In December of 2018, Miami passed an ordinance—the first of its kind in the city—mandating the inclusion of affordable housing in new developments in certain neighborhoods. The city claims the highest share of rent-burdened residents in the country, and the inclusionary zoning ordinance was intended to address the city’s severe shortage of affordable housing. But the city was quickly stopped in its tracks: At the end of June, Florida’s governor approved a law banning municipalities from passing mandatory inclusionary zoning ordinances, sending Miami’s city councilors back to the drawing board.
In the midst of an ever more acute renter crisis, local governments are increasingly experimenting with new ways to keep residents housed: Measures to raise revenue for affordable housing or increase tenant protections appeared on the ballot in 24 United States cities in November of 2018, and many of them passed. As progressive cities are stepping up, though, conservative state legislatures are blocking necessary reforms. Florida’s bill is just the most recent attempt by a state to limit cities’ affordable housing toolkit. In total, at least 35 states currently enforce some limitation on cities’ ability to protect or create affordable housing, whether by preventing them from enacting rent control and anti-discrimination measures, mandating inclusionary zoning, regulating short-term rentals, or some combination of these measures.
The use of such legislation—called “preemption” laws—to protect landlords and developers at the expense of tenants is not new. Starting in the 1970s, as rent control policies became increasingly popular across the country, one state after another passed legislation preventing cities from enacting it. Currently, 31 states ban rent control. Some of these bills, while not addressing zoning explicitly, have been interpreted by courts as bans on inclusionary zoning ordinances as well.
In the past decade, especially following the Republican Party’s 2010 electoral takeover of state houses, preemption legislation has become an increasingly common method for conservatives to secure control over a range of issues of concern, from minimum wage laws to plastic bag bans. On housing policy, state legislators have set their deregulatory ambitions beyond rent control. “This tug of war over the distribution of power among federal, state, and local governments certainly isn’t new,” says Ben Winig, vice president of law and policy at ChangeLab Solutions, which advocates for equitable policy. “But we have absolutely seen in recent years a significant increase in the use of state preemption to curtail local governments’ ability to address their housing needs.”
As of 2017, at least 11 states had adopted laws that prevent localities from enacting mandatory inclusionary zoning or limit their ability to develop voluntary inclusionary zoning policies. Last year, Wisconsin joined the list and Tennessee made its ban even more stringent; similar legislation was under consideration in Hawaii and Louisiana, where it has so far stalled. In recent years, several states have also adopted legislation preempting cities from regulating short-term rentals, which have exploded across the country, and have, by taking units off the market for full-time residents, driven up rents in the remaining housing stock.
In Texas in 2015, state legislators passed a statute banning cities from enacting laws prohibiting discrimination against those using government assistance vouchers to pay their rent, which the city of Austin—where a 2012 survey found that only 6 percent of all units surveyed were open to voucher holds—had recently passed. Indiana followed in 2017, becoming the first state in the country to ban municipalities from enacting regulations on rent control, inclusionary zoning, short-term rentals, and source of income discrimination all at once.
A proposed bill that was ultimately put on hold in Arizona’s most recent legislative session would have prevented municipalities from enforcing any new rules governing landlords. The original version of the bill would have voided all existing local regulations on landlords too.
“It’s really comprehensive,” says Kim Haddow, the director of Local Solutions Support Center, an organization that works to counter preemption law. “If you look at all the areas that are being preempted around housing, it all adds up to a battle over who gets to live where and under what conditions, and how much they’re charged to live there.”
But as state legislatures have revved up efforts to control local housing policy, efforts have mounted to take back local control.
In California last year, a measure to repeal the state’s long-standing preemption of rent control made it onto the ballot, where it failed by 20 percentage points after the real-estate industry outspent supporters 3–1 and launched a $76 million campaign against it—but it could be on the ballot again in 2020, or even pass sooner through legislative procedure. A similar bill made it before the state senate in Colorado last year, and a campaign is under way to repeal Illinois’ rent control preemption bill too.
While advocates say that these particular efforts are crucial to addressing the housing crisis, they are more ambivalent about the place of preemption law in the broader affordable housing playing field.
“Housing is one of these areas where we have this very clear history of local control being used for racially unjust ends,” notes Ben Beach, legal director at the Partnership for Working Families, a national network of advocacy organizations. “Housing is definitely an area where we feel it is important to not attach to the concept of local control as paramount.”
Many cities, when given the opportunity to expand tenant protections and affordable housing, have failed to take it, instead embracing highly exclusionary zoning policies that have kept lower-income residents out. In cities like San Jose, California, Sandy Springs, Georgia, and Charlotte, North Carolina, nearly all residential land is zoned for single-family homes, despite the fact that inclusionary zoning is permitted.
Recognizing that simply allowing cities to develop affordable housing is often insufficient, some states are beginning to go a step further. The last legislative session brought the first state law requiring cities to enact more inclusive zoning: In Oregon, cities with more than 25,000 residents are obligated to allow up to fourplexes in what are currently designated as single-family neighborhoods. The state also enacted the country’s first statewide rent control bill.
“There are some instances where it’s really important that the state set the ground rules and have a minimum standard statewide,” says Nestor Davidson a professor of real estate and land use law at Fordham University. “It’s appropriate for states to say that there’s a baseline on questions of equity and inclusion that we shouldn’t let local governments fall below.”
Beach is hopeful that the pendulum is swinging toward states using their authority to advance equity, rather than stopping cities from doing so. He notes that the only preemption law limiting inclusionary zoning to successfully pass last year was Florida’s ban. As many cities continue to push back on the housing policy status-quo, it’s unclear if the trend will hold.
