Introduction
New York is experiencing a severe housing affordability crisis. This crisis is driven by a housing supply shortfall decades in the making. The state’s housing shortage exacerbates economic, racial, and regional inequalities, and harms the economy by limiting growth. New York’s struggles with housing affordability reflect a national surge in housing costs since the pandemic that has disproportionally impacted communities of color. Yet, in many respects, the crisis in New York is worse than that in other states with comparably robust housing demand. The extent of New York’s housing affordability crisis has led to growing momentum behind legislative action in recent years. But so far, the New York legislature has failed to pass much needed reforms intended to stimulate housing growth.
A large body of research shows that overly restrictive local land use regulations play a significant role in constraining housing supply and driving up prices. The local adoption of exclusionary zoning practices, such as requiring large minimum lot sizes and prohibiting multifamily development, inhibits the production of enough housing to respond to demand. This problem is particularly acute in high-demand, affluent suburbs. Moreover, it tends to be intractable where control over land use decision-making is left to localities, which often have strong fiscal and political incentives to restrict development. This creates issues of collective action: while it may be rational for individual municipalities to restrict development, these restrictions in the aggregate lead to housing scarcity that substantially increases housing costs and harms the overall regional economy. In response, a consensus is emerging that state-level intervention into zoning and land use policies is needed to address exclusionary zoning’s impact on housing costs.
Exclusionary zoning practices have also been shown to generate significant inequalities and to perpetuate residential segregation by race and income. Additionally, modern-day zoning is rooted in the history of racial segregation and helped to facilitate “white flight”—the postwar movement of white people and capital from the urban core that has profoundly shaped the persistently unequal racial and economic residential patterns of American metropolitan regions. By some measures, the New York City metropolitan area is the most segregated in the nation, and stark levels of segregation are evident in upstate cities as well. New York also has a deep history, even in the recent past, of racially exclusionary suburbs and racial conflict over residential integration.
But while a number of peer states have enacted state-level land use reforms to promote housing development, New York has lagged behind. In fact, New York has some of the most exclusionary zoning in the country. Although New York law ostensibly prohibits exclusionary zoning, the so-called Berenson doctrine is widely regarded as toothless. By contrast, states with comprehensive schemes in place to limit exclusionary zoning see more affordable housing production and higher rates of new homes built than New York.
Fair housing laws prohibit racial discrimination in housing but have largely failed to reduce residential segregation by race. Although federal courts have held that zoning ordinances having a disproportionately exclusionary impact on racial minorities can in some cases violate the Fair Housing Act (FHA), fair housing laws have had a limited impact on exclusionary zoning practices in the aggregate.
A 2006 lawsuit against Westchester County challenging the lack of affordable housing in the County’s predominantly white communities promised to change that by highlighting the potential of an underutilized provision of the FHA requiring the U.S. Department of Housing and Urban Development (HUD) to “affirmatively further” fair housing (AFFH). Yet despite a historic settlement agreement requiring Westchester County to develop a significant number of affordable housing units in predominantly white communities, the effect of the mandate to affirmatively further fair housing on the scope of federal oversight over local housing policy, including land use and zoning regulations, has remained relatively limited. Although the Westchester litigation spurred the Obama administration to create a federal rule in 2015 clarifying the obligations of federal housing funding recipients to affirmatively further fair housing and creating a procedural framework to certify compliance, this rule was repealed by the Trump administration in 2020 and, at the time of writing, remains in the process of being reinstated by the Biden administration. Meanwhile, a handful of states passed their own AFFH legislation, including, in 2021, New York (New York AFFH law). In light of the impending reinstatement of a federal AFFH rule, it remains to be seen to what extent requirements to affirmatively further fair housing will act as a meaningful constraint on exclusionary zoning moving forward.
This Note examines the potential impact of the New York AFFH law as a constraint on exclusionary zoning. It also assesses, in light of the momentum behind state-level interventions into local zoning laws, how New York can strengthen its requirement to affirmatively further fair housing in order to ensure that localities are not only building more housing, but are also actively planning to increase racial and economic integration. Part I examines the federal duty to affirmatively further fair housing, its position within the FHA, and the history of its enforcement. The Part then proceeds to describe exclusionary zoning and its relationship to fair housing, and assesses New York’s exclusionary zoning jurisprudence. Part II examines the New York AFFH law, comparing it to the federal AFFH rule and a similar California law, and finding the New York law lacking both procedurally and substantively. Part III discusses the New York AFFH law as a constraint on exclusionary zoning and argues that in order to meaningfully further fair housing, the law must be strengthened by creating a private right of action, requiring recipients of state housing funding to report their fair housing progress, and more clearly defining what constitutes compliance. Part III concludes by assessing Governor Kathy Hochul’s Housing Compact, a land use reform proposal that failed to pass the state legislature in 2023. It argues that, while such proposed reforms would have represented an important step towards limiting the ability of municipalities to use their zoning powers to exclude, future state land use interventions should include a robust AFFH requirement in order to realize the New York law’s goal of creating more diverse and integrated communities.