Zoning for Affordability

Harnessing the strength of the real estate market in high cost cities to support the production of affordable housing can be an important strategy to maintain economically diverse neighborhoods. A primary tool for achieving this is inclusionary zoning—regulation that incentivizes or requires market-rate developers to create affordable units. However, linking the ability to produce market-rate housing units to the provision of affordable units raises the specter of a range of legal challenges, founded in both constitutional protections of property rights and state law limits on local regulation. This article considers the legal limitations on a locality’s ability to regulate land use in order to evaluate whether mandatory inclusionary zoning can withstand legal challenge. We use New York City’s recently announced, ambitious mandatory inclusionary zoning proposal as our case study, and consider how the city might justify the policy in the face of both constitutional and state law challenges.