The Unconstitutionality of Georgia’s Municipal Bans on Build-to-Rent Housing A Discussion of Bias in Zoning and a Path Toward More Freedom in Land Use

12 Pages Posted: 13 Mar 2023

See all articles by Brian T. Hodges

Brian T. Hodges

Pacific Legal Foundation

Sam Spiegelman

Pacific Legal Foundation

Date Written: March 8, 2023

Abstract

Build-to-rent (BTR) developments are a highly-sought-after innovation in housing and are worthy of policymakers’ reasoned consideration—not the type of unthinking and outright regulatory bans that have been proliferating in the Greater Atlanta area. To ensure that Georgians will have access to this and other emerging housing options—and to avoid running afoul of several constitutional principles—it is critical that local bans on housing types be curtailed in favor of reasoned processes. Briefly put, bans on BTRs generally deprive developers and residents, respectively, of their constitutional rights to use their property as they choose, provided they do not harm their neighbors, and to establish a home. Both rights have a robust history of protection before the state and federal courts. Where such bans are allowed to stay in effect, the local government is exposed to legal sanction. Moreover, as a basic policy matter, housing bans make it that less likely that Georgia’s housing shortage will moderate any time soon. In summary:

• BTRs represent a positive innovation in the housing space, needed now more than ever considering the country’s dire shortages.
• Laws that ban housing drive away investment and residents.
• Housing bans are a blunt tool often motivated by anti-renter sentiment—they are not necessary to preserve the character of existing neighborhoods and other local interests.
• A law prohibiting outright bans would also encourage lawful governance based on the actual impacts of proposed structures rather than the people who may live there.
• Besides the policy concerns with banning BTRs, doing so also violates several constitutional principles and would open localities to lawsuits.

Suggested Citation

Hodges, Brian T. and Spiegelman, Sam, The Unconstitutionality of Georgia’s Municipal Bans on Build-to-Rent Housing A Discussion of Bias in Zoning and a Path Toward More Freedom in Land Use (March 8, 2023). Pacific Legal Foundation Research Paper, Available at SSRN: https://ssrn.com/abstract=4382479 or http://dx.doi.org/10.2139/ssrn.4382479

Brian T. Hodges

Pacific Legal Foundation ( email )

930 G Street
Sacramento, CA 95814
United States

Sam Spiegelman (Contact Author)

Pacific Legal Foundation ( email )

930 G Street
Sacramento, CA 95814
United States

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