Exclusionary Zoning’s Confused Defenders

I have a new paper out. Here’s the abstract (with a little more commentary below)

Abstract

In both economic and legal scholarship, a broad consensus has formed that zoning and other land use laws and regulations in our richest and most productive regions have become too strict. Land use laws, in both suburbs and downtowns, have made it too hard to build housing in the areas with the most demand, leading to high prices and excluding many possible migrants. The lack of housing growth in our richest regions has created huge economic losses, as workers cannot move to the regions where they would earn the highest wages. Local land use regulations that limit housing growth also contribute substantially to economic inequality, racial and economic segregation, homelessness, and greenhouse gas emissions. But scholars abhore consensus, no matter how much empirical evidence piles up in favor of it. In the last few years, several legal scholars have written articles challenging the scholarly consensus in favor of zoning reform. This Article reviews their arguments and finds that the consensus …. has little to fear. Some of their criticisms are recycled versions of old theories, failing to consider huge changes in land use policy since the 1980s. These arguments also put a bizarrely heavy normative weight on the expectations of property owners about the built form of their neighborhoods, without providing a clear justification for doing so. Others display an undeclared but intense conservatism, viewing changes in development patterns as a cause for fear rather than as opportunities for growth and reform. The critics each uncritically embrace the regulatory authority of local governments, while minimizing the demonstrated harms this power can have on economic growth, the environment, and racial and economic equality. These critics fail to see that local regulation is fundamentally different from national-level regulation due to its capacity to not only regulate behavior but also who can enter and reside in jurisdictions and places. The Article concludes by assessing what effect a post-pandemic increase in working-from-home (WFH), due to technologies like Zoom and Slack, would have on the case for land use reform. It argues that, if it does increase substantially, the form WFH takes will have a big effect on which cities gain and lose (i.e. whether it is fully remote, hybrid or something else). However, unless things change extremely radically, zoning in rich cities and regions will remain a very substantial economic problem. Further, a world with more WFH would make zoning reform more pressing in one particular way. WFH may give the highest income workers even more of an opportunity to isolate themselves in low tax, high service quality jurisdictions, and to use land use regulations to ensure that no one else can rely on their property tax base to pay for local services.

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The basic story of the piece is that among legal scholars and economists, and increasingly among national level political figures, agree that zoning has become too strict in the last 30 years in our richest and most productive regions. Further, there is widespread agreement that state governments (and the feds too) need to step in and do something to limit the powers of local governments to exclude new residents.


But now there are a few critics, who dub this agreement the “elite” or “neoliberal consensus.” However, these critical arguments are deeply, deeply flawed. If these pieces are what “constitutes a critique of the “elite consensus” in favor of zoning deregulation, the elite consensus should be just fine.”


Some critics repeat arguments made in the 1970s and 80s, before land use policy started have the effect of increasing housing prices and limiting growth at the regional level. They ignore the fact that the very scholars who they borrow from, like Bill Fischel, have acknowledged that post-1980s zoning has created very serious economic substantial problems.


Further, the critics of zoning reform make left-wing noises, but some express *deeply* and unexamined conservative views. They are skeptical of redistribution and migration. They are even more skeptical of change, viewing any movement from the status quo of where people live as something to be feared and resisted, rather than embraced. As I put it in the paper, “To invert Disraeli, one might say that these authors might be Whiggish or even Social Democratic men, but they have written an arch-Tory paper.”


Other critics embrace local control to an extent they ignore the actual outcomes of policies or allocations of power. To justify local control, their fixed north, they make strange and inconsistent empirical claims about the likely effects of housing liberalization. One can favor local control is some contexts but still be skeptical of unconstrained local control over zoning. “The case for state-led zoning reform is not that local authority is necessarily synonymous with “defensive, land-use based localism.” Instead, it is that ADU bans or limits on apartment construction are examples of “defensive, land-use-based localism.”


Critics make “gesture[s] towards egalitarianism. But all end up implicitly defending the ability of existing residents in the richest, most exclusive places on the planet—places like Darien, Connecticut, or Atherton, California—to keep out apartment buildings and limit change.”