Exclusionary Housing Policies

Many low- and moderate-income Americans are unable to buy, rent, or build adequate, affordable housing within a reasonable distance from where they work, in Metropolitan Washington and many other parts of the United States.  One of the main causes is unnecessary government obstacles to the production and preservation of affordable housing.  Those problems sometimes are called “exclusionary housing policies.”

One well-documented problem is “exclusionary zoning” (or “snob zoning”).  It consists of government regulations (generally local) that require such large lot sizes, large square footage per dwelling, and/or other high-end features  – in such a large amount of the residentially-zoned land in the jurisdiction – that low- and moderate-income (“lower-income”) people are deprived of the opportunity to live reasonably near their workplace.  Exclusionary zoning regulations are especially common in suburban areas, where a high proportion of job opportunities now exist.

Federal commissions created under both Democratic and Republican Presidents have confirmed that local zoning ordinances are a major barrier to affordable housing development. Numerous governmental housing policies other than exclusionary zoning have similar exclusionary effects.  For example, governments sometimes impose moratoria or caps on new housing, even where the zoning permits such developments, and where the need for affordable housing is great.  Governments also sometimes refuse to transfer available land for affordable housing development.  Land costs are a major impediment to affordable housing projects.

Governments also often burden affordable housing developments with unnecessary property taxes, 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 over-regulation of affordable housing 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 affordable housing.

As a result, exclusionary housing policies contribute to homelessness, poverty, and excessive housing costs for lower-income people generally.

The Center will promote affordable housing by combating exclusionary housing policies. The Center will rely primarily on fundamental individual rights of disadvantaged Americans, guaranteed under state constitutional law, that relate to material well-being. The rights at issue include:

(1)  Freedom from governmental policies that contravene public health, safety, morals, or general welfare; and

(2) Inherent (or "inalienable") rights to life, liberty and pursuit of happiness.

Freedom from governmental policies that contravene public health, safety, morals, or general welfare 

There is a growing movement to outlaw exclusionary zoning. The highest courts of several states have so held. The 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);

•               Assoc. Home Bldrs. v. Livermore, 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”).

•               Cf. Robert E. Kurzius, Inc. v. Upper Brookville, 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).

Other exclusionary housing policies are no more valid than exclusionary zoning ordinances. 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.”)

In the legislative arena, there is a developing movement toward enacting comprehensive, statewide affordable housing statutes. Massachusetts (1969), California (1971), Oregon (1973), New Jersey (1985), Connecticut (1989), and Illinois (2004) have enacted such statutes. And 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. 

The Center seeks to build on the successes to date and implement effective protection of every American’s right to be free of exclusionary zoning and other exclusionary housing policies.
 

Inherent  rights to life, liberty, and pursuit of happiness

The limited case law interpreting those rights, as they relate to basic needs, supports the Center’s approach.  Nevertheless, the application of those rights to aspects of material well-being such as affordable housing needs further development.  The Center intends to develop the implications of those fundamental rights in appropriate cases. Again, no other legal services organization apparently is pursuing a mission of that scope.