This Article examines the varying and often-conflicting meanings and goals ascribed to the term "affordable housing. " It asserts that the term often serves as a metaphor; it obscures rather than clarifies, and contributes to the intractability of problems pertaining to housing from any perspective. The Article further asserts that attempts to deal with what are termed affordable housing issues must realistically take into account the shelter, cultural, and economic needs of various populations, and also the effects of housing decisions on economic prosperity. Above all, the affordable housing metaphor is agreeable precisely because it defers responding to the need to make hard choices about priorities and funding.
Among proffered affordable housing goals are making available an ample supply of housing in different price ranges; attracting and retaining residents who contribute to the growth and economic prosperity of cities; and ensuring that neighborhood housing remains available for existing residents, while preserving their cultural values. Other goals include providing adequate housing in high-cost cities for low- and moderate-income individuals and families, and the overlapping concern for "fair housing" for persons of all races and backgrounds.
After considering these often conflicting goals, the Article examines the benefits and detriments of various means of providing more affordable housing, including fair-share mandates, rent control, and inclusionary zoning (including whether that leads to impermissible government takings of private property). It then briefly considers the merits and demerits of federal subsidy programs.
The Article briefly considers conceptual and practical problems in implementing the Supreme Court's 2015 Inclusive Communities disparate impact holding and HUD's 2015 regulations on "Affirmatively Furthering Fair Housing," especially in light of the 2016 elections. Finally, it discusses how the concept of "affordable housing" conflates the separate issues of high housing prices and poverty and how housing prices might be reduced through removal of regulatory barriers to new construction.
Throughout, the Article stresses that advancing affordable housing goals has both explicit and implicit costs and that goals often are conflicting. To those ends, it employs economic, sociological, and legal perspectives.
TABLE OF CONTENTS Introduction 303 I. The Diverse Goals of Affordable Housing 306 A. The Purposes of the City 306 B. Costs are Constraints 308 C. Residents of American Cities are Burdened by High Housing Costs 310 D. Affordable Housing as Conducive to Economic Prosperity 312 1. Housing Attracting and Retaining Productive Residents 312 2. Adequate Housing for Low- and Moderate-Income Families Buttresses Economic Growth 313 3. Gentrification as Conducive to Prosperity 314 4. Preservation of Existing Close-Knit Communities Can Abet Prosperity 314 E. Affordable Housing as Supportive of Existing Community 315 1. Social Capital 315 2. Gentrification as Harmful to Community 317 3. Middle or Upper-Middle Class Way of Life 319 II. Exploring Solutions to Affordable Housing Problems 322 A. Expert versus Market Decision-Making 323 B. Some Affordable Housing Issues 325 1. Is Housing a Right? 325 2. Affordable Housing and Fair Housing 326 3. Is Income Inequality in Cities Undesirable? 327 4. Should We Benefit People or Benefit Places? 327 5. Housing Affordability for Different Income Groups 329 6. Are People and Places Distinguishable? 332 C. State and Local Land-Use Mandates 333 1. Affordable Housing Fair Share Mandates 334 2. Inclusionary Zoning 336 3. Rent Control 337 4. Affirmative Use of Eminent Domain 338 5. Is Compelled Inclusionary Zoning a "Taking?" 339 D. Legislation Through Complex and Opaque Public-Private Bargains 341 E. Federal Subsidies and HUD Mandates 342 1. Federal Subsidy Programs 342 2. Proposed HUD Rule on Housing Choice Vouchers 344 3. Disparate Impact and Affirmatively Furthering Fair Housing 345 4. Affordable Housing Mandates Will be Difficult to Apply and Enforce 348 5. Conflicting Value Systems and the Idea of "Fairness" 354 F. Reducing Government Barriers to New Market-Rate Housing 355 Conclusion 358 INTRODUCTION
This Article asserts that what commonly is called the problem of "affordable housing" (1) has largely been intractable because it is a conflation of many separate societal problems and goals. Affordable housing is a metaphor invoked by diverse interest groups to define issues and choices in their favor, so that they might more effectively attempt to shape public policy.
Metaphors, according to George Lakoff and Mark Johnson, "can have the power to define reality... through a coherent network of entailments that highlight some features of reality and hide others." (2) They add that "acceptance of the metaphor, which leads us to focus only on those aspects of our experience that it highlights, forces us to view the entailments of the metaphor as being true... ." (3)
Amos Tversky and Daniel Kahneman utilized the similar organizing principle of the "decision frame," which they defined as "the decision-maker's conception of the acts, outcomes, and contingencies associated with a particular choice." (4) While the frame is "controlled partly by the formulation of the problem," it also is controlled "partly by the norms, habits, and personal characteristics of the decision-maker." (5)
In more pithy language, Cass Sunstein and Richard Thaler observed that Tversky and Kahneman "didn't care for metaphors." (6) "They replace genuine uncertainty about the world with semantic ambiguity. A metaphor is a cover-up." (7)
This Article attempts to bring "genuine uncertainty" to the fore of the affordable housing debate. It discusses how decisions about where people live, the identity of their neighbors, the types of amenities they might enjoy, and regional prosperity are interrelated in multifaceted ways. The apparently intractable shortage of "affordable housing" in many American cities results from inconsistent housing goals and the lack of a societal consensus on how to prioritize and fund the advancement of these goals. It further asserts that "affordable housing" should be defined and analyzed in a broad context, taking into account the shelter, cultural, and economic needs of various populations, as well as the effects of housing decisions on economic prosperity. This definition is broader than the more conventional emphasis on housing for low- and moderate-income families. (8) However, a broader view permits a more realistic, comprehensive, and effective approach toward housing issues.
The Article focuses on three different affordable housing goals. One is developing an ample supply of housing in price ranges that attract and retain residents conducive to the growth and economic prosperity of cities. (9) Two major problems are that governments have created extensive barriers to the creation of new housing at the behest of existing residents (10) and that the concept of "affordable housing" has different meanings for middle-class families, moderate-income families, and poor families.
A second affordable housing goal is ensuring that neighborhood housing remains available for existing residents, while preserving their cultural and other non-pecuniary values. (11) This goal is associated with resistance to gentrification in minority and lower-income neighborhoods and resistance to densification and concomitant environmental concerns in more upscale areas. More generally, neighborhood preservation often is in opposition to economic growth.
Finally, "affordable housing," in its most familiar sense, refers to the provision of adequate housing in high-cost cities for low- and moderate-income persons and the overlapping concern for "fair housing" for families of all races and backgrounds. (12) Governments have long made special provisions for housing, since the provision of physical shelter and a locus for intimate family relationships serves fundamental needs. (13) But this raises many questions, such as whether affordable housing not only encompasses safe and adequate shelter but also neighborhood integration, economic and cultural opportunity, and equal dignity. It is important to come to grips, as well, with the essential conflation of housing unaffordability and poverty. As leading urban economists have flatly stated, "a housing affordability crisis means that housing is expensive relative to its fundamental costs of production--not that people are poor." (14)
The lack of a societal consensus on the importance and priority of housing objectives tends to perpetuate the status quo. The most direct government responses to affordable housing needs, massive government housing subsidies and substantially increased residential density, are politically unpalatable. This encourages local government responses marked by a lack of transparency, logrolling, inefficiency, opportunities for favoritism, and disregard for private property rights.
In the aftermath of the Supreme Court's recent adoption of "disparate impact" analysis in fair housing determinations in Texas Department of Housing and Community Affairs v. Inclusive Communities Project (15) and HUD's subsequent promulgation of rules on "Affirmatively Furthering Fair Housing," (16) it is likely that the federal judicial and executive branches will become more immersed in local housing decisions. But that might place the federal government in the role of closely supervising local land-use practices more generally, a role it has resisted in other contexts. It is highly problematic that President Donald J. Trump or HUD Secretary Ben Carson would support this approach. (17)
Many solutions to narrow aspects of the affordable housing problem seem tenable in theory, although perhaps not in practice. Without a broad change in political will leading to a consensus on goals and priorities, more comprehensive...