ABSTRACT
Though all zoning is by definition exclusionary, some is more exclusionary than others. Some blatant examples are given in Chapter 3, and there are references to more in several other chapters. In this chapter, the focus is on measures to combat exclusionary zoning and to facilitate, through the zoning process, the building of affordable housing.1 The first part of the chapter is devoted to governmental attempts to legislate against exclusionary policies. Though a separate “policy area” from land use regulation, the federal legislation designed to prevent, or at least to discourage, discrimination operates alongside efforts to make land use controls nondiscriminatory. This has assumed greater importance in recent years. However, it is a large and complex field of law which cannot be adequately dealt with here, and only a brief reference is possible. Particular attention is paid to the renowned Mount Laurel cases, in which the powers of the judiciary to enforce the provision of affordable housing were stretched to the limit. This was a New Jersey case and therefore does not have the “universality” of a U.S. Supreme Court opinion, but it is of particular interest in demonstrating the extent to which the courts can (and cannot) impose their views on local and state governments. Finally there is a discussion of the inclusionary and “linkage” policies followed by a number of municipalities. These are mechanisms available to local governments to encourage, or even compel, the provision of affordable housing by private developers. This raises some difficult questions about the “sale” of development permissions. As with so
many similar issues, there are no easy answers, and continued debate can be guaranteed.
