2017] CITIES, INCLUSION AND EXACTIONS 2147
approach encourages the private production of new affordable housing that
is geographically and economically integrated.3
Although increasingly widespread, the propriety of inclusionary zoning
under the U.S. constitutional doctrine that governs local land use and
individual property rights is still somewhat unsettled; the way in which the
rights and governmental exercise of authority are framed shapes different
answers to whether an inclusionary zoning ordinance is valid.4 This ambiguity
presents two unresolved questions. The first question is whether private
developers, by being asked to include units of low- to moderate-income
housing in market-rate developments, are being asked to do something
extraordinary that unfairly impinges on their property rights—especially
when it is costly, either financially or in terms of the upscale image or message
that a developer wants to sell.5 The second question is whether developers are
asked to do something both ordinary and consistent with land use regulation
because inclusionary zoning promotes uses of land that improves the general
welfare of the populace by ensuring housing types that meet the variety of
residents’ needs. Tailoring housing types to differing abilities to pay is
particularly appropriate considering land use regulation’s history of
exclusionary zoning and its pernicious effect in facilitating segregation.6
For the most part, there have been relatively few successful challenges to
inclusionary zoning ordinances.7 This is likely so because developers have still
found it lucrative to fulfill inclusionary zoning requirements and build
profitable residential developments.8 Some developers even consider it the
right thing to do.9 Also, local governments have mostly been careful in
3. Id. at 1.
4. Tim Iglesias, Fra ming Inclusionary Zoning: Exploring the Legality of Local Inclusionary Zoning
and Its Potential to Meet Affordable Housing Needs, ZONING & PLAN. L. REP., Apr. 2013, at 1, 4 (arguing
that the way the ordinance is framed, as an ordinary land use regulation or a permit with
conditions, affects state courts’ receptiveness to either uphold or strike down inclusionary zoning
5. See Is Inclusionary Housing the New Normal for High-Cost Places?, HOW HOUSING MATTERS
(Mar. 5, 2015), http://howhousingmatters.org/articles/is-inclusionary-housing-new-normal-high-
cost-places (“Courts have overturned inclusionary zoning ordinances in some communities,
ruling that they are illegal forms of rent control.”).
6. See John Mangin, The New Exclusionary Zoning, 25 STAN. L. & POL’Y REV. 91, 91 (2014)
(“Decades of scholarship—legal and sociological—outline how [zon ing] policies left low-income
families stranded in faltering cities whose abandonment by suburban homeowners-to-be at least
left behind a large supply of low-cost housing.”).
7. See Igles ias, supra note 4, at 7–9 (describing the various types of legal challenges to
inclusionary zoning ordinances, few of which have been successful).
8. See Nicholas J. Brunick, Inclusionar y Housing: Proven Success in Large Cities, ZONING PRAC.,
Oct. 2004, at 1, 3 (finding, in one city, that “[n]ew housing development continues to boom . . .
and development projects remain lucrativ e, even with the affordable unit set-aside requirement”).
9. See URBAN INST., EXPANDING HOUSING OPPORTUNITIES THROUGH INCLUSIONARY
ZONING: LESSONS FROM TWO COUNTIES 18 (2012) (“Because [Moderately Priced Dwelling Units
(“MPDU”)] are required in nearly all developments and subdivisions in Montgomery County,
developers think it is fair.” (footnote omitted)); see also id. at 24 (“Some developers have even
expressed pride in their involvement with the MPDU progra m. They agree that MPDUs are