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.

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