This guidebook to inclusionary housing includes a high level overview of the legal issues and key federal and state court opinions that influence the design of local inclusionary housing ordinances. View guidebook
Inclusionary housing programs generally rely on a local government’s power to regulate land use. While the right of government to use its zoning power in this way has been established and upheld for generations, this is still a rapidly evolving area of law. Recent federal court decisions have limited zoning power in ways that don’t prohibit most inclusionary housing programs but can influence how they are designed.
The Lincoln Institute of Land Policy’s report “Inclusionary Housing: Building More Equitable Communities” includes a detailed review of the relevant case law by Ben Beach which concludes:
State and federal courts have repeatedly upheld inclusionary housing measures, which have been adopted by hundreds of jurisdictions across the country. While some state laws have substantially limited the options available to local policymakers, in any jurisdiction there is almost always a path to an effective, legally defensible inclusionary policy.
In addition to federal legal considerations, state law can impact the design of inclusionary housing in significant ways. Three states (Texas, Arizona and Tennessee) have laws which prohibit mandatory inclusionary zoning, but in all three states, voluntary programs that offer incentives in exchange for affordable housing units can be successfully implemented. Oregon had a similar prohibition, which was repealed in 2015. In several other states, courts have interpreted prohibitions on rent control as preventing inclusionary programs from requiring affordable rental units, though many programs in these states have successfully adapted to these rulings by relying instead on linkage fees.
Policymakers interested in adopting inclusionary housing policies must work closely with legal counsel to design a program that anticipates potential challenges under federal or state law.
Inclusionary Zoning State by State
(Hollister, Timothy S., Allison M. McKeene, and Danielle G. McGrath. 2007. Washington, DC: National Association of Home Builders.) This study by the National Association of Home Builders is the most comprehensive survey of state laws and policies that encourage, prohibit, or otherwise impact the design of local inclusionary housing ordinances. View Study