Urban Lawyer

Exclusionary Zoning: State & Local Reactions to the Mount Laurel Doctrine

by Prentiss Dantzler

Prentiss Dantzler (Ph.D Public Affairs-Community Development Department, Public Policy & Administration at Rutgers, The  State University of New Jersey, at Camden) is an Associate Professor at Colorado College. The author would like to thank Robert F. Williams for his insights on previous versions of this paper. Special acknowledgements should be given to Robert Schaeffer and Julie M. Cheslik for their comments.

The effects of poverty on individual outcomes have long been a topic of social science. The intersection of land use planning and public policies aimed at addressing the growing problems of housing affordability has created much debate and concern. As the United States recovers from the Great Recession, more and more individuals find themselves relying heavily on governmentally subsidized, or affordable, housing as a last resort.1 Researchers have determined that the first constructed public housing high-rises of urban America in cities like Chicago, New York, Baltimore, Philadelphia, and Washington D.C. have had detrimental effects upon the life chances of its residents due to their placement in areas of high concentrations of poverty;2 policies concerning housing developed into complex debates about urban poverty, social isolation, and racial discrimination.3

Although public housing and affordable housing share the goal of providing suitable housing options for low- and moderate-income households, affordable housing and public housing are very different, and operate with very different structures.4 “Affordable housing” is housing that is available at a price lower than comparable market- rate housing that does not impede on more than thirty percent of an individual’s income.5 The Financial Institutions Reform, Recovery and Enforcement Act of 1989 (“FIRREA”) was enacted to “improv[e] financing for low- and moderate-income housing” through the use of the Affordable Housing Program.6 The Affordable Housing Program (“AHP”) could “be used for a wide range of purposes involving rental and homeowner housing for low- and moderate-income households” by requiring “that federal Home Loan Banks dedicate 10% of their annual net income to [AHP].”7 The funds would be an incentive for private developers to pursue such developments where needed and become “landlords” themselves through the subsidization of construction financing.8 Typically, the landlord is a private entity, either in the form of an individual, or a for- or non-profit organization. In this case, the landlord receives a subsidy by the federal government to rent to low- and moderate-income people. Their rent is decreased to make it more “affordable.”

The term “public housing” identifies subsidized low-income housing units owned and operated by the government, usually through a local housing authority serving as a management agency of the housing development (along with other social programs).9 While, in some cases, the building of the development or the development itself can be managed by a private entity; the local housing authority retains control of the housing development.10 There are other differences between affordable housing and public housing in terms of tenant selection, eligibility, and funding streams; however, for the sake of this paper, the distinction is made in order to illustrate the resistance made by local municipalities to affordable housing but not to public housing. Yet much of this resistance is due to the collective assumption that affordable housing and public housing, both governmentally-subsidized housing programs, retained similar, if not the same population; a population with limited economic means. The opposition towards affordable housing in areas outside urban cities was largely due to the issues public housing had inside these urban areas.

This resistance was sustained due to the changing nature of “who” resided in both public housing and affordable housing units. During the post-WWII era, housing became a political and social concern as returning veterans used public housing as a transient program to spring them into homeownership through the use of the GI Bill.11 Yet, programs designed to aid returning veterans were not available to other groups in American society. Included among the other groups were African-Americans still trying to climb up the economic ladder persisting through years of overt segregation and racial tension that categorized America in the 20th century.12 Many were members of the “working poor”— individuals who worked full-time, low-wage, service jobs in order to make ends meet. These individuals were largely excluded from certain neighborhoods as alternative forms of segregation persisted through the passing of Title VIII of the Civil Rights Act of 1968 at the federal level.13 The federal response combined with state and local political and social tensions created a paradox — an inconsistency in the application of federal law to solve local circumstances.

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