Regulating Deregulation: Why States Should Preempt Mandatory Inclusionary Housing Programs

Authors

• Anna Bailey

Abstract

Instead of easing the housing crises that exist across the country as intended, mandatory inclusionary housing programs burden development, impeding smaller projects and stunting development that in the aggregate could alleviate housing shortages. In this Note, I argue that states should preempt local governments from imposing burdensome mandatory inclusionary housing programs because they interfere with property rights and are counterproductive in their results. The Nollan-Dolan rough proportionality test requires that land-use conditions must be related to and proportional to the problem created by the land development project. The Supreme Court’s recent holding in Sheetz v. County of El Dorado clarified that legislatively imposed land-use permit conditions are not exempt from the Nollan-Dolan test. This suggests the test’s possible application to mandatory inclusionary housing program conditions, but there is still uncertainty regarding what level of scrutiny, if any, will apply.

Likely unconstitutional, inclusionary policies are also bad policy. Until mandatory inclusionary housing programs are subject to heightened scrutiny to ensure the constitutionality of their conditions, States can and should restrict the ability of municipalities to burden developers with the cost of inclusionary housing. State preemption of inclusionary housing programs would protect property rights and incentivize local governments to address the true causes of housing shortages, such as exclusionary zoning. Preemption would create freer markets and encourage natural, market-directed solutions to housing crises.

Rights

2026 Brigham Young University Law Review

Recommended Citation

Anna Bailey, Regulating Deregulation: Why States Should Preempt Mandatory Inclusionary Housing Programs, 51 BYU L. Rev. 1753 (2026).
Available at: https://digitalcommons.law.byu.edu/lawreview/vol51/iss6/9