In over 40 years of litigating environmental and property rights cases on behalf of small and ordinary landowners across America, I have come to one inexorable conclusion: the erosion of property rights in America is a primary culprit for our housing crisis.
We all intuitively understand that property rights are the bulwark of our freedoms and democracy. Without rights in property, there would be little to stand between us and our government. If the government owned the traditional and online presses, could those presses speak out about government abuse? If churches were state-owned, would the government determine what is orthodox? And if the government could enter and seize private property with impunity, who would dare to look cross-eyed at a local potentate?
But what is less understood is how much our rights in property have been diminished over the past century, and how much that diminishment has led to our escalating housing crisis. I wrote my book, Nowhere to Live: The Hidden Story of America’s Housing Crisis, to lay bare how we got ourselves into the mess we’re in and, hopefully, how we can get out of it. It is both a history of the stories behind the cases that have cabined our property rights and a call for the sort of reform we need that will once again allow us to build the homes that people need in the places they wish to live.
I trace, for example, the ugly history of zoning in America to an incident in Baltimore in 1910. When a Yale-educated attorney and his school-teacher wife decided to move into an upscale Baltimore neighborhood, the neighbors were not happy. Within days, local youths hurled rocks at his home, and every window was soon broken. The problem? The neighborhood was all white, while George McMechen and his family were all black. The mayor and a majority of the city council soon obliged the mob and passed the nation’s first zoning law. The new ordinance made it a crime for a black person to move into a majority white neighborhood. Laws like this became wildly popular in the southern and border states. But within a few years, the Supreme Court found the law unconstitutional because it deprived property owners of their right to sell to whom they pleased. But, alas, this victory for property rights proved to be short-lived.
Fast forward to 1927, and the Supreme Court was confronted with economic zoning—zoning based not on race but on class. At issue was the adoption by Euclid, Ohio, of a zoning law that was designed to keep multi-family housing out of the Cleveland suburb so that virtually all development had to be single family homes on large lots. The problem that many people had with apartments wasn’t with the buildings themselves, but with the people who lived in them: the working class, immigrants, and minorities. Reasoning that apartments were akin to nuisances, the Supreme Court upheld Euclid’s version of exclusionary zoning. With the Supreme Court’s blessing, communities across America began to adopt zoning laws designed to—or at least tending to—exclude everyone except upper- and upper-middle-class whites from the more desirable places to live. In time, in many parts of the nation, these Americans would have a harder time finding a place to live and pursue the American dream.
In more recent times, zoning has been supercharged by environmentalism. Instead of protecting neighborhoods for people, we are protecting developable land from people. Vast acreages have been declared off-limits to housing through a combination of regulations restricting or denying outright the ability to build on or near wetlands, endangered species habitats, viewshed corridors, open space, agriculture preserves, and more. Find a spot of undeveloped land, and a committed deep ecologist can find a dozen ways to stop its development—or at least delay it into financial oblivion. There are stories in Nowhere to Live of projects that have suffered lawsuit after lawsuit, where environmental studies have cost millions, and where development is still stymied after nearly two decades.
As if this government-sanctioned malfeasance isn’t enough, we have also witnessed over 70 years of eminent domain abuse ever since the Supreme Court gave it a pass in Berman v. Parker. That 1954 decision allowed Washington, DC, to raze a vibrant mixed-race working-class neighborhood for urban redevelopment. And, in what would become a pattern for redevelopment projects for decades to come, the promised low-income housing never materialized. Nor, in many cases, did the economic nirvana of redevelopment. The working-class Poletown neighborhood in Detroit was razed for a General Motors plant. The plant has stood idle and abandoned for decades, while the homes and once-vibrant community are forever gone. Suzette Kelo’s neighborhood was leveled for a Pfizer Pharmaceutical headquarters. Pfizer left town, and the neighborhood is a weed-filled testament to failure.
Economist Assar Linbeck once wrote that the surest way to destroy a city—other than bombing in a war—is rent control. And yet city after city has adopted rent control, throwing a gut punch to the tens of thousands of small landlords who thought they had invested for their retirements. Nothing disincentivizes new building more effectively than rent control. And when governments across the nation, including the federal government, adopted eviction moratoria during COVID, the property rights of owners suffered yet another body-blow.
Many of the homeless people that we see camped out in cities across America are seriously ill or addicted to drugs. Up until the 1970s, many mentally ill Americans were warehoused in massive institutions. As I recount in Nowhere to Live, I met a number of patients when I was an undergraduate volunteer in one such institution. But in 1976, all the patients I knew excitedly told me they were moving—often for the first time in their adult lives—to halfway houses for six months. I asked them what would follow. They had no clue. Nobody did. Fiscal conservatives loved the idea of emptying out the institutions because it would save money. Liberals cherished the freedom the patients would enjoy. But no one had a long-term plan for the continuation of care for the ill. Instead, the sidewalks and jails of America began to fill with these victims of government neglect.
Failed government policy after failed government policy put us into this mess. If we want to get out of it, we have to allow people to build the homes people wish to live in in the places people want to live. We have to respect the property rights of landowners. The right to use own’s own land for new homes shouldn’t be stymied by zoning. Environmental laws should be enforced but balanced against the needs of the community. And they should never be exploited as a mere tool to litigiously delay and ultimately stop the development of housing. The property rights of the owners of rental housing must once again be respected. We must encourage, not make financially infeasible, the construction of new rental housing. The post-Kelo reforms to eminent domain abuse must be strengthened. It should not be possible to condemn a Motel-6 for a Ritz Carlton, or a family home for a pie-in-the-sky redevelopment dream.
The law of supply and demand is inexorable. Nobody has figured out a way to repeal it. Not North Korea. Not Venezuela. Not even the California legislature. People should be allowed to build the homes that people need in the places people want to live.
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