In a suit filed Thursday, The Builders Association of Metropolitan Pittsburgh argues that the city's legislation shifts the burden of creating affordable housing from the general public to a small group — developers — and violates constitutional property rights.
The government has to provide “just compensation” in exchange for private property, it can’t simply take it. But Jim Eichenlaub, the association’s executive director, said that’s precisely what the inclusionary zoning (IZ) law in Pittsburgh does: it forces developers to pay to create affordable housing.
“Either through increased rent, increased purchase price, or the developer has to just eat those costs,” he said. “That’s a violation of private property, and that’s a taking.”
City officials were not immediately available to comment.
Bob Damewood is a staff attorney with Regional Housing Legal Services. In a recent paper, he examined the legality of Pittsburgh’s inclusionary zoning ordinance.
“I’m confident that it’s on solid legal footing,” he said.
In its challenge, BAMP asked the United States Court for the Western District of Pennsylvania to issue an injunction, essentially freezing implementation of the law in the three neighborhoods where it’s in effect — Lawrenceville, Bloomfield and Polish Hill.
Otherwise, Eichenlaub said his members are concerned the law will continue to expand through Pittsburgh and “kill market rate development.”
Instead of simply mandating the creation of affordable housing, Eichenlaub said the city should incentivize it.
Pittsburgh’s inclusionary zoning legislation provides a way to offset the cost of requiring affordable housing: developers subject to the law automatically qualify for a 10-year tax abatement, and developers who choose to create affordable housing in other neighborhoods can also avail themselves of the provision. However, all three taxing bodies, the city, Allegheny County and Pittsburgh Public Schools, have to sign off on it.
In the decades that inclusionary zoning laws have been on the books nationwide, they have faced similar federal and state challenges, said Dave Breingan. He’s the executive director of Lawrenceville United, which worked closely with city officials to implement a 2019 pilot of the law, made permanent in 2021.
He said those policies “have been consistently upheld,” and added that it’s unfortunate that the Builders Association filed a legal challenge.
“We need to build housing,” he said. “The whole ethos of inclusionary zoning is that we should be building housing for everyone. And you don’t accomplish that by stopping development.”
Eichenlaub said BAMP is concerned about the larger forces that have led to increased costs of construction — trade agreements that affect the price of lumber, rising interest rates, a lack of skilled labor — as well as individuals’ need for affordable housing.
“We’re more than willing to work with policymakers … but the way they’ve been approaching it of late, which is just pure mandates, it’s an issue,” he said. “You can’t just shift it to developers.”
Christina Howell leads the Bloomfield Development Corporation, where the expanded IZ law just took effect this month. Howell said private property rights are important, but everyone has a role to play in creating a diverse, robust housing landscape.
“If folks in the neighborhood can’t afford to live there, and you’re selling your future tenants on a neighborhood, part of it is the people that live there and create the feeling of the neighborhood,” she said.
