Term Paper: Affordable Housing and the Use of Exclusionary and Inclusionary Zoning

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AFFORDABLE HOUSING & THE USE OF EXCLUSIONARY AND INCLUSIONARY ZONING

In the past few decades, the lack of affordable housing in the United States has emerged as a crisis effecting low-income residents, government agencies and municipalities, and real estate developers alike. The lack of available affordable housing has increased in the past few years, as a result of zoning ordinances and governmental zoning powers that are supported and upheld by the courts. While there are no immediate solutions to this problem, a number of legal scholars have examined the relevant cases and have written extensively on the subject. Affordable housing is defined in the legal context as housing for which the mortgage or rental payments, related taxes, insurance and utilities, do not exceed thirty percent of gross annual income. This lack of affordable housing has driven property costs to record highs, making housing almost unaffordable for even moderate income families. However, low-income families are impacted the most by this crisis, which has created additional problems for poorer neighborhoods. Some of these additional problems involve lowered economic and educational opportunities, high crime and dangerous neighborhoods, and health problems related to overcrowding. As a result, a lack of affordable housing has contributed greatly to the economic and social problems prevalent in low-income communities around the United States.

The lack of affordable housing started out as a smaller problem that has gradually increased over the last thirty years. When land was first being developed in the United States, there was an abundance of it, and people made their homes where they wanted. Land during this period was readily available and was not subject to zoning ordinances or overcrowding issues. As cities began to grow, more people made their homes in the suburbs, where land development and construction costs were actually cheaper and families could purchase large parcels of land for very reasonable prices. In the 1980s, however, the United States experienced a decline in homeownership and homeownership opportunities as a result of an increase in the number of low-income families and a decrease in the amount of available affordable housing.

The issues surrounding the lack of affordable housing are attributed mostly to the high property costs as a result of zoning ordinances that attempt to preserve the status quo. There are hidden agenda's behind this rationale of "preserving the status quo" of certain neighborhoods. Many governments and municipalities do not want to deal with lower-income residents and the problems that they bring to the affluent areas, such as lowering property values, increasing crime rates, and driving out more affluent families. As a result of segregated neighborhoods, most of the lower-income residents are not given the same opportunities as residents living in the suburbs, such as better employment opportunities and higher quality education. As a result, these low-income residents are forced to stay in the inner cities, and their chances do not improve, resulting in a cycle of poverty. This paper will discuss affordable housing, and why it is needed, and will determine the legal bounds of the zoning power given to governments and municipalities. It will also provide an explanation of the law behind exclusionary and inclusionary practices and the legal issues raised by these zoning ordinances. It will also discuss the state of the current law as it applies to affordable housing, and will conclude with a discussion regarding the social and economic impacts raised by exclusionary and inclusionary zoning.

History of "Affordable Housing"

Affordable housing has an early conception that is much related to the history of racial segregation in the United States. In the United States, segregation and the Civil Rights movement laid the foundation for what is termed "affordable housing" and the background of current zoning laws. The concept of affordable housing developed over a lengthy period of time; prior to 1900, African-Americans were scattered throughout white neighborhoods. After World War I and II, African-Americans began to move north into industrial areas and redevelopment projects and public housing programs were implemented to create segregated towns. The first segregated towns and small cities were created by zoning ordinances that divided streets by race, legalized by the use of racially restrictive covenants between private individuals. Even after racial segregation was invalidated, segregation by neighborhoods and housing still existed.

Several government agencies attributed to segregated neighborhoods, by means of discriminatory loan processes and improper implementation of other housing laws. The Federal Housing Administration (FHA) used a rating system called "red-lining," to evaluate the risks associated with loans made to homeowners in certain neighborhoods. The rating system consisted of four categories, the first category being good areas that were in high demand and the fourth rating consisting of poorer neighborhoods where rent was cheaper. The FHA had the sole discretion of whether or not to provide housing loans for applicants, and used this power in such a manner that FHA officials thought would maintain the exclusivity and high rank of upper class neighborhoods. The majority of the loans made to homeowners by the FHA were to upper class whites moving into an upper class neighborhood. Between 1930 and 1950, three out of five homes purchased in the United States were financed by the FHA, yet less than two percent of the FHA homes were made to non-white home buyers. As a result of this discriminatory loan process by the FHA, minorities and African-Americans were prevented from moving into white upper class neighborhoods and had no choice but to remain in the poorer neighborhoods. The consequences of this type of segregation by the FHA led to a lack of capital in inner city communities, segregated minority neighborhoods, and a lack of affordable housing.

The Housing Act of 1937 established a public housing program that clustered many low-income residents together. Public housing programs provide housing that would otherwise not be available for low-income residents, but display the same kinds of segregation problems that the FHA caused. For example, public housing programs placed many low-income residents in the same area, allowing for segregation on a racial level. In addition, these poorer areas become high crime areas with a negative public image. The majority of these programs offer public housing in areas of the inner city, where the schools and jobs are worse than in other locations. The combination of these issues resulted in a group of people, usually minorities that became segregated as a result of where they live, go to school and work. The actions of the Department of Housing and Urban Development (HUD) also historically attributed to segregation, demonstrated by a New York class action brought against a local Section Eight program and federal and state programs. In this case, the court ruled in favor of the tenants, holding that they were not properly informed that they could use their subsidies in other neighborhoods and the availability of rent exceptions. Thus, the history of the zoning ordinances was shaped in large part by the early actions of governmental housing agencies.

Background of Zoning Laws and Zoning Power

The background of the zoning laws in the United States goes back to 1926, where the Supreme Court first approved the use of zoning, designating certain areas of land for residential, commercial and industrial uses. Zoning is defined as the division of land into zones and the regulations of the character of the land usage within these zones. Before the advent of zoning, land use was restricted through private contracts between parties regarding how certain land and overlapping land would be used. The use of private contracts was efficient for some types of land use that were easily negotiable, but did not work for other uses, such as where a nuisance was viewed as a land use restraint. As a result, laws were formed regarding the use of private contracts, and the sentiment emerged that land restrictions use restrictions were a public responsibility. The early zoning laws were formed with the goals of regulating harmful land uses in residential areas, protecting property values, and controlling development so that property could be adequately and efficiently served by governmental facilities.

The local power to regulate land use has also been limited by statute. Beginning in the 1960's, Congress and state legislatures started to recognize the disastrous effects that unfettered local discretion can have on racial integration, the environment and the provision of affordable housing. Federal and state laws, especially state mandated local planning laws and fair housing laws, placed significant limitations on local power to exclude housing, balancing the need for affordable housing and equal opportunity with the need for local decision making. Generally, these laws not only restrict exclusionary or discriminatory land use policies, but also require communities to affirmatively plan for inclusion of affordable housing. After the 1960s, zoning ordinances and laws became more common, and the impacts felt by them slowly emerged accordingly.

The powers granted by zoning are problematic due to the depth and elasticity of the police power that provides local governments with broad discretion to determine use and development of the finite supply… [END OF PREVIEW]

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