Balancing the 'Zoning Budget'

63 Pages Posted: 23 Apr 2011

See all articles by Roderick M. Hills, Jr.

Roderick M. Hills, Jr.

New York University School of Law

David Schleicher

Yale University - Law School

Date Written: April 20, 2011


The politics of urban land use frustrate even the best intentions. A number of cities have made strong political commitments to increasing their local housing supply in the face of a crisis of affordability and availability in urban housing. However, their decisions to engage in “up-zoning,” or increases in the areas in which new housing can be built, are often offset by even more “down-zoning” or laws that decrease the ability of residents in a designated area to build new housing as-of-right. The result is that housing availability does not increase by anywhere near the promises of elected officials.

In this essay, we argue that the difficulty cities face in increasing local housing supply is a result of the seriatim nature of local land use decisions. Because each down-zoning decision has only a small effect on the housing supply, citywide forces spend little political capital fighting them, leaving the field to neighborhood groups who care deeply. Further, because down-zoning decisions are made in advance of any proposed new development, the most active interest group in favor of new housing – developers – takes a pass on lobbying. The result is an uneven playing field in favor of down-zoning.

Drawing on examples of “extra-congressional procedure” like federal base closing commissions and the Reciprocal Trade Act of 1933, we argue that local governments can solve this problem by changing the procedure by which they consider zoning decisions. Specifically, they should pass laws that require the city to create a local “zoning budget” each year. All deviations downward from planned growth in housing supply expressed in the budget should have to be offset by corresponding increases elsewhere in buildable as-of-right land. This would reduce the degree to which universal logrolling coalitions can form among anti-development neighborhood groups and would create incentives for pro-development forces to lobby against down-zonings in which they currently have little interest. The result should be housing policy that more closely tracks local preferences on housing development.

Keywords: Brooklyn, Bruce Hamilton, buyer, Carroll Gardens, Collective Property Right, Council, Environmental Quality Review, Fischel, Impact Statements, Locally Unwanted Land Uses, LULUs, Mancur Olson, Mayor Michael Bloomberg, New York, NIMBY, Planning, PlaNYC 2030, Pop-up, Public Choice, Renter, Rezoning

JEL Classification: K23, L51, O21, P11, R21, R31, R38, R52, R58

Suggested Citation

Hills, Roderick Maltman and Schleicher, David, Balancing the 'Zoning Budget' (April 20, 2011). Regulation, Vol. 34, No. 3, 2011, Case Western Reserve Law Review, Forthcoming, NYU School of Law, Public Law Research Paper No. 11-19, NYU Law and Economics Research Paper No. 11-08, George Mason Law & Economics Research Paper No. 11-18, Available at SSRN:

Roderick Maltman Hills (Contact Author)

New York University School of Law ( email )

40 Washington Square South
New York, NY 10012-1099
United States


David Schleicher

Yale University - Law School ( email )

P.O. Box 208215
New Haven, CT 06520-8215
United States


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