The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
The Century Foundation recently published "Tearing Down the Walls: How the Biden Administration and Congress Can Reduce Exclusionary Zoning." In it, Century Foundation Senior Fellow Richard Kahlenberg summarizes the harm caused by exclusionary zoning, and summarizes several proposed ways the federal government can help reduce it. The report represents Kahlenberg's views. But it is based in part on a conference on zoning held by the Century Foundation in December, which included a wide range of academics and policymakers, including myself.
I don't agree with Kahlenberg on every point. But he's absolutely right about the great extent of the problem, and the ways in which it cuts across ideological lines:
While democratic egalitarianism and the liberty to be free from government interference are values that are typically in tension with one another, in the case of exclusionary zoning, they point in the same direction. Perhaps because curtailing exclusionary zoning honors both egalitarian (anti-discriminatory) and libertarian (small government) streams in the American belief system, surveys suggest it is popular. In a 2019 Data for Progress poll, for example, voters were asked, "Would you support or oppose a policy to ensure smaller, lower-cost homes like duplexes, townhouses, and garden apartments can be built in middle- and upper-class neighborhoods?" Supporters outnumbered opponents by two to one.
Kahlenberg expands on this theme in a recent New York Times op ed:
Blue cities and states — most notably Minneapolis and Oregon — have recently led the way on eliminating single-family exclusive zoning, as a matter of racial justice, housing affordability and environmental protection. But conservatives often support this type of reform as well, because they don't want government micromanaging what people can do on their own land. At the national level, some conservatives have joined liberals in championing reforms like the Yes in My Backyard Act, which seeks to discourage exclusionary zoning.
As Kahlenberg points out in both articles, cutting back on zoning would serve progressive values by expanding housing and job opportunities for the poor, and by eliminating restrictions that, in many cases, were originally established for the purpose of keeping out African-Americans and other racial minorities. In recent years, some liberal jurisdictions have undertaken important reforms in this field, most notably Minneapolis and Oregon (as Kahlenberg notes). But there is still a tension between the growing recognition that zoning is inimical to liberal values, and the high degree of NIMBY sentiment in many liberal areas:
If race were only the driving factor behind exclusionary zoning, one would expect to see such policies most extensively promoted in communities where racial intolerance is highest, but in fact the most restrictive zoning is found in politically liberal cities, where racial views are more progressive.186 Indeed, some liberals even take special pride in the fact that particular neighbors of theirs are members of racial or ethnic minority groups….
[S]ome upper-middle-class liberals will strenuously argue that people should never be denied an opportunity to live in a neighborhood because of race or ethnic origin, but have no problem with government policies that effectively exclude those who are less educationally and financially successful. As Princeton political scientist Omar Wasow acerbically noted: "There are people in the town of Princeton who will have a Black Lives Matter sign on their front lawn and a sign saying 'We love our Muslim neighbors,' but oppose changing zoning policies that say you have to have an acre and a half per house." He continues: "That means, 'We love our Muslim neighbors, as long as they're millionaires.'"
There are similar tensions on the right between free market economists and property law experts who recognize that zoning reform can eliminate severe restrictions on property rights and vastly expand economic growth, and those who sympathize with Donald Trump's claims during the last election, that exclusionary zoning is needed to protect white middle-class neighborhoods against an influx of the poor and minorities.
In both of his articles, Kahlenberg correctly argues that reducing exclusionary zoning will help alleviate both racial injustice and economic inequality. As I have previously pointed out, this is an issue on which the largely Republican white working class and mostly Democratic African-American and Hispanic workers have an important common interest.
It is worth emphasizing, moreover, that the racial angle here is not simply about alleviating "structural racism" in some very broad sense of the word that would understandably raise conservative and libertarian hackles. Rather, many of today's exclusionary zoning policies were originally enacted for the specific purpose of keeping out blacks (and sometimes other minorities, as well). That's racial discrimination even under the narrowest plausible definition thereof. Anyone who advocates color-blind government policy (as many on the right—for good reason—do), cannot overlook this history.
I wish, however, that Kahlenberg had also emphasized the ways in which zoning reform not only benefits the poor and minorities, but also can greatly increase economic growth, thereby ensuring gains for society as a whole. As Matt Yglesias points out in a thoughtful analysis of Kahlenberg's articles, survey data suggests that the economic growth aspect of the issue actually has broader appeal than the racial justice frame. The latter has value in appealing to committed progressives—an important constituency in many of the liberal areas that have some of the most egregious zoning restrictions. But the former is crucial to building a broader cross-ideological coalition.
Recent evidence suggests that the zoning stifles growth to an even greater extent than previously recognized. Reform advocates should do all they can to make that fact more widely known.
I will not, in this post, offer a detailed assessment of the specific policy proposals outlined in the Kahlenberg/Century Foundation report. My general view is that there is some real merit in proposals to condition various federal grants to states and localities on zoning reform. I am more wary of more comprehensive federal efforts to override local land-use policy. However, for reasons I laid out in a 2011 article on this topic, there may be good reasons for such overriding in cases where it expands protection for property rights, and thus gives individual property owners the ultimate say in deciding how to use their land, as opposed to imposing some kind of centralized federal land-use plan. Curbing state and local restrictions on property rights can actually increase decentralization, overall. The most localist land-use policy and the one that takes greatest account of diversity and local knowledge is one under which property owners have broad autonomy in deciding how to use their land.
While the federal reforms Kahlenberg describes deserve consideration, I believe the greatest potential for reform may lie at the state level, building on recent successes in Oregon and elsewhere. If state Rep. Scott Wiener is able to push through his proposed reforms in California, it could be a game-changer for the entire nation.
Reformers should also make greater use of referendum initiatives to promote zoning reforms. I outlined some of the reasons why here. In addition, they should systematically look for ways to challenge exclusionary zoning under various property rights provisions of both state and federal constitutions—a subject I plan to write about more in the future.
There aren't many policy changes that can simultaneously strengthen protection for property rights, increase opportunity for the poor, alleviate grave historic racial injustices, and greatly expand economic growth. Abolishing exclusionary zoning can do it all! Whether you're a libertarian, a conservative property rights advocate, a racial justice crusader, a progressive concerned about economic inequality, or just someone who wants to lower housing prices because "the rent is too damn high," this is a cause you have good reason to support.
UPDATE: In the original version of this post, I accidentally called the Century Foundation the "Century Fund." I apologize for the error, which has now been corrected.