The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Is the YIMBY Movement Hopelessly Divided?
Internal tensions within the movement are real, but far from irreconcilable. Litigation and political reform are mutually reinforcing, not mutually exclusive pathways to curbing exclusionary zoning.
In a helpful recent Vox article, Rachel Cohen suggests the "YIMBY" ("yes in my backyard") housing deregulation movement may be "divided against itself":
These days, it seems as though everyone is something of a YIMBY: a "Yes in My Backyard" activist advocating for more housing and fewer barriers to making that happen…
Yet as three recently published books reveal, this YIMBY-ish agreement across the political spectrum can mask deeper divides, including about property rights, community development, and the very meaning of democracy in housing policy. Escaping the Housing Trap by urbanists Charles Marohn and Daniel Herriges of Strong Towns advocates for a slower-paced, locally driven form of development that they believe will be more sustainable over the long term. On the Housing Crisis by journalist Jerusalem Demsas challenges this kind of incrementalism, arguing the severity of today's housing shortage demands bolder intervention. And in Nowhere to Live, James Burling, a lawyer with the libertarian Pacific Legal Foundation, frames the housing shortage as the result of diminished respect for private property, something he argues will have to be reversed for any real change.
Read together, these new books tell us that while it has become mainstream to say that America needs more homes — and even to acknowledge that zoning rules and self-interested homeowners play a role in blocking new housing — there's not a clear consensus about what kinds of homes we should build, how we should build them, and who should decide where they go. While it's tempting to think a pro-housing consensus at least forecasts positive changes, the authors say a close read of history should leave us unconvinced that policymakers will ultimately take the necessary steps for reform. There's an opportunity, but we should be clear-eyed about the obstacles.
I agree there are various tensions within the YIMBY movement. But they are not as great as Cohen suggests. Legislation and constitutional litigation are not mutually exclusive paths to curbing exclusionary zoning. To the contrary, the history of previous reform movements shows they are mutually reinforcing. Each can help advance the other. Josh Braver and I discuss this in our recent Texas Law Review article, which explains why exclusionary zoning violates the Takings Clause of the Fifth Amendment, and also describes synergies between litigation and political reform efforts. For a shorter version of our argument, see our June article in the Atlantic.
Some progressive YIMBYs may object to supporting judicial review of "economic" policies like zoning. But, as Braver (himself a progressive constitutional theorist), and I explain, judicial invalidation of much exclusionary zoning is well-supported by a variety of progressive "living constitution" theories, as well as by originalist ones.
Local and state-wide reform efforts also aren't mutually exclusive, though - like Cohen - I am skeptical that the former are likely to be highly effective, given the disproportionate power of "NIMBY" forces at the local level. I also agree with Demsas and Burling that we need more sweeping reforms than most localities are likely to be willing to enact on their own. That said, YIMBYism is actually the ultimate "localism," in so far as it lets each property owner decide how to use his or her own property. That's a greater degree of decentralization and local control than letting zoning boards and other munincipal government agencies decide.
There are unavoidable internal tensions in a YIMBY movement that draws on people with widely divergent interests and ideologies. But those disagreements need not be as severe as they sometimes seem. Reform should be pursued on multiple tracks, not just one.
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I like the shot at "self-interested homeowners". Very libertarian. In his essay "Rent of Land", Marx said that "filthy self-interest" was "the root of landed property".
I agree that libertarians are all in favor of self-interested homeowners controlling, in their own self-interest, what happens on their property. But the objection here is to self-interested homeowners trying to use zoning law to control what happens on other people's property, no? My sense is that most libertarians are skeptical of that.
I live in a neighborhood zoned for single-family homes. If tomorrow, my city changed that to allow duplexes and fourplexes, while housing costs would certainly drop, my home value, and that of everyone else in the neighborhood, would also drop dramatically. I, in my (filthy?) self-interest, oppose that, yet Prof. Somin seems repeatedly to call for just that. Whose side would Marx have taken?
Your concerns are self interested to be sure. Not sure they are libertarian.
Which is fine! I'm also not a libertarian. But then don't get mad when libertarians don't align with you.
Whose side would Marx have taken?
A 1-dimensional continuum with libertarian on one side and WWMD on the other. Seems legit.
Marx would be asking, "where the means of production at?"
I am most certainly NOT a libertarian.
Prof. Somin has an annoying habit of telling us how principled he is as opposed to practically everyone else in the world. Everyone is a hypocrite, except for him. I feel it is certainly legitimate to point out his inconsistencies.
You can't seem to grasp the concept that I can disagree with someone without being "mad" at him. And, with all due respect, I am not going to discuss Marxism with you. I've tried it before, and your grasp of it seems on par with the average college freshman sporting a Che Guevera t-shirt.
Alright, non-libertarian buddy!
But if you're annoyed by idealists arguing idealistic things while you're more pragmatic, you've got a life of being annoyed ahead of you.
Everyone is a hypocrite no doubt including Prof. Somin. By all means call him out for it if you see it, but no need to get preemptively pissed off.
And yes, you do come off as mad. Accusing Prof. Somin of taking shots at you, and now getting mad at how high and mighty he's acting. You mad.
You invoke Marx above as a shallow negative barometer. It's amusing to me you think I'm the one without depth of understanding.
You can't have had much of a conversation with me or you'd know that I don't agree with Marx on much.
But you didn't point out an inconsistency here. Libertarians routinely call out rent-seeking.
Also, it's not clear why you think the value of your home would drop dramatically if the property became potentially developable for multifamily housing. It might well become significantly less valuable as a single family home, but that would no longer be the only potential use for it.
Allow me to explain that:
When you live in a single family residential area, and somebody builds an apartment building in it, life gets worse for everybody else due to the increased traffic on roads originally sized for a smaller population. Your home becomes less desireable on the real estate market due to that factor.
In theory, you, too, could do the same. But you're less likely to be approved to do it, because the first mover had the advantage of lower traffic, while you face a high chance of the local government saying you'd overload the streets. But maybe you'd profit anyway.
The third person is screwed for sure, along with everybody else who'd lived their before the change.
Again, your definition of everybody is telling.
You only care about people in your circumstances. No one else even registers as relevant.
There are costs to the people already there. But
1) there are benfits [though I'm open to them being less than the costs] and
2) libertarians, for better or worse, don't really go in for cost-benefit between government reg and no. That's a question they've already answered a priori.
It's incredible how often people need to keep explaining to you what libertarian means.
Sure, I entirely concede that there are benefits to people who didn't live in my neighborhood, and want to, if the house on the corner opposite us were torn down and replaced with a three story apartment building. We get worse traffic, they get to live in a (not as) quiet (as before) neighborhood. A good deal for them, a great deal for the owner of that house, and a rotten deal for us.
I said it was like his open borders obsession, didn't I? Make life better for the newcomers, and worse for the people already present.
You're setting up false us vs. them (and then discarding the benefits to them because they're not present).
And still doing cost-benefit.
You short-circuited cost benefit via an artificial tribalism you made up. Tribalism is maybe the worst reason to justify a regulation.
And yet again a *libertarian wouldn't even be doing cost-benefit!*
"When you live in a single family residential area, and somebody builds an apartment building in it, life gets worse for everybody else due to the increased traffic on roads originally sized for a smaller population."
Are you the civil engineer responsible for having planned this hypothetical road? No? Then you're just full of shit as usual.
No, I'm, literally, the guy living in a quiet residential neighborhood who had an apartment built five minutes away, and now the traffic is terrifying.
So forget about all the the apartment dwellers, you only care about what happened to you in particular. You're down to avoid that, no matter how regulations it takes!
Do you see why people are pointing out your take is biased all to hell, and anti-libertarian?
So, forget about all the people who bought homes in quiet residential neighborhoods, in the reasonable expectation that they'd remain quiet residential neighborhoods, as they had for the last half century. Their way of life must die.
But Somin's way of life? Perfectly safe. Because it's not YIMBY, it's YIYBY. Nobody's building a highrise apartment in Somin's toney neighborhood, it's the suburban neighborhoods where the houses are still affordable to the middle class that are targeted for destruction.
Somehow, in the details of most 'yes in my back yard' stories (and I use that word deliberately) is a revelation that it is more like 'yes in your backyard, or else'.
YIMBY: I want to build a shed in my backyard.
YIYBY: I want to rezone your whole neighborhood. Why not my gated community? That's different.
I think that's the the most glaring thing about this: Ilya allows for HOA's because they're 'voluntary', though it's questionable whether they're actually any more voluntary than zoning in practice; They've spread like a plague though few people actually want them. This suggests the 'voluntary' element is really a sham, that they're being imposed.
Note the details from that survey: While most people would rather not be under an HOA, (Including a plurality of those currently living under an HOA!) you're more likely to like HOAs if you're highly educated and well off. The poor particularly despise them.
So, so, folks like Ilya get their HOAs, sheltering them from the very changes he advocates, while the common man, whose protection is instead zoning, is to be stripped of their shield.
That's why it really IS YIYBY, not "YIMBY".
You're making a functionalist that HOAs only appear voluntary? In order to not argue against YMBY but attack Prof. Somin as a hypocrite for not sharing your opinion of HOAs.
Sounds good to me! I look forwards to you doing the same about de facto segregation and thus supporting civil rights laws.
Yes, I'd argue that HOAs are not really voluntary on the part of the people living under them. And possibly not on the part of the developers creating them.
While in theory an existing neighborhood can form an HOA, it never happens because doing so requires a degree of unanimity that you never get in the real world. HOAs formed by homeowners are scarcer than hen's teeth.
In practice, all HOAs are created by property developers before anybody is actually living on the land, and then get populated by people who, while they would rather not be living under an HOA, find that all the new houses are subject to them, and so have no real choice in the matter.
But, again, surveys show that HOAs are actually quite unpopular with people hunting for houses. So, why the hell are developers not catering to the large majority of potential customers who don't WANT HOAs?
This suggests that forming HOAs isn't really voluntary on the part of the developers, either, that there are some really strong legal incentives in place forcing the choice, or else that market for home buyers who do not want an HOA, (Who are a super majority of the customer base!) would actually be served.
This is not just a conspiracy theory. There's a lot of testimony out there that local governments are actually forcing the creation of HOAs by developers, as a way of offloading to the HOA costs of infrastructure maintenance that is ordinarily paid by taxes in non-HOA neighborhoods.
They're NOT being created voluntarily.
Your link to a 2019 post from 'https://independentamericancommunities.com/' a dedicated anti-HOA blog seems like you just Googled it up.
And oy that's an eyesore of a website!
It also doesn't back up any of its allegations.
'town votes not to have a bridge, says if the homeowners want it the HOA can pay for it' is exactly the shitty small governmentism you would otherwise love.
You found a government action that you like, and so your principles fold like origami.
So, what's your explanation for why basically all new housing developments involve HOAs, despite a large majority of the home buying public actively not wanting an HOA, and even the plurality of people living under them disliking them?
Why is the market not responding to public demand with HOA free developments?
I don't need an explanation.
Your 'lots of people are doing this it must be a conspiracy' is as stupid here as it is when you presume a coordinated conspiracy to keep conservatives out of academia.
Living with humans means there are tons of restrictions - public private and social - that people don't like but which still exist, no?
Are all of those due to a conspiracy?
"So, what's your explanation for why basically all new housing developments involve HOAs, despite a large majority of the home buying public actively not wanting an HOA, and even the plurality of people living under them disliking them?"
"basically all"
Basically all of your comments are unsupported horseshit Brett.
And again, the fact that this happens disproves your theory. Property developers aren't living in these places and have no stake in whether they're governed by HOAs. They're motivated to sell the homes as quickly and expensively as possible. The only reason for them to create the HOAs is because that's what the market wants.
Except that I linked to a poll showing that, in fact, that is NOT what the market wants. That people shopping for homes prefer not to have an HOA by a substantial margin, even a plurality of people living in HOAs would rather they didn't have one.
There are obviously reasons, but it's absolutely not market demand for HOAs.
Taking an opinion poll aboud aspirations as superior to the observed market, in determining what the market demands....an incredible take for a libertarian.
Or really any capitalist.
You're going directly agaist Hayek, and even Keynes liked markets quite a lot than you do right here.
Or it suggests that surveys are a stupid way to figure out market preferences when we actually have a market to look at.
Maybe you should write a book on how to buy a house in a neighborhood that's part of an HOA and opt out of the HOA. I bet you'd sell at least a few copies to hopeful folks easily parted with their money before the 1-star reviews would catch up with you.
Now, don't be so hard on the guy. He has to have SOME way of making sure all his cheerful "eat the NIMBYs" activism doesn't encroach on his own personal neighborhood.
You keep saying that, even though we know that's untrue because many people buy into them.
Divided or not the so-called movement is not big enough to really matter. It was a fight getting multi-family housing in somebody else's back yard in my town, packed into a small district that didn't have the votes to block the plan.
I will call out Lexington, Massachusetts for doing the right thing townwide. Mostly it's not happening.
Maybe you could instead start with zoning outrages that are actually unpopular, and unambiguously takings? Like the street nearby that was mixed use, and the city rezoned it to commercial only, despite most of the lots being occupied by family homes?
Now, one by one they fall into ruin, in a city desperate for housing, because as each owner dies or has to move away, the houses cease to be legally useable for their only feasible use, while no business wants the expense of tearing one down so long as there's any empty property left in the city.
Instead you go after the zoning that preserves the most popular form of housing in the country: Single family housing neighborhoods.
Zoning laws typically have grandfather clauses allowing nonconforming uses to continue. Most buildings in Somerville, Massachusetts are nonconforming. I have seen figures of 80% and over 99%. The goal of many cities is to make zoning so restrictive that in practice all buildings require special permits. In my area accessory apartments ("in-law units") used to require a special permit. The town was very clear that the purpose was to allow neighbors a veto. Your tenants should like classical music, not rap, if you want to get your permit renewed. They would never say so outright. That was the purpose of the law. State law has since allowed accessory apartments as a matter of right.
The goal of many cities is to make zoning so restrictive that in practice all buildings require special permits
Source for this?
The town was very clear that the purpose was to allow neighbors a veto
Sounds about right, from what I've heard about MA back in the day.
The 'you should care about this other thing first and since you don't I presume bad faith' has always been a bad argument.
Even if I gave a pass to border laws, the passion against YMBY among the supposedly libertarians on here has always been very revealing.
Look, libertarians recognize the value of coordination mechanisms to achieve collective goods, where the people getting those goods actually WANT them. Our problem is with coordination mechanisms that have been hijacked to impose things on people that they don't want.
But single family residential zoning is wildly popular, it's not being imposed on the unwilling masses. if you are setting out to reform zoning, it's about the last place you'd focus.
From Ilya's own announced motivation, his best bet would actually be to push converting commercial zoning to mixed use. That's not the least bit unpopular with the public, and wouldn't obviously destroy the residential neighborhoods most people like, so the expected push back would be much less. And it makes huge economic sense.
But instead he goes straight for the suburbs' jugular, every time. Why? What exactly does he have against the existence of suburbs?
single family residential zoning is wildly popular, it's not being imposed on the unwilling masses
Your definition of masses is telling.
Here you have eliding tons of people
Ignored the actual operation of the law on (the libertarian view of) property rights
Created a 'coordination mechanism' exception to libertarianism tailored to this argument specifically.
Nozick would hate you.
This is more evidence you've never been a libertarian; you just like the brand.
From Ilya's own announced motivation, his best bet would actually be to push converting commercial zoning to mixed use
Prof. Somin is not really a pragmatist; dunno if you've noticed. Saying he can't really be sincere unless he follows your policy prescription is shitty gatekeeping.
Do you see how above, I note that you are advocating for something explicitly not libertarian? And I provide evidence why? If you want to argue Prof. Somin isn't a libertarian, that's the rout you should take.
But you won't. Because you can't. Because while I disagree with a ton Prof. Somin argues, his liberarian ideals are impeccable.
From your Trump support, to your desire for social media regulation to this, your libertarian ideals are regularly revealed to be pretext.
On YIMBY, at least, you're not alone around here.
"Prof. Somin is not really a pragmatist; dunno if you've noticed. Saying he can't really be sincere unless he follows your policy prescription is shitty gatekeeping."
I'm looking at what he's trying to do, and contrasting it with his announced motivation, and seeing a serious disconnect. This makes me suspect he has motivations he's not talking about, maybe isn't even personally aware of.
Or else he'd be picking the low hanging fruit, not bypassing it for the hard to reach branch.
My definition of "masses" is "the vast majority of Americans.
Survey: Americans prefer single-family homes, low-density living
"Many surveys have found that the vast majority of Americans, including Millennials, prefer or aspire to live in single-family homes. But surveys rarely ask whether they prefer that single-family home to be in a low-density neighborhood or if they would mind living next to a bunch of apartment buildings.
However, a polling firm called YouGov recently asked Americans whether they though low-density neighborhoods were better than high-density ones. Specifically, they were asked whether low densities meant more or less congestion, more or less crime, and were better or worse for the environment. Planning advocates, of course, claim that high densities mean less congestion, are better for the environment, and have less crime because there are more “eyes on the street.”
Those density advocates apparently haven’t been able to persuade most Americans that densities are better. According to the survey, 75 percent of Americans think that low densities are better for the environment, 60 percent think low-density neighborhoods are less congested, and 62 percent think they suffer less crime. I happen to agree with the majority on all three points, but whether you agree or not, it is clear that most Americans want to live, not just in single-family homes, but in low-density neighborhoods."
The simple fact here is that Ilya, for whatever reason, has decided to fight a crusade against the exactly form of community most people want to live in. Like his open borders obsession, he's chosen a fight he can only win if democracy fails to constrain the government to obey public opinion.
Wanting the government to do unpopular things seems to be a theme with him.
People also all want higher incomes, time for redistribution?
I'm a liberal, I think government can do all sorts of good things. But 'this is a goal many aspire to' is not alone going to get me going let fly the dogs of government regulation.
That would be the actions of a cartoon leftist. Or you.
Democracy and libertarianism are often at odds. Even though you pretend you used to be a libertarian, you clearly never even grasped the concept.
By definition it is.
And here is where I take issue with a legit libertarian.
As the Lochner era showed, not all things the marketplace puts forth are automatically a willing exchange that maximizes freedom and resource use.
I've seen no evidence HOAs are a race to the bottom like 18 hour workdays are, though.
In any event, you can't employ "but, in a free market!" reasoning in the context of a discussion of zoning ordinances; The US doesn't have a free market in this area. We haven't had anything that could reasonably be described as a free market for most of a century.
Um, that's not how zoning works, Brett. Existing non-conforming uses continue to be allowed, regardless of a change in ownership. In the scenario you describe property owners might not be able to tear down their houses and put up new ones, but they can sell or devise their existing homes to new owners who can continue to use them as homes.
" Existing non-conforming uses continue to be allowed, regardless of a change in ownership."
No, simply no. That is NOT how grandfathering on zoning changes works, where did you get the idea that it worked that way?
Literally, I live in a suburb of Greenville, one of the hottest housing markets in the country, and not a five minute walk from home are multiple nice houses for sale with "commercial property" signs in front, that people would snap up in an instant if they were allowed to LIVE in them.
They're not, and one by one they're being abandoned and falling into ruin. In an area where housing prices have doubled in the last few years, we have so many people moving here.
That is indeed how grandfathering on zoning changes works. That's literally what it means. As long as the non-conforming use was formerly legal, and as long as the non-conforming use hasn't been abandoned, the property owner can keep using it that way.
Not....quite. Grandfathering is interesting, as is the use of "abandoned".
In the case South Carolina, you can get repair rules. If the home (as in Brett's example, was substantially damaged, and required major repairs...it could invalidate the nonconforming use. IE, if your home is hit by a hurricane and you need to repair it, you suddenly can realize you can't actually live there according to the zoning rules.
If the property owner is no longer "living" in the residence, and it is simply on the market for a period of time (6 months, a year), the use can be be considered "abandoned"....and then can no longer be used as a residential property. Even though the primary intended use never changed.
What "abandoned" means is a question of state law, and as I am not a SC attorney, I do not intend to opine on that specifically. But in general, the mere fact that nobody is living in a house does not mean its use as a residence has been abandoned. Contrast that to a situation in which someone decided to run a business out of the property; that would constitute abandonment.
As for repairs, it's true that significant alterations to a building can disqualify its nonconforming status. Most places exempt mere repairs, even meaningful ones, because nobody wants property owners to retain dilapidated buildings in place in order to preserve their grandfathered status.
"But in general, the mere fact that nobody is living in a house does not mean its use as a residence has been abandoned."
But here we're talking about a change of ownership, and grandfathering absolutely ends at a change in ownership.
"Regulations" are always an interesting discussion. And an awful lot of discussion seems to revolve around "zoning"...when that may not necessarily be the regulation that is driving up prices.
There are a host of regulations and permits required to build a property. Building codes, fire codes, environmental codes, environmental permits, etc. Many of these are not a percentage of value, but are a set price. And this does drive up prices, and because they are a set price, it makes it more profitable to build a "luxury" home rather than a "starter" home. If the regulations necessary to build a home (any home) equate to $30,000...well, makes more sense to build a more expensive home. Few people seem to be arguing "well we need to cut back on fire regulations and insulation regulations" though.
Zoning...may be a different question. Some might be "exclusionary". But some might not be. Roads, sewage systems, water systems, storm water runoff systems....these are reasons to consider zoning. A single family home is going to use less water and less sewage than an apartment building. Drop a few apartment buildings in an area that only had single family homes, and you can see sewage backups. Does it make sense to have zoning regulations in such a given example? Many would say yes.
Here in the San Francisco Bay Area, a region noted for high housing prices and rampant homelessness, the chief impediment to more housing isn't any particular resistance to higher density. Indeed, the state and most of the major cities already allow high-density housing development almost anywhere, so much so that rents have been falling for the past few years in the East Bay.
The real problem is the permanent removal of vast swaths of land from development. Many of these undeveloped lands are zoned for agricultural use only, despite being directly adjacent to some of the highest density development in the U.S. Other areas are removed from development by the establishment of large parks (county, state & national), wildlife refuges or watersheds, and still more are simply protected as “open spaces.” Anytime there is any possibility that one of these areas might be developed, the opposition and outrage over “urban sprawl” is deafening.
Anyone who has visited the Bay Area will marvel at its natural beauty. But living and working adjacent to the equivalent of a national park is a very expensive luxury item. Fortunately, razing Oakland's lower-income (and mostly Black) single family neighborhoods won't affect the value of Atherton's multi-million dollar mansions. But it will allow Silicon Valley's tech barons to brag about their Progressive values.
The key problem is imbedded within the language used to talk about the problem. "there's not a clear consensus about what kinds of homes we should build, how we should build them," It's that damned "we"! We don't build homes, homebuilders build them, what they build shouldn't concern us unless we're paying them to build it. As long as city planners approach zoning like they are playing sim city these problems will persist.