Nine Stories of Baby Ninths: Six—Essential Housing

Anthony Sanders · April 14, 2023

[This is the sixth in a series of nine posts on nine stories of how Baby Ninth Amendments made a difference in real cases. They’re part of the lead-up to the publication of the book Baby Ninth Amendments: How Americans Embraced Unenumerated Rights and Why It Matters.]

Zoning reform has become a hot topic in recent years. Legal barriers to building more places for people to live has, quite predictably, catapulted housing costs, increased car reliance, and further artificially separated us from each other. This renewed attention to land use issues is great, and has led to some promising reforms. But it’s not like the problem is a new one. In fact, recognition of the problem goes back a long way, even in the courts. Limiting the number of homes is, at bottom, a property rights issue. So it makes sense that someone who is told they can’t build a home—whether for themselves or others—should be able to go to court to enforce their property right to do so. Unfortunately, if you’re making a constitutional claim this is usually very hard.

Occasionally, however, judges give glimmers of hope. This happened at the Michigan Supreme Court in 1975 when a group of developers wanted to build some mobile-home parks. Among other legal principles the court turned to was Michigan’s Baby Ninth Amendment.

Trailer trash? Or trashy property rights

Mobile-home parks/trailer parks/manufactured home communities—whatever you want to call them—get a bad wrap from the not-in-my-back-yards (NIMBYs) of the world. The housing these developments provide is often substantially less expensive than available alternatives—even multifamily housing. That means they give people in need a place of their own that they can afford.

Fifty years ago these realities—and prejudices—were much the same. Municipalities zoned to allow single-family housing but not multifamily housing let alone mobile-home parks. In three different Michigan townships developers acquired land that for various logistical and geographic reasons didn’t work to build traditional homes on. Instead, they tried to re-zone the land to allow for mobile-home communities. And in each township they met the same NIMBY opposition of people who did not own the land but nevertheless wanted to dictate what kind of people could live on it.

NIMBYs with pitchforks

The municipalities were Monroe Charter Township (between Detroit and Toledo, Ohio), Wheatfield Township (outside of Lansing), and Grand Blanc Township (outside of Flint). The facts of each differed, but the story was essentially the same and presumably reflected similar stories throughout the state (and country). There was very little land in each municipality where a property owner could legally run a mobile-home park. For example, in Wheatfield Township any prospective park owner had to ask for rezoning even though the overwhelming majority of the land, much of it zoned single-family, was not even developed and no low-cost housing already existed. One developer asked and the township denied the request because, among other reasons, the park would be of “no benefit to [the] surrounding community.”

In Grand Blanc the story was much the same. Literally one tenth of one percent of the township’s area was dedicated to mobile-home parks, that being two existing parks totaling only 23 acres. When the developer applied for rezoning the township’s board held “a meeting attended by a vocal and hostile audience.” The board then rejected the request with a slew of excuses, including that the park “would be too close to a single-family subdivision and would adversely affect it” and that it just “was not good, practical zoning.”

All three cases separately wound their way to the Michigan Supreme Court. First they stopped at the intermediate court of appeals, which actually ruled for the property owners. And then the supreme court did as well.

The rulings in each case were often quite technical, centering on Michigan planning and zoning law. But the overarching and animating reasoning behind the rulings was that denying these projects was not reasonably related to the public welfare. And it was in the Grand Blanc case that the state constitution came into play.

A newer Baby Ninth

As I discuss in my book, Michigan did not have a Baby Ninth Amendment until it adopted a new constitution in 1963. That makes it the second youngest in the country, older only than Illinois’ of 1970 (not counting when states have readopted Baby Ninths from earlier constitutions, such as Montana did in 1972 and Rhode Island did in 1986). Its text is virtually identical to the Ninth Amendment itself: “The enumeration in this constitution of certain rights shall not be construed to deny or disparage others retained by the people.” (It’s not a subject for this blog post, but if you’re interested in originalism in the book I look into how to think about the original meaning of newer Baby Ninths versus those from near the drafting of the Ninth Amendment itself.)

The Grand Blanc majority did not squarely say that the township’s denial of the park violated the state constitution. But it read the state’s regulatory framework to require granting the developer’s request because of the Baby Ninth’s protection of certain unenumerated rights. It discussed an earlier case, Roman Catholic Archbishop of Detroit, where a village had not allowed any churches or schools, and the Michigan Supreme Court had incredulously responded that the state constitution’s protection of religion and promotion of education was “[h]ardly compatible” with this exclusion. As for the issue of mobile-home parks, the Grand Blanc court recognized that while enumerated rights such as religion were not at issue, unenumerated ones protected by the Baby Ninth, Article I, Section 23, were:

While shelter and food are not specially enumerated constitutional concerns like religion and schools, nonetheless both also are essential to the human condition. As such they may be among the unenumerated rights still “retained by the people”. Const 1963, art 1, § 23. . . . In short, Archbishop held zoning invalid that excluded a constitutionally guaranteed use. While mobile-home parks are not a guaranteed constitutional use, they are necessary to the essential human problem of low-cost shelter. Legislatively and judicially, as a lawful land use, they deserve protection from discrimination by exclusionary zoning.

Backed with this constitutional justification, the court determined that the denial of the developer’s application was invalid.

Unenumerated housing

Unfortunately, Grand Blanc is a rare example of state courts using unenumerated rights to allow property owners to provide housing. It’s also just about the only time the Michigan Supreme Court has taken its Baby Ninth seriously. But it’s an example of what is possible. As the fight for zoning reform heats up and battles continue in court (such as some we’re fighting at IJ these days) Grand Blanc is a victory that public interest lawyers, real estate attorneys, and housing advocates should take note of.

Among our many unenumerated rights “retained by the people” is the right to build housing, both for ourselves and for others. As the court said it’s “essential to the human condition.” And it’s time our courts started protecting it as well.

Anthony Sanders is the Director of the Center for Judicial Engagement at the Institute for Justice.