More on affordable housing.

• Author: Ross, Jaimie
• Position: Letters - Letter to the editor

Regarding "An Analysis of Affordable/ Workforce Housing Initiatives and Their Legality in the State of Florida," a two-part article in the June and July/August Journal by J. Michael Marshall and Mark A. Rothenberg, the authors make important points about the need to provide affordable housing even in this a time of housing downturn, but then posit policy arguments veiled as legal claims to frighten local governments away from mandatory inclusionary housing programs.

After an exhaustive discussion of takings law, impact fees, and exactions, the authors conclude that local governments should not adopt mandatory inclusionary zoning ordinances. However, while discussing the U.S. Supreme Court cases relevant to takings, the authors fail to report that all of the taking challenges to mandatory inclusionary housing utilizing those same arguments brought against jurisdictions outside of Florida have failed. Thus, contrary to the authors' implication, the recent decision in Florida, which supports the mandatory inclusionary program in the City of Tallahassee, stands clearly within the mainstream of the takings jurisprudence throughout the country. (1)

The impact fee and exaction analysis is specious. An inclusionary housing ordinance is not an impact fee or a development exaction--it is a land use regulation, (2) one grounded in sound legal authority (acknowledged by the authors) and indeed a best practice for local governments to use whenever its exercise of land use authority increases the value of private property. This is especially true when local governments approve master planned, planned unit developments, new urbanism developments, or large scale developments that basically result in the development of mini-towns. When local governments do not have land use ordinances of general application for these types of developments, they are exacerbating the affordable housing demand and missing opportunities to promote smart growth and economically diverse communities that sustain the local economy.

Throughout the article, the authors intertwine their view that mandatory inclusionary housing programs are bad policy with their legal arguments against the policy, and it is, thus, difficult to disentangle the two. For example, the authors' support for voluntary inclusionary programs fails to mention that virtually every attempt in the country to implement such a voluntary program has failed to achieve substantial benefits. Indeed, virtually all experts...