Let’s Take Zoning to Court

Anthony Sanders · October 7, 2019

This post is my attempt to put together two groups of people who don’t talk to each other all that much: urbanists and property-rights attorneys. Although they are both varied groups internally, not to mention that the two groups don’t agree with each other on all issues, they actually have a huge amount in common concerning where people live and how they find housing. And yet they’re not very well known to each other.

I lay out here a bit of a history lesson on why that is, but also why that doesn’t have to be true and, most importantly, why the two groups need each other and should start talking.

But before we get to the history we should talk a little math. It starts basic, and then gets a little Euclidean.

Housing Costs

Math is a tough reality to avoid. Yes, we all know the expression “lies, damned lies, and statistics,” but basic arithmetic doesn’t quite fall into that company. One area where simple math is becoming increasingly hard to get around is in housing policy. More housing units = more housing. And unless you’ve repealed the law of supply and demand, more housing will tend to push down housing prices. Everybody has to live somewhere, and if there are more “somewheres” to live in, they will be less expensive.

Backed by this math, the lack of housing in some areas is pushing housing prices to dystopian heights, with the price of a teardown one-story home rising to millions of dollars in parts of California.

It’s pretty hard to deny that building more housing would improve this situation. It certainly wouldn’t hurt. And that blinding reality recently started nudging some policymakers in the right direction, with cities (most notably Minneapolis) and states (especially Oregon) going as far as rolling back or even abolishing single-family zoning, allowing more homes to be built on formerly sacrosanct one-unit lots. Even the White House has come to the cause.

But there’s something that the current housing debate is missing; something which successfully supplemented many past causes: civil rights litigation.

Euclidean Blues

What do I mean by that? I mean court cases where plaintiffs argue that laws, especially zoning laws, unconstitutionally and unlawfully (but especially unconstitutionally) restrict the ability of property owners to build more housing units. I also mean cases brought by future tenants and owners who want to rent and buy that (currently unavailable) housing.

For example, take a family who lives in a single-family home with a furnished basement on a one-acre lot where the city’s zoning code forbids more than one household from living on the lot. And say the family wants to rent their basement out, expanding the availability of housing (and in this case, likely affordable housing) in the neighborhood. To further this goal the family could go to court and challenge the restriction—at least as applied to their lot—as unconstitutional. Additionally, another family that wanted to rent the basement out could also be plaintiffs in the lawsuit. They could both argue that it makes no sense to restrict an entire acre for one family when that very family wants to share their basement with another. They would argue that the restriction unconstitutionally restricts their property rights and right to contract.

I know what experienced housing advocates and constitutional scholars are thinking: “Um, aren’t you forgetting Euclid?!” Yes, I’m aware of that 1926 case where the Supreme Court said zoning is constitutional. But hear me out.

In Village of Euclid v. Ambler Realty Co. the Supreme Court ruled that zoning parts of cities to not allow for certain uses (like commercial uses, or multi-family housing) is permissible under the U.S. Constitution. Since Euclid, the Court has only made it harder. The worst example was the barbaric Village of Belle Terre v. Borraas (1974), which upheld restrictions on nonfamily members living together. That opinion dripped with upper-middle-class smugness on the moral superiority of suburban living (a kind of living, by the way, which did not exist until the twentieth century). Justice Douglas not only affirmed the constitutionality of single-family-only neighborhoods, but outright encouraged their proliferation by asserting “A quiet place where yards are wide, people few, and motor vehicles restricted are legitimate guidelines in a land use project addressed to family needs.”

Euclid and its ilk were a sharp change from earlier jurisprudence where courts would have found modern zoning unconstitutional under a number of theories. They represent a turn away from judicial engagement with property rights and the facts of individual’s own situations to judicial abdication of any assessment of those rights and facts to the will of city hall.

The policy implications of the Court’s choices are obvious, and ominous. Generally, how Euclid’s blessing applies to housing policy is that if a city restricts an area of land to single-family only (no apartment buildings, not even duplexes), then a property owner can only allow one family to live on a lot (with some exceptions for grandfathered properties). And, it can even mandate a minimum size of lot. In this situation, the only way to increase the number of housing units in that area is to build additional homes on vacant lots, convert nonconforming lots (such as grandfathered commercial properties) into homes, or subdivide lots (if they aren’t at the minimum size yet—which they likely are). Mathematically, this can only continue for so long, of course. Plus other laws, such as environmental protections, may make some lots unbuildable. All of this raises the cost of homes. Further, because single-family homes are, on average, going to be more expensive housing options than duplexes or apartments in larger buildings (whether you’re talking about buying or renting), there is even further pressure on housing costs. Thus, this policy benefits those who already own homes (and don’t want to rent out their basements) by jacking their houses’ values up, but hurts everyone else, especially those who can’t afford a single-family home but could rent out a unit in a duplex.

OK, you might respond, that’s bad, but given the abdication by the Supreme Court in cases like Euclid, why are we talking about litigation?

Because although that’s true in federal court, it’s not necessarily true under state law.

Laboratories of Anti-Zoning Experimentation

Using state constitutions, state zoning statutes, and other limitations of municipal powers, some state courts have nibbled around the edges of over-expansive municipal housing policies. For example, some have declared that state zoning laws do not allow cities to forbid renters from living in homes if homeowners are already allowed in them. This makes it easier for homeowners to provide housing to renters when the homeowners are not living in their houses (but don’t want to sell), and even when they are living there. It protects their right to rent out basement apartments and mother-in-law cottages for people other than mothers-in-law. The recent policy successes liberalizing rules for second-unit apartments follow in the footsteps of these sporadic, but real, legal victories.

For the most part, however, the push for more housing (including the YIMBY movement—“Yes In My Backyard”) has not been coupled with a litigation push that utilizes constitutional protections of property rights. It has been coupled to some extent with efforts to simply enforce state and local laws (as often cities don’t even follow their own rules, as bad as they may be). One group that does this work is YIMBY Action, which litigates in the Bay Area.

This litigation under state statutes and local ordinances is very important, and those groups should be commended for their work. But in the long run it’s not sufficient. Hearts and minds aren’t won by following statutes alone. They’re won by submission to fundamental protections, which in this country means the language of constitutional government.

Resting on Mount Laurels?

The lack of constitutional litigation may be because of a bad experience. The biggest legal victory for housing liberalization in recent decades quickly turned into a bogyman used to scare state courts away from constitutional limits on zoning. In 1975 the New Jersey Supreme Court ruled that Mount Laurel Township, a suburb outside of Camden, violated the New Jersey Constitution by allowing essentially no “affordable housing” in its borders. Extensive single-family zoning and other land use tools made it prohibitive to build housing for those of modest means, and the Township even actively tried to eliminate the little existing housing that the poor could afford. That ruling was great, but the comprehensive remedy for this systemic problem was not obvious, or specific, and the patchwork of court rulings, state legislation, subsidies, and builder-mandates that arose in the decades following the initial decision has been a bit of a mess, despite the obvious justice of the plaintiffs’ cause. Observing this, no state has followed New Jersey’s lead, and some courts have used New Jersey’s example as a reason to abdicate their oversight of housing issues. Why challenge Euclid when you end up with Mount Laurel?

Luckily, though, that’s not the dichotomy we’re faced with. One way to attack a lack of housing is through a comprehensive approach like the plaintiffs pursued in Mount Laurel. But another way is simply to expand the property rights of individual owners, such as the above example of the family with the furnished basement. There’s no need for judicially ordered government subsidies, mandates that new buildings rent to people of certain incomes (sometimes called “inclusionary zoning”), or comprehensive redrawing of maps (all of which have happened in New Jersey). Is a basement-apartment lawsuit an attack on zoning? Yes, but not at zoning’s core. It’s a paring back of zoning’s most ridiculous edges, and doesn’t imply the specter of French Revolution-level changes to neighborhoods (this isn’t what the plaintiffs in Mount Laurel were asking for, but it’s how many judges may perceive similar efforts).

What is to be done

Would challenges like the family with the basement succeed in court? Given current jurisprudence in most, if not all states, the answer is a bit bleak: not often. But that didn’t stop other litigation strategies that fought an overwhelming status quo while working alongside legislative and cultural reform. My employer, the Institute for Justice, did just that in the fight against eminent domain abuse, highlighting the issue through litigation but also working with a myriad of groups in pushing for successful reform in states across the country. And that mostly was after we lost at the Supreme Court, in Kelo v. New London. Despite the result, the drama and attention the case provided got the conversation going and led to most of those reforms. And it goes without saying that that strategy is taken right out of the NAACP’s efforts prior to Brown v. Board of Education, of bringing incremental cases to chip away at the edifice of Jim Crow segregation. A strategy of high-profile litigation in state courts under the banner of property rights, seeking incremental efforts to open up housing laws to more housing units, might have some wins under state constitutions, but, more importantly, would supplement the existing push for the same thing in state legislatures and city halls.

Again, this is not to say that no one pursues public interest litigation to expand the availability of housing. Some is done under state laws, some is done under antidiscrimination laws (when that’s available as a theory) and some is done to have cities actually follow their existing ordinances. But much more could be done through invoking constitutional protections of basic American liberties to raise the awareness of legal limitations on the amount of housing, and find a few court victories along the way.

How do we make that happen? One way is for those who most worry about these issues (urbanists and fellow-minded advocates) and those who like to sue the government about restrictions to private property (mostly libertarian or conservative public interest litigators, like my colleagues at IJ) to talk to each other. I’m sure the former have seen many problems and outrages that the latter don’t know about, and the latter have thought about solutions that the former haven’t discovered. So this is my call to both sides: let’s talk! It’s just basic math.

Anthony Sanders is the Director of IJ’s Center for Judicial Engagement.