Joe Gay
Joe Gay  ·  December 13, 2021

At IJ, we know that local governments are showing increasing disdain for property rights. We have seen ordinances that outlaw front-yard vegetable gardens, ban home businesses, and even prevent businesses from placing signage in their own windows. When we fight back, we advocate for a straightforward principle: People should be able to live and work on their property free from unnecessary government intrusion. 

One especially pernicious new trend is to ban people from building small homes on their own property. Instead, some cities and towns force people to build homes that satisfy a certain “minimum square footage” requirement—even if the resulting home is bigger and more expensive than the property owner wants. That is the case in the Atlanta suburb of Calhoun, Georgia, where IJ filed a new lawsuit in October.  

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Calhoun is a poor town, with 20% of the population living under the poverty line. Many of these people have rented their entire lives. The nonprofit Tiny House Hand Up (THHU) and its executive director, Cindy Tucker, want to put homeownership within reach for them. THHU’s insight was simple and elegant: Build beautiful Southern-style cottages similar to homes used in the region for generations. By focusing on modestly sized one- or two-bedroom homes with 540–600 square feet of living space, THHU could build homes that are naturally affordable—no government subsidies required. The logic is clear: Smaller homes simply cost less to build. 

Cindy and THHU have everything they need to move forward with building these small, affordable homes in Calhoun. They have eight acres of land zoned for about 30 houses. They have plans for the homes they want to build. And they have financial backing and contractors at the ready to do the building.

The one thing standing in their way? The city of Calhoun. Its zoning code does not just regulate how tall your house can be or how close it can be to the property line. Calhoun also says that homes are not allowed to be “too small.” All new single family homes in Calhoun must have a floor area of at least 1,150 square feet; some parts of town even require a minimum of 1,800 square feet.  

But banning modestly sized homes is both arbitrary and unconstitutional. Georgia’s constitution requires zoning laws to be substantially related to public health, safety, morality, or general welfare. Calhoun’s ban serves no purpose other than to exclude homes that the city thinks do not cost enough to build. Building codes recognize that homes much smaller than 1,150 square feet are perfectly safe. As for aesthetics, property owners are free to build hideous homes so long as they are big enough. But stylish yet simple homes are banned only because Calhoun deems them too small. 

That’s why THHU and IJ have joined forces to put an end to Calhoun’s unconstitutional ban on modestly sized, affordable homes. A victory will not just help THHU advance its mission of providing grassroots solutions to unaffordable housing. It will also put municipalities in Georgia and around the country on notice that zoning codes are not a free pass to violate constitutional rights.

Joe Gay is an IJ attorney.

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