The Perils Of Land Use Deregulation

Abstract

Land use regulation and zoning have long been core functions of local governments. Critics of local land use practices, however, assert that local regulations are too restrictive and that “exclusionary zoning” ordinances increase housing costs, reduce mobility, entrench racial segregation, prevent the poor from accessing jobs and services, and reduce economic productivity. Spurred in large part by an affordable housing crisis in popular metropolitan areas, the YIMBY (“yes-in-my-backyard”) movement has urged state and even federal action to override local land use regulations that raise barriers to the construction of market-rate housing. The conventional wisdom is that local governments cannot be trusted with land use policymaking and that striking down local regulatory barriers is necessary to address a whole range of ills.

This Article challenges that conventional wisdom. It does not contest the chief harms of exclusionary zoning, which have been recognized since the inception of Euclidean zoning in the 1920s. Instead, the Article argues that for those who share the goal of creating more equitable metropolitan regions, the rush to preempt local land use regulations and adopt market-favoring state-wide reforms is a mistake. The history of centralized intervention in local land use suggests that preemptive state laws will more likely injure lower-income persons than help them. Indeed, states generally prevent local governments from adopting affordable housing policies. So too, deregulating the housing market can lead to higher costs and less control over development and displacement, often to the detriment of lower-income and minority communities. Though the “market” solution to housing affordability assumes that economic growth lifts all boats, the gains of growth tend to run to skilled labor and the already prosperous. Finally, the logic of land use preemption undermines cities’ other efforts to address economic inequality. Advocates for redistributive social welfare policies favor expanding city power, not limiting it. That is because urban-based economic justice efforts are regularly blocked by hostile state legislatures. Local land use exclusion can have pernicious effects. But preemptive state laws that further reduce or eliminate city power are not an answer.

Keywords: land use, local government law, preemption, fair housing, affordable housing, zoning