Article Title

A Response to William A. Fischel

Publication Title

Washington University Journal of Urban and Contemporary Law


This response paper addresses Dr. Fischel's critique of four points about the American Planning Association's (APA) amicus curiae brief: (1) The APA is not concerned about the overall impact of growth management systems that restrict the pace of development and therefore boost the cost of housing on a metropolitan basis; (2) a monetary damages remedy for an interim taking from excessive land use controls is a better solution than the "builder's remedy," which is court permission to allow the plaintiff/ developer to construct a housing project in which housing units are set aside for low- and moderate-income persons; (3) mandatory inclusionary zoning allows communities, once they have fulfilled their fairshare objective, to act in an exclusionary manner toward market rate development; and (4) exclusionary zoning is somehow justifiable because everyone does it.