Exclusionary Housing Practices


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 practices” 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:

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 practices 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:

 Illegality of exclusionary housing practices

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

Among the decisions under state zoning enabling statutes are:

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 practices 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 zoning 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.

* * * * * * * * *

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 practices.