Burlington Co. NAACP v. Mount Laurel, 67 N.J. 151, 336 A.2d 713, 730-31, cert. denied, 423 U.S. 808 (1975) (“Mount Laurel I”) (“when it is shown that a developing municipality in its land use regulations has not made realistically possible a variety and choice of housing, including adequate provision to afford the opportunity for low and moderate income housing or has expressly prescribed requirements or restrictions which preclude or substantially hinder it, a facial showing of violation” of due process or equal protection of the laws under the New Jersey constitution has been established);
  • , 18 Cal.3d 582, 557 P.2d 473, 488-89 (1976) (to be constitutional, a municipal zoning ordinance must reasonably relate to the regional welfare, including the interests of “[o]utsiders searching for a place to live in the face of a growing shortage of adequate housing”).
  • , 51 N.Y.S.2d 338, 414 N.E.2d 680 (1980), cert. denied, 450 U.S. 1042 (1981) (“A zoning ordinance will be invalidated on both constitutional and State statutory grounds if it was enacted with an exclusionary purpose, or it ignored regional needs and has an unjustifiably exclusionary effect”).

Among the decisions under state zoning enabling statutes are:

  • Board of Sup’rs of Fairfax County v. Carper, 200 Va. 653, 107 S.E.2d 390 396-97 (Va. 1959) (county zoning ordinance, which downzoned the western two-thirds of a rapidly growing suburban county to two-acre minimum lots per dwelling, was invalid because it “is unreasonable and arbitrary and that it bears no relation to the health, safety, morals, or general welfare of the owners or residents of the area so zoned”);
  • Builders Serv. Corp. v. Planning and Zoning Comm’n of East Hampton, 208 Conn. 267, 545 A.2d 530 (1988) (town ordinance that required a minimum floor area of 1,300 square feet for new housing was invalid, because it served none of the purposes of zoning set forth in the state’s zoning enabling act);
  • Britton v. Chester, 595 A.2d 492, 495-96, 499 (N.H. 1991) (municipality’s zoning ordinance as “blatantly exclusionary,” and thus violative of the state’s zoning enabling act requirement that such ordinances promote the general welfare).

See also High Meadows Park, Inc. v. Aurora, 112 Ill. App.2d 220, 250 N.E.2d 517, 521 (Ill. App. 1969) (city ordinance “should be categorized as an exclusionary zoning ordinance which does not prohibit mobile home parks by its terms, but fails to make any provision for that use;” ordinance was beyond City’s delegated powers “as well as constitutionally impermissible in our opinion”); Mount Laurel I, 336 A.2d at 725 (New Jersey Supreme Court noted inconsistency of exclusionary zoning with “general welfare” requirement of zoning enabling act); Kurzius (noting that exclusionary zoning runs afoul of New York’s zoning enabling act as well as its constitution).

Other exclusionary housing policies are no more valid than exclusionary zoning ordinances. See, e.g., Southern Burlington Co. NAACP v. Mount Laurel, 92 N.J. 158, 456 A.2d 390, 441-42 (1983) (“Mount Laurel II”) (municipalities “at the very least, must remove all municipally created barriers to the construction of their fair share of lower income housing,” such as “subdivision restrictions and exactions that are not necessary to protect health and safety.”)

A number of states have enacted statutes providing for the override of local exclusionary housing policies by a state agency, upon an appeal by a developer of housing that would benefit low- and moderate-income people. Those states include Massachusetts (1969), Oregon (1973), Connecticut (1989), Rhode Island (1991), and Illinois (2004). New Jersey enacted a Fair Housing Act (1985) to implement the Mount Laurel doctrine statewide.

Also, a recent federal statute outlaws the equivalent of exclusionary zoning with respect to religious groups. Religious Land Use and Institutionalized Persons Act of 2000 (“RLUIPA”), Pub. L. 106-274, codified at 42 U.S.C. § 2000cc.

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Despite the growing number of judicial decisions and legislative efforts, however, exclusionary zoning and other regulatory barriers to housing affordability continue to be among the biggest barriers to housing availability and affordability for low- and moderate-income people across the United States. EHI seeks to build on the precedents to date and implement effective protection of every American’s right to be free of exclusionary zoning and other exclusionary housing policies.