Local Control of Land Use: A Partial Defense

The Perils of Land Use Deregulation, my intervention in the land use/housing debate, has now been published by the University of Pennsylvania Law Review. This article has already attracted some critical attention, including by others on this blog, and—as with all things housing-related these days—the disagreement can be sharp. No one will mistake an 80-page article on land use for a tweet. But I suspect hot takes are inevitable because I challenge the anti-zoning consensus by arguing that the current reformist emphasis on centralizing land use authority and deregulating land use markets is a strategic mistake.

Those arguments are well-rehearsed in the article. In this post, I want to make three ancillary points about the politics of land use reform, with some thoughts about anti-zoning’s future.

The first point is that single-family zoning is extremely popular. Critics of exclusionary single-family zoning (and I am one of them) regularly identify it with racial segregation and economic hording, a tool used by rich white people to flee integration and redistribution. But in a recent research note, Jessica Trounstine finds that all demographic subgroups favor single-family housing over apartments by far margins—not just rich white people who already live in suburban settings. “No one is enthusiastic about zoning except the people,” wrote Richard Babcock in his 1966 book The Zoning Game. Constance Perin, in her classic Everything in its Place: Social Order and Land Use in America, written in 1977, similarly observed how culturally embedded single-family, low-density land use was (and still is). For better or worse, the American dream of the single-family home continues to shape our metropolitan areas. The desire to own such a home and the government policies designed to facilitate that ownership are of-a-piece with a long-standing American anti-urbanism.

Nevertheless, the popularity of low-density development undermines one of the chief justifications for overriding local land use laws: that they are unrepresentative and anti-democratic. Critics may still believe that single-family zoning is undesirable for many reasons. But asserting that it is contrary to popular preferences is likely to invite skepticism.

My second point is related to the first. When land use reform fails to lower housing costs substantially or solve all of the other multiple problems attributed to zoning (and my view is that it will effectively do neither), the political backlash is likely to be fierce. Many anti-zoners acknowledge that eliminating barriers to construction of market-rate housing isn’t alone sufficient to provide affordable housing, especially to low- and moderate-income families; indeed, studies have shown that market rate construction can raise nearby rents. Nevertheless, market deregulatory policy and rhetoric tend to dominate YIMBY (Yes-in-My-Backyard) discourse—often alienating middle- and working-class suburbanites as well as residents of lower-income urban neighborhoods. Even after the elimination of single-family housing, those groups are likely to still experience gentrification pressures in high demand locations without significant countervailing housing price declines unless much more is done to de-financialize the housing sector. But deregulating land use does the opposite.

There will be a great deal of disappointment if the benefits of land use reform seem to accrue to the already well-off, in the form of marginally lower prices in otherwise high-rent districts. The reassertion (with a vengeance) of local zoning authority will likely follow—and quickly. The history of past centralized land use reform efforts (in New Jersey especially) suggests that those citizens who favor low-density development (and it appears that most all of them do) tend to defend and preserve it at the end of the day. A California initiative to reverse recent state laws that preempt local land use authority is already making its way toward the ballot.

This leads me to a final point. In the current anti-zoning moment, housing and racial justice progressives have sometimes made common cause with libertarian or market-oriented policy advocates by treating government regulation as the central villain. But progressives are walking into a trap. At a time when a conservative Supreme Court is eyeing the demise of the regulatory state, the attack on zoning presages a broader attack on all government regulation. The Court’s property rights jurisprudence has recently been used to undermine important labor protections for agricultural workers. That jurisprudence can also be deployed to invalidate inclusionary zoning laws, rent control, eviction moratoriums, affordable housing linkages, discriminatory siting protections, and other policies intended to increase housing affordability or protect low-income tenants and minority neighborhoods.

These kinds of policies are often unpopular with market-oriented land use reformers. But inviting constitutionalization is a path toward deregulation on a grand scale. Environmental, health and safety, labor, housing, and anti-discrimination laws are all vulnerable to the deregulatory knife, whether wielded by courts or by state and national governments adopting preemptive legislation, often at the behest of corporate interests. Instead of aiding and abetting that program by vilifying the exercise of city power, reformers concerned with inequality should be doing everything they can to defend local government authority against constitutionalization and centralization. That does not mean “learning to love” exclusionary zoning. It does mean marshalling support for land use reform and housing provision at the local level and not falling prey to excessive state blaming.