Professor Richard C. Schragger’s article, The Perils of Land Use Deregulation, provides a cautionary tale as to whether land use reform by state legislative preemption will backfire in the attempt to provide more affordable housing. Efforts to address the housing crisis have focused on state preemptive legislation to combat NIMBYism (“Not in My Backyard”) and local land use controls by using market reforms to speak to the perceived housing shortage.
The affordable housing crisis has generated calls for land use reform in response to claims that exclusionary zoning (for example, single-family housing codes and discriminatory practices by localities) exists at the base of this crisis. With the vigorous ongoing debate about the supply-side solution to housing demand, it is not clear whether upzoning, which may reduce market rate housing prices marginally, will produce affordable housing.
State regulation adopting a market-based solution could potentially reduce localities’ power to address economic inequality. Schragger challenges the conventional wisdom, supported by the YIMBY (“Yes in My Backyard”) movement that the state or possibly the federal government should preempt local regulations that interfere with market-rate housing construction.
Recently, some states and localities have targeted single-family zoning as responsible for racial segregation, exclusion of the poor, and lack of affordable housing. For example, California enacted Senate Bill 9, which allows homeowners in single-family zones to add a second unit onto their property or to divide their residential lot into two lots and build up to two housing units on each lot.
With some exceptions, the California law preempts municipal review in order to simplify and expedite the building permit process. And, Minneapolis, Minnesota, eliminated single-family-only zoning in January 2020 to allow building duplexes and triplexes to provide affordable housing. It may be too early to see the impact of these reforms on housing supply and affordability.
It is easy to jump on the “let’s toss zoning” bandwagon because of zoning’s sordid history of explicit racial discrimination and its role in segregating neighborhoods through Euclidean exclusion of apartments from single-family residential zones. Professor Schragger agrees with the criticisms of exclusionary zoning but argues that cities should maintain local power over land use. Cities can address economic inequality by leveraging land use development to obtain higher wage and labor standards, and they can negotiate community benefits agreements (CBAs) with developers.
Many have argued for deconstructing local zoning and municipal power. Professor Schragger’s article contributes mightily to this debate by making sure we consider both sides and proceed with restraint. Professor Christopher Serkin likewise cautioned, in his article, A Case for Zoning,1 that zoning is an important tool in “controlling the pace of community change.”
Schragger reminds us that, historically, populations have shifted from the city core to the suburbs and then back to the city as residents who are mobile chase wealth and opportunity and desert the poor and working class. This leaves some areas with plentiful housing (i.e., Detroit) and others with scarcity (i.e., New York City). Instead, he argues that the city should use its power to pursue economic reform without state law preemption and respond to citizens’ economic and social welfare needs in place.
Urban and suburban land markets may see dynamic change as remote work and increased online learning empty office buildings and classrooms. The demand for particular locations may experience rapid transformation, and statewide legislation will inappropriately deal with housing needs as cities become “newly popular and suburbs stagnate” or vice-versa.
Increasingly, local governments are asked to address challenges that could not be confronted at the state or federal level. Efforts to adapt to climate change have required local land use reforms, given the importance of local decisions permitting building in flood zones, hillsides, coastlines, and the wildlife urban interface (WUI).
In this debate over the proper role of government in providing shelter for our citizens, we need the cautionary voices of Professor Schragger and others to call attention to the city’s importance as the site for participatory and democratic governance and its “power as a potential counterweight to private-side economic domination.” (P. 203.)
- Christopher Serkin, A Case for Zoning, 96 Notre Dame L. Rev. 749, 750-52 (2020).
