Stewart E. Sterk, Incentivizing Fair Housing, 101 B.U. L. Rev. 1607 (2021). Abstract below:
Restrictive land use regulation has thwarted the upward mobility of many
Americans, particularly Americans of color. Local restrictions imposed by
affluent municipalities have limited access to safe neighborhoods, better
housing, and good schools. Racism and economic self-interest have both played
a role in exclusionary practices which have contributed to high housing costs
that place a strain on the entire economy.
Fair Housing Act litigation has been one weapon in the fight against these
practices. Despite the Supreme Court’s decision in Texas Department of
Housing & Community Affairs v. Inclusive Communities Project, Inc.,
disparate impact litigation faces significant obstacles that limit its value as a
tool to fight exclusionary zoning. First, because restrictive zoning ordinances
have such widespread economic effect, it will generally be difficult to prove that
their impact on members of protected classes is disparate. Second,
municipalities are likely to have successful defenses against disparate impact
claims arising from restrictive zoning—including the “business necessity”
defense that zoning restrictions are necessary to minimize the tax burden on
local residents. Third, litigation sets up an adversarial dynamic that leads
municipalities to resist housing initiatives rather than embracing them.
By contrast, incentives are better calculated to induce local cooperation in
the development of fair housing. The Department of Housing and Urban
Development made some use of incentives during the Obama Administration,
but those efforts were not ideally designed to promote buy-in by recalcitrant
municipalities and were abandoned during the Trump Administration. States,
however, are well positioned to use the real property tax system to create
substantial incentives for municipalities to abandon exclusionary practices.
Using tax incentives rather than mandates would enlist municipal self-interest
as a weapon against exclusion.
Poverty Law 