Putting Exclusionary Zoning in Its Place: Affordable Housing and Geographical Scale

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Introduction   I. The Local Focus of Exclusionary Zoning   II. The Spatial Dynamics of Exclusionary Zoning         A. The Needs of Lower-Income Households         B. The Problem of Exclusion Reassessed         C. Modern Forms of Exclusion   III. Rejecting an Ordinance-Centric Focus Conclusion 

INTRODUCTION

There is a conventional narrative surrounding the term "exclusionary zoning." It describes a particular phenomenon: a suburb adopting large-lot zoning or other density controls that reduce the supply of developable land, thereby driving up prices and making housing unaffordable for lower-income households. (1) This phenomenon, in turn, generates a set of familiar worries about municipalities not bearing their fair share of lower-income households and imposing the associated costs on their neighbors and in particular on the urban core. (2) This relatively parochial frame, however, misses some of the scales at which exclusion operates, and therefore the forms that exclusionary zoning sometimes takes. Expanding the frame reveals problems of exclusion not just at the local level, but at the regional and sub-local levels as well. Exclusionary zoning in its modern form is no longer limited to low-density suburbs, but now occurs also within the urban core and region-wide.

Most responses to exclusionary zoning operate only on the local scale to address the exclusion of lower-income households from suburban municipalities. (3) Most famously, the New Jersey Supreme Court, in Southern Burlington County NAACP v. Township of Mount Laurel, required municipalities to bear their fair share of affordable housing need. (4) New Jersey's legislative response has similarly focused on local governments' fair share obligations. (5) Other states also have a local focus. (6) Massachusetts, for example, gives developers an exemption from local zoning if a municipality does not meet a pre-determined affordable housing quota. (7)

These are appropriate responses to the conventional concern of exclusionary zoning, which consists of a local government using particular zoning techniques to force lower-income households into neighboring municipalities. These tactics benefit the excluding government's tax rolls to the detriment of its neighbors. But an exclusive focus on municipal-level exclusionary zoning misses other important problems, namely: access by lower-income households to public services and higher wages.

In contrast to the traditional focus on inter-local externalities, we argue here that the problem of exclusionary zoning should be viewed first and foremost from the perspective of lower-income households. (8) As a group, they have needs at different geographical scales. They need access to regions where employment opportunities are available and wages are high relative to costs of living. They need access to municipalities that offer an attractive mix of services and taxation. And they need housing opportunities in specific neighborhoods that are not isolated from core public services. Exclusionary zoning can operate in each of these spatial frames independently of one another. The long-standing focus of exclusionary zoning on the content of local ordinances, instead of on these broader exclusionary dynamics, has defined the problem of exclusionary zoning too narrowly. We aim to remedy that deficiency in our contribution to the Fordham Urban Law Journal's Fortieth Anniversary issue.

In Part I we describe traditional accounts of exclusionary zoning. In Part II, we explore the different geographical scales at which exclusion can operate and the varied forms exclusion can take. Finally, in Part III, we discuss the need for more finely-tuned judicial interventions to comprehensively address exclusion in its many forms.

I. THE LOCAL FOCUS OF EXCLUSIONARY ZONING

Contemporary concerns about exclusionary zoning are intimately bound up with Twentieth Century suburbanization. …