Abstract:
Abstract: Inclusionary zoning ordinances, which typically require developers to set aside
a percentage of new residential units for low and moderate income households, are a popular
mechanism for ensuring the development of affordable housing in many communities.
Washington State jurisdictions have been slow to introduce inclusionary zoning—particularly
mandatory set-asides—perhaps because of the legal battles they would face. The Washington
State Supreme Court previously relied on RCW 82.02.020 (the “tax preemption statute”) to
invalidate a low-income housing ordinance in San Telmo Associates v. City of Seattle1 and in
R/L Associates, Inc. v. City of Seattle.2 Washington courts have also relied on a unique and
complex takings analysis to invalidate low-income housing and manufactured housing laws
on grounds that they constituted a “taking” of private property or a violation of substantive
due process under the U.S. Constitution, or in some cases, under the Washington State
Constitution. This Comment argues that inclusionary zoning is authorized by RCW
36.70A.540,3 the Affordable Housing Incentive Programs Act, which expressly amended the
tax preemption statute and permits both voluntary and mandatory inclusionary zoning
programs. This Comment explores the differences between the federal and Washington
takings analyses and argues that the Washington State Supreme Court should abandon its
unique tests in favor of the federal approach as articulated in Lingle v. Chevron U.S.A., Inc.4
Finally, this Comment explains why mandatory set-asides are constitutional under both
federal and Washington takings law.
