Exclusionary Zoning's Confused Defenders

Abstract

In both economic and legal scholarship, a broad consensus has formed that zoning and other land use laws and regulations in our richest and most productive regions have become too strict. Land use laws, in both suburbs and downtowns, have made it too hard to build housing in the areas with the most demand, leading to high prices and excluding many possible migrants. The lack of housing growth in our richest regions has created huge economic losses, as workers cannot move to the regions where they would earn the highest wages. Local land use regulations that limit housing growth also contribute substantially to economic inequality, racial and economic segregation, homelessness, and greenhouse gas emissions.

But scholars abhore consensus, no matter how much empirical evidence piles up in favor of it. In the last few years, several legal scholars have written articles challenging the scholarly consensus in favor of zoning reform.

This Article reviews their arguments and finds that the consensus …. has little to fear.

Some of their criticisms are recycled versions of old theories, failing to consider huge changes in land use policy since the 1980s. These arguments also put a bizarrely heavy normative weight on the expectations of property owners about the built form of their neighborhoods, without providing a clear justification for doing so. Others display an undeclared but intense conservatism, viewing changes in development patterns as a cause for fear rather than as opportunities for growth and reform. The critics each uncritically embrace the regulatory authority of local governments, while minimizing the demonstrated harms this power can have on economic growth, the environment, and racial and economic equality. These critics fail to see that local regulation is fundamentally different from national-level regulation due to its capacity to not only regulate behavior but also who can enter and reside in jurisdictions and places.

The Article concludes by assessing what effect a post-pandemic increase in working-from-home (WFH), due to technologies like Zoom and Slack, would have on the case for land use reform. It argues that, if it does increase substantially, the form WFH takes will have a big effect on which cities gain and lose (i.e. whether it is fully remote, hybrid or something else). However, unless things change extremely radically, zoning in rich cities and regions will remain a very substantial economic problem. Further, a world with more WFH would make zoning reform more pressing in one particular way. WFH may give the highest income workers even more of an opportunity to isolate themselves in low tax, high service quality jurisdictions, and to use land use regulations to ensure that no one else can rely on their property tax base to pay for local services.

Keywords: Zoning, land use, economic growth, housing, urban development, working from home

JEL Classification: R1, R14, R31, R52