The New State Zoning: Land Use Preemption amid a Housing Crisis

67 Pages Posted: 2 Oct 2018 Last revised: 4 Apr 2019

See all articles by John Infranca

John Infranca

Suffolk University Law School

Date Written: February 21, 2019

Abstract

Commentators have long decried the pernicious effects that overly restrictive land use regulations, which stifle new development, have on housing supply and affordability, regional and national economic growth, social mobility, and racial integration. The fragmented nature of zoning rules in the United States, which are set primarily at the local level, renders it seemingly impossible to address these concerns systematically. While there have been some efforts to address local exclusionary tendencies and their suboptimal effects by means of greater state control, these efforts, which remain contentious, have been limited to just a few states.

In the past few years a new wave of state interventions in local zoning has appeared. These interventions are motivated in part by the harsh reality of housing shortages and skyrocketing costs in significant parts of the country, which have made housing affordability a salient issue for a broader segment of the population. At the same time, states have grown increasingly willing to preempt local governments across a range of policy realms.

This Article contends that the confluence of these and other factors suggests the potential for a recalibration of the balance of power between state and local governments in the realms of housing and land use regulation. State governments are increasingly displacing local restrictions on new development, mandating that municipalities permit certain forms of housing, and providing incentives for local governments to adopt certain forms of housing. I argue that the current housing crisis justifies bold new forms of state intervention. Such interventions should expressly preempt narrow elements of local law, rather than, as an earlier generation of interventions did, adding additional planning requirements, procedural steps, or potential appeals. At the same time, these interventions can and should provide clear mechanisms for addressing significant countervailing local interests.

Keywords: land use, zoning, NIMBY, YIMBY, affordability, housing, density, California, Massachusetts, ADU, preemption

JEL Classification: K11, 018, 021, P11, P14, P16, R14, R21, R23, R31, R52

Suggested Citation

Infranca, John, The New State Zoning: Land Use Preemption amid a Housing Crisis (February 21, 2019). Boston College Law Review, Vol. 60, p. 823 (2019); Suffolk University Law School Research Paper No. 18-17. Available at SSRN: https://ssrn.com/abstract=3259398

John Infranca (Contact Author)

Suffolk University Law School ( email )

120 Tremont Street
Boston, MA 02108-4977
United States

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