Navigating Preemption during COVID: Four Steps Cities Can Take to Increase Affordable Housing

Since March, the landscape of housing stability has changed drastically for many residents because of the novel coronavirus. More than 44 million residents have filed for unemployment, 20 million residents are still out of work, 20 million renters are at risk of evictions, and the nation has entered into an economic recession.

Inequities in housing, prior to this public health crisis, have magnified the current state of housing instability. The National Low Income Housing Coalition reports 71% of the nation’s extremely low-income renters are severely housing cost-burdened. People of color, Black households, Native American or Alaska Native households, Latinx households, and Asian households are more likely to be extremely low-income renters than white people. Black and Latinx households account for 26% and 21% of all renter households with extremely low income.

Worsening these findings, states do not have an adequate supply of affordable and available homes, cities have more than $14 billion in additional housing needs and cities are making significant cuts, due to the pandemic, to housing and community development programs.

Budgetary cuts to housing and community development programs pose risks for residents to remain safely housed and slow the production and preservation of future affordable housing.  As this pandemic demonstrates, without housing and the ability to afford housing, residents are at risk of contracting the novel coronavirus, acquiring an eviction, or falling into homelessness.

In addition to funding needed for residents to access shelters and remain in their homes long after COVID-19, cities need to have access to more tools to develop and preserve safe, quality and affordable housing.  Source of income protection, inclusion zoning, housing trust fund, and rent control are tools that can help housing either remain affordable or assist in the development and preservation of safe, quality and affordable housing. Unfortunately, many cities are prevented from accessing these tools because of regulations that stem from state preemption.

What is preemption?

Due to state preemption—when the state supersedes the authority of lower levels of government—states have prohibited many cities, towns and villages from being able to implement housing policies to effectively respond to local housing markets. For instance, six states currently have preemption inclusionary zoning programs, twenty-nine states preempt rent control, and two states preempt source of income nondiscrimination ordinances. Not only does such preemption limit how a local government can respond, but it directly impacts its residents, disproportionally affecting low-income communities and people of color. Colorado, a state with rent control preemption, has left nearly half of Colorado renters, mostly women of color, with rent burdens.

Preemption, however, is not an inherently good or bad thing. In fact, in housing, preemption has frequently been used to set “floors” or a minimum standard that localities are able to build on. During the civil rights movement, housing policy preemptions through the Fair Housing Act set a minimum standard that legally protected nondiscrimination in housing.

While preemption has been used to set “floors”, it also sets “ceilings”. Ceilings occur when a state sets a standard and does not let localities tailor it to their needs. For example, of the six states that preempt inclusionary zoning, two do not expressly permit voluntary programs. When a state government enacts a ceiling preemption and creates no statewide standard of its own, it ultimately creates a “vacuum preemption” that leaves cities without any response to the housing crisis. This represents the misuse and abuse of preemption.

Housing preemption in recent years has received increased attention. In 2019, a preemption bill passed in Florida that targeted local zoning decisions and in that same year, Oregon set a statewide rent control policy.

These policies matter because they have consequences. The Urban Institute, in a series examining preempted policies, found inclusionary zoning can increase economic opportunity for low-income residents and rent control can provide residential stability.

What is next for cities?

Cities have options to pursue affordable, equitable housing, even in the face of preemption.

Cities can pursue voluntary programs. In the instance of inclusionary zoning, four of the six states expressly permit voluntary programs. In other states, local leaders are considering how to use discretionary spending to support community organizations that can do what the municipalities are preempted from doing.

Cities can demand state and federal action to create housing that is safe, high-quality and affordable.  Three strategies cities can pursue to push back against state interference include communicating with residents about state interference, building coalitions, and pursuing legal challenges when necessary. Each of these strategies are discussed in depth in NLC’s Restoring City Rights in an Era of Preemption. As states weigh housing preemptions or consider their overreach, these tactics can be useful to local leaders seeking to advance local decision-making in the pursuit of affordable and equitable housing.

Local leaders, as part of these coalitions, can always turn to their state leagues who are on the front lines fighting to advance the interests of cities, towns and villages. The Florida League of Cities, who is currently facing battles such as the housing preemption bill, has created a toolkit of Home Rule and Civics Education resources and the Arkansas Municipal League launched a “Be Local. Be Heard” campaign website.

Local leaders can also review NLC’s Principles of Home Rule for the 21st Century. The principles articulate a comprehensive, affirmative vision of local decision-making reform that states can pursue.

Without more options to produce and preserve affordable housing, cities, towns and villages will continue to bear significant burden of the nation’s housing crisis that continues to worsen as a result of the outbreak of the novel coronavirus.


About the Authors

Lauren Lowery is the Program Director for Housing & Community Development at the National League of Cities.




Spencer-Wagner-small.jpgSpencer Wagner is the Program Specialist with NLC’s Local Democracy Initiative. His research focuses on state preemption of local policy and its impacts.