Washington Law Review


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 Seattle and in R/L Associates, Inc. v. City of Seattle. 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. Finally, this Comment explains why mandatory set-asides are constitutional under both federal and Washington takings law.

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