Local Preferences in Affordable Housing: Special Treatment for Those Who Live or Work in a Municipality

Abstract

Local governments are increasingly granting preference to local residents and employees when selecting occupants for affordable housing set-asides. These preferences risk being invalidated for three reasons. First, courts could view the preferences as a penalty on nonresidents’ fundamental right to travel and migration. Second, preferences implemented with the intention of excluding protected classes of persons could violate the Equal Protection Clause. Finally, preferences could violate the Federal Fair Housing Act by creating or perpetuating discriminatory racial impacts. In order to avoid these legal risks, this Note proposes that local governments should structure their affordable housing selection programs as broadly and inclusively as possible. Specifically, local governments should: (1) offer multiple ways for an applicant to receive preference; (2) base the preferences on an expanded geographic area beyond the local government's particular jurisdictional boundaries; and (3) limit the scope and duration of the preferences.