Stewart E. Sterk (Cardozo), Incentivizing Truthful Housing, 101 B.U. L. Rev. 1607 (2021):
Restrictive land use regulation has thwarted the upward mobility of many People, notably People of coloration. Native restrictions imposed by prosperous municipalities have restricted entry to protected neighborhoods, higher housing, and good faculties. Racism and financial self-interest have each performed a job in exclusionary practices which have contributed to excessive housing prices that place a pressure on your entire economic system
Truthful Housing Act litigation has been one weapon within the combat towards these practices. Regardless of the Supreme Courtroom’s resolution in Texas Division of Housing & Group Affairs v. Inclusive Communities Challenge, Inc., disparate influence litigation faces important obstacles that restrict its worth as a instrument to combat exclusionary zoning. First, as a result of restrictive zoning ordinances have such widespread financial impact, it’s going to usually be tough to show that their influence on members of protected courses is disparate. Second, municipalities are prone to have profitable defenses towards disparate influence claims arising from restrictive zoning—together with the “enterprise necessity” protection that zoning restrictions are obligatory to attenuate the tax burden on native residents. Third, litigation units up an adversarial dynamic that leads municipalities to withstand housing initiatives relatively than embracing them.
In contrast, incentives are higher calculated to induce native cooperation within the growth of honest housing. The Division of Housing and City Improvement made some use of incentives throughout the Obama Administration, however these efforts weren’t ideally designed to advertise buy-in by recalcitrant municipalities and have been deserted throughout the Trump Administration. States, nevertheless, are nicely positioned to make use of the true property tax system to create substantial incentives for municipalities to desert exclusionary practices. Utilizing tax incentives relatively than mandates would enlist municipal self-interest as a weapon towards exclusion.