Environmental Justice, Property Rights, and Zoning

Dean Reuter:  Welcome to Teleforum, a podcast of The Federalist Society's practice groups. I’m Dean Reuter, Vice President, General Counsel, and Director of Practice Groups at The Federalist Society. For exclusive access to live recordings of practice group Teleforum calls, become a Federalist Society member today at fedsoc.org.

 

 

Guy DeSanctis:  Welcome to The Federalist Society’s webinar call. Today, May 2, we discuss "Environmental Justice, Property Rights, and Zoning." My name is Guy DeSanctis, and I'm Assistant Director of Practice Groups at The Federalist Society. As always, please note that all expressions of opinion are those of the experts on today's call. Today we are fortunate to have with us our moderator Adam Griffin, law clerk, U.S. District Courts.

 

Throughout the panel, if you have any questions, please submit them through the question-and-answer feature so that our speakers will have access to them for when we get to that portion of the webinar. With that, thank you for being with us today. Adam, the floor is yours.

 

Adam Griffin:  Thank you, Guy. And thank you to our speakers, The Federalist Society, and to everyone on our call. Today, we're here to discuss a hot topic in law and public policy: environmental justice and zoning. The Unites States Environmental Protection Agency defines environmental justice as "the fair treatment and meaningful involvement of all people, regardless of race, color, national origin, or income, with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies.

 

Another area of law and public policy receiving significant attention today is zoning, an area of law that's familiar to most people. The Black's Law Dictionary defines zoning as "the legislative process of dividing land into zones for different uses, such as industrial, open space, and residential." This panel will focus on the intersection of environmental justice and zoning.

 

Our esteemed panelists will explore the pros and cons of zoning, its relation to environmental justice, its detrimental or beneficial impacts on minorities, and its consistency or inconsistency with property rights. Importantly, the discussion will engage with the scope of modern zoning, and what, if anything, should be done to alter, increase, or decrease the government's zoning power.

 

Criticisms of zoning are on the rise from both the right and left. Critics focus on the ignoble racial history of zoning and its detrimental impacts on the housing markets, property values, and minority communities. Defenders instead look to the community stability provided by zoning, and the need for separation of industrial from residential property uses, as well as other benefits. This panel will present varying views from across the political spectrum, featuring both criticisms and defenses of zoning from the right and left.

 

Speaking first is Mr. Richard Rothstein. Mr. Richard Rothstein is a Distinguished Fellow at the Economic Policy Institute, and a Senior Fellow Emeritus at the Thurgood Marshall Institute of the NAACP Legal Defense Fund. He is the author of The Color of Law: A Forgotten History of How Our Government Segregated America, which recovers a forgotten history of how federal, state, and local policy explicitly segregated metropolitan areas nationwide, creating racially homogenous neighborhoods, in patterns that violate the Constitution and require remediation. He is also the author of many other articles and books on race and education, and he is currently finishing up a manuscript for a new book focused on what citizens can do in their local communities to remedy segregation.

 

Our second speaker is Christopher Serkin. He is the Elisabeth H. and Granville S. Ridley Jr. Chair in Law and Professor of Management at the Owen Graduate School of Management. He teaches and writes about land use and property law. His provocative scholarship addresses local governments, property theory, the Takings Clause, land use regulations, and eminent domain. His articles have appeared in the Chicago, Columbia, Michigan, New York University, Notre Dame, and Northwestern University Law Reviews, among other.

 

After graduating from the University of Michigan School of Law, Professor Serkin was a law clerk for Judge John M. Walker Jr. of the U.S. Court of Appeals for the Second Circuit, and for Judge J. Garvan Murtha of the U.S. District Court for the District of Vermont. Importantly for our current discussion, he is the author of a recent article entitled, "A Case for Zoning," published in the Notre Dame Law Review in 2020.

 

Nicole Stelle Garnett, Professor Garnett, is the John P. Murphy Foundation Professor of Law at Notre Dame Law School. Her teaching and research focuses on education policy and topics related to property law. In addition to dozens of articles, Professor Garnett is also the author of two books, including Ordering the City: Land Use, Policing, and the Restoration of Urban America, published by the Yale University Press in 2009. After graduating from Yale Law School, she clerked for the Honorable Morris S. Arnold of the United States Court of Appeals for the Eighth Circuit, and for Associate Justice Clarence Thomas of the Supreme Court of the United States.

 

Randal O'Toole, our final speaker, is a blogger on the Antiplanner. The Antiplanner is a blog dedicated to ending government land use regulation, comprehensive planning, and transportation boondoggles. Formerly, Mr. O'Toole was a Cato Institute Senior Fellow working on urban growth, public land, and transportation issues, where he published numerous articles and books, including American Nightmare: How Government Undermines the Dream of Homeownership.

 

Thank you to all of our esteemed speakers for being here today. Mr. Rothstein, the floor is yours.

 

Richard Rothstein:  Thank you very much, Adam. Thanks to all of you for joining with me in this conversation this morning. I wrote a book, as you know, called The Color of Law, which documents many, many federal, state, and local policies that, with racially explicit intent, created a segregated landscape in every metropolitan area of this country. For the purposes of this discussion, I'm only going to focus on one of them, and that is in the aftermath of World War II, the Federal Housing Administration and Veterans Administrations engaged on a racially explicit policy to suburbanize the white working-class population and prevent African Americans from joining that suburban exodus.

 

At the time, in the immediate post-World War II period, we were not a suburban country. Both black and white middle-class, working-class families mostly lived in urban areas. The Federal Housing Administration, and then Veterans Administration, designed to move the whites out of those urban areas into single-family homes in suburban communities. And that's the primary cause, not the only cause, but it's the primary cause of the suburbanization that we have today, which still consists mostly of white suburbs creating a noose around African American neighborhoods in urban areas.

 

The developers of these suburbs could never have developed them on their own. No bank would be crazy enough to lend them the funds to engage in these large developments at a time when we weren't suburban and banks thought nobody was going to live in these places. In my book, the place I focus on most is Levittown, as an example: 17,000 homes in one place. No bank would be crazy enough to lend Levitt the money to do that.

 

The only way Levitt could build Levittown east of New York City was to go to the Federal Housing Administration and Veterans Administration, request a guarantee of his bank loans to create the development, and, along with submitting all the detailed plans for his development, he also was required by the FHA and VA to make a pledge never to sell a home to an African American. The FHA even required Levitt to place a clause in the deed of every home, prohibiting resale to African Americans or rental to African Americans.

 

This was not the action of rogue bureaucrats at these agencies. It was written in the Federal Policy Manual, the underwriting manual issued by the FHA, which said that appraisers could not recommend for federal bank guarantees loans that would be integrated, for developments that would be integrated. The manual went so far as to say that you couldn't even recommend a federal bank guarantee for a loan for an all-white project that was going to be located near where African Americans were living, because, in the words of a federal underwriting manual, "that would run the risk of infiltration by inharmonious racial groups."

 

Well, with this kind of policy blatantly unconstitutional, in violation of the Fifth Amendment in particular, as well as in violation of civil rights laws going back to the post-Civil War period, which the Supreme Court had prohibited enforcement of, but, then, in 1968, recognized it had been wrong to do so, blatantly unconstitutional or unlawful actions on the part of the federal government -- with this policy, we created white suburbs that were inexpensive at the time, affordable both to African Americans and to whites.

 

Many African Americans could afford to live in these places. They had jobs in the post-war boom. Returning war veterans required no down-payment, under VA policies, for purchasing these homes. In today's inflation-adjusted dollars, they cost about $100,000. Any working family with a regular job could have afforded a home at that -- it was about twice national median income. You can afford, with a 20-year mortgage, a home, especially with no down payment required, for twice national median income.

 

Well, today those homes no longer sell for $100,000. They sell for $300,000; $400,000; $500,000. It's impossible for working-class families, even middle-class families to afford homes at that price, unless they have down payment assistance from their parents. And, of course, their parents and grandparents, who owned those homes, gained wealth from the appreciation in the value of those homes. They used it to send their children to college. They used it to finance, perhaps, temporary emergencies: temporary unemployment or medical emergencies. They used it to subsidize their retirements. And they used it to bequeath wealth to their children and grandchildren, who could then perpetuate the all-white nature of these suburbs.

 

Well, the suburbs, then, typically adopted zoning ordinances that permitted nothing but single-family homes, sometimes even on large lot sizes. These zoning ordinances effectively perpetuate an unconstitutionally-created segregation. And I'm not a lawyer; all of you are. But, in my view, a policy, a local regulation that perpetuates an unconstitutionally created segregation is, itself, unconstitutional.

 

Now, across the political spectrum, leaders in both Republican and Democratic parties oppose this. When Ben Carson took office as Secretary of Housing and Urban Development, he announced immediately that he was going to punish any suburb that maintained single-family-zoning-only zoning. He said he was going to withhold community development block grants from those suburbs. This was immediately after he took office. And we never heard from that vow again.

 

Democrats, as well, frequently vow to prohibit single-family zoning, but it's never something that becomes a priority in their policies. The reason is, of course, that both the Democratic and the Republican parties have political bases in suburbs, we call them NIMBYs, "not in my backyard," that are determined to preserve the segregation of their communities at any cost.

 

To conclude, I simply say, and I said it, I guess, a minute ago, that these single-family-owned-only zoning ordinances -- I'm not talking about separating residential from industrial or large commercial development. I have no opinion about those. Actually, my opinion is that I think they're perfectly legitimate. But to divide residential neighborhoods by type of housing, which effectively excludes people who have been unconstitutionally excluded and unlawfully excluded from those communities in the past, are subject both to legal challenge and to constitutional challenge. And they should be abolished.

 

Adam Griffin:  Thank you, Mr. Rothstein, for your excellent remarks. Professor Serkin, the floor is yours.

 

Christopher Serkin:  Perfect. Thank you. And I'm going to share my screen and hope this works. And let me know if you see my zoning and density screen. Great. Thank you very much for having me. I'm a great admirer of Mr. Rothstein's book, The Color of Law. It's a terrific book, if you haven't read it. I'm also an enormous fan of Nicole Garnett's work over the years. She's doing really important work in this area. So it's really a pleasure to be here on this panel.

 

So I've been writing about exclusionary zoning in cities for some time. Starting in 2013, I argued that exclusionary zoning was no longer the exclusive domain of suburbs with large lot zones. And I looked at the forms of urban exclusionary zoning, where I think the dynamics are importantly different. But maybe because I'm a contrarian, or maybe because I think the role of scholarship should be to highlight issues that are being overlooked in current policy debates, I've been thinking increasingly about the limits and some of the costs of current zoning reform efforts.

 

But I'd like to start by stating my priors up front, because I would prefer not to be accused of being some kind of crypto-NIMBY, although I already have been, and I'm sure I will be again. But I'm very much in favor of density and growth. I'm convinced by the critique that NIMBY neighbors have grown too strong, politically, in many places. I'm convinced by the critique that zoning has perpetuated racial segregation in many places.

 

But I also want to make sure that we are thinking clearly about the effects of zoning reform, because reform efforts are going to impose costs that we shouldn't ignore, even if we choose to pay them. And the effects are not going to be the same in all places.

 

So the zoning reform movement makes a number of related claims. One: soaring housing prices are partly, if not largely, the result of limited supply. Supply is limited, primarily, by zoning. And zoning, by limiting density, produces sprawling suburbs that are bad for the environment, that reduce social capital, and produce other harmful effects. Restrictive zoning is also a tool for racial and economic exclusion, either intentionally or unintentionally.

 

And I think these are all incredibly damning claims with a lot of truth, in a lot of places. The overarching prescription then, in zoning reform efforts, is to loosen or deregulate land use, in order to promote growth and density. California's been at the forefront. But the same dynamics are playing out in lots of other parts of the country.

 

But let me tell you a little bit about Nashville, where I live, because I'm on the faculty at Vanderbilt. So, Nashville, Tennessee has honkytonks. For no obvious reason, we have a life-size reproduction of the Parthenon. And we have tremendous development. There's very, very, light zoning in Nashville. Nashville has very permissive zoning ordinance. The city approves, basically every re-zoning that a developer proposes. I'm hardly exaggerating. And there has been enormous development in this city.

 

In a city of less than two million people, they've had 100,000 new housing units built since 2014. And there's been tremendous urban development downtown. What we've seen is one neighborhood, called "the Gulch," has dense urban high-rise living. It's a brand-new neighborhood. There are 6,000 units currently under construction, just in a couple of blocks. This is the form of development that I think zoning deregulation promises, and that zoning reformers are after.

 

But here's the thing. As fast as the urban core is growing in Nashville, its suburbs are growing even faster, and almost exclusively, through single-family housing development. And, as a result, despite all of this urban downtown growth, Nashville has become, on balance, less dense overall in the last decade, because suburban growth has so outpaced urban growth. You can see here where the growth has happened in Nashville. And it's in those southern suburbs that growth has been most intense.

 

And so Nashville, with its very permissive, loose approach to zoning, is neither dense nor, for what it's worth, is it particularly affordable. So this has made me wonder whether there's a relationship between zoning intensity and density. So I looked at the Wharton Land Regulation Index. This is not a great measure of zoning intensity, but it's basically the only one we have that covers the entire country, and other researchers have certainly used it. And with the help of a PHD student here at Vanderbilt named Kelsea Best, I plotted the restrictiveness of zoning intensity under the Wharton Index against density from the census bureau, by metropolitan statistical area.

 

And what you see is, in fact, very, very little correlation. And what correlation there is goes in the opposite direction than promoted by zoning reformers; that is, more restrictive zoning actually correlates with greater density. This is true once we remove outliers like New York City. It's true by region, although I don't have those charts here. It's also true for different city sizes, from large, to medium, to small.

 

Now, I want to be clear, I'm not making a causal claim here. The causation is likely to run in the opposite direction. Maybe, as places become more dense, they adopt more zoning. Or maybe there's a hidden variable, like the politics of denser places, that's actually driving the relationships that we see. These charts absolutely do not demonstrate that more restrictive zoning regulations will lead to greater density, or that looser zoning restrictions will lead to less density. However, if reformers' claims that loosening zoning will, necessarily, produce more density, these charts at least pose a question that I think we need to try and answer.

 

And, generally, I think there are three things going on [inaudible 00:20:06] that are worth highlighting. One, where zoning doesn't satisfy consumers' regulatory preferences, especially for stability, housing consumers may opt for what I call "private zoning" in the form of homeowners' associations, which I think are actually worse on most dimensions that reformers care about, whether it's segregation, supply restrictions, or whatever. Most suburban development in Nashville is in largely unzoned or very lightly zoned parts of Williamson County, but, all of it, almost all of it is happening in very restrictive homeowners' associations. This is true in other cities as well.

 

So, two: even where there is pretty lax zoning restriction, zoning regulation — like in Nashville, in a really growing place, like we are — developers, I think, actually can't keep up with demand. And it's faster and cheaper to build out in the suburbs. And that's where growth is happening.

 

And, third: I think consumer preferences are really sticky. And unlocking density is not necessarily going to actually produce density in all housing markets. So there are plenty of places where up-zoning will increase density, like a lot of New York City, and a lot of California. But there are other places like Nashville, like Phoenix, where the principal impediment to density simply is not restrictive zoning.

 

And so I think we need to be thinking clearly about what it is that we're actually trying to achieve here. What are our goals? Is it just growth? Is it density? Is it racial integration? I think the anti-zoning consensus, which I have labeled a "liberaltarian" consensus, because it, in fact, combines libertarians with liberals, actually hides a lot of disagreement about ultimate goals.

 

So with this in mind, how should we think about the role of [inaudible 00:22:10] today. So in the recent article of mine, "A Case for Zoning," — which, I should say, is not a full-throated defense of zoning, it is simply trying to articulate what it is that zoning does today — I argued that traditional justifications from Euclid v. Ambler Realty are just increasingly anachronistic. In a time when planners and consumers want mixed-use walkable development, the justification for zoning as primarily concerned with separating uses into single-use zones just seems out of date.

 

But as we engage in zoning reform, I think we need to ask ourselves how governments are actually using zoning today, not just for separating incompatible uses of land. So, one: I think zoning is used to allocate the costs of growth between insiders and outsiders. Zoning opponents will conjure images of cloistered, exclusionary communities using zoning and impact fees to raise the prices of new housing and exclude outsiders.

 

But another vision will look at smaller cities, some suburbs, as overwhelmed by uncontrolled development and growth, causing overcrowding in schools, congestion on roads, and burdens on insufficient infrastructure. We have selfish NIMBYs on the one hand, and rapacious and irresponsible developers. Both can absolutely be true. Indeed, sometimes they're true at the same time. The point is, though, that there's nothing internal to zoning that provides the right answer to what is ultimately a normative question about who should bear the costs of growth between insiders and outsiders. And zoning is a tool for allocating those costs.

 

Two: I think zoning constrains the pace of community change. I have my own argument that this can be important, because quick changes are more disruptive than slow ones. I think it's also worth pointing out that the Tiebout hypothesis, which is one of the mainstream accounts of local politics and local political dynamics, suggests that people vote with their feet for communities that satisfy their preferences.

 

I merely point out that if communities change rapidly, people are either left in places that don't satisfy their preferences, or are forced to incur the costs of moving. So if zoning doesn't provide the stability that housing consumers, in fact, look for, I think the choice is often not between more zoning and less zoning, but is, instead, between public and private zoning, in the form of HOAs.

 

And, finally, I want to argue that zoning, in fact, played a crucial role in the reorganization that we've, in fact, seen in the last 20 years. Zoning and land use regulations by cities empowered sub-local communities in ways that allowed cities to compete more effectively with their suburbs. And I think we need to understand those dynamics to make sure that our reforms don't put cities at a competitive disadvantage as we move into still a new era of urban and suburban growth.

 

So one critic responded to this last point that I couldn't be right because Houston and Phoenix have also grown during this period, despite lax zoning. But I think this just shows the problems in current zoning debate. If reform is aimed at promoting in-city and not just growth, as this person, in fact, claims, this critic claimed, then pointing to Houston and Phoenix as paragons of urban development in the absence of zoning is a very strange move. They're among the least dense places in America.

 

So I think we need to do a better job of understanding when loosening regulatory restrictions will, in fact, generate density, and not just growth, and when it will simply drive development in homeowner's associations and produce greater sprawl and more exclusion. And, more generally, I think we need to be thoughtful and candid about the goals that we're trying to achieve. Thank you.

 

Adam Griffin:  Thank you Professor Serkin. Professor Garnett?

 

Nicole Stelle Garnett:  Thank you so much for having me. And this is an amazing panel to be a part of. So I'm really, I'm privileged to be a part of the conversation. I'd like to make three points in response to what's already been said. And they're overlapping, kind of off-the-top-of-my-head remarks, based on reactions here. So the first is something that I think that Chris, Professor Serkin just emphasized, and that's, I think, when we talk about land use regulation in the United States, we need to think about what it is that the goals are of land use regulation.

 

So, one is something that Professor Serkin has emphasized in his work, which is stability of community. Others have emphasized this as well, both on the left and the right. So I think that that is one possible important goal of land-use regulation. I think zoning and other land-use regulations do, probably, support the goal of stability. But if that's our goal, we still have to recognize that the stability goal tends to benefit those who get there first.

 

And so, therefore, the people who are lucky enough to purchase a house in a neighborhood that may be protected by zoning laws from incursions, things that would drive housing prices down, or increase density, like, for example, me, who bought a house 23 years ago, across the street from the University of Notre Dame, in a 1919 house that's more than quadrupled in value, which is sort of nice, except for my property taxes. But I won. I got here first. I bought in cheap. And it's harder for people who, like me, would have been young professors with young — at the time, I didn't have any kids — to purchase houses in my neighborhood.

 

The people who can buy houses in my neighborhood now are rich people from around the country who can afford to buy an expensive house a couple blocks from Notre Dame so they can go to football games a few days a year or visit their children who happen to be here.

 

Okay. So that's one: stability. The stability benefits those who got there first. And those aren't necessarily the richest people, but they often are people who benefit. They are wealthy. The second — and this, I think, relates to what Professor Rothstein said — is that we should recognize, for example, that as minorities gain income and become more mobile, they're likely not to be the people who got there first.

 

The second is, perhaps we want density. I like density. I like mixing of uses. And I think that would be kind of a nice goal. And density is often promoted as a way of advancing another goal, which is housing affordability. But that's not necessarily the case. Many dense places in the United States are extremely unaffordable, I suspect, Nashville being one of them. And then, the final thing might be do we want land-use regulations that match with people's preferences? I notice Bill Fischel has a comment in the chat about suburbanization, starting around 1890.

 

When I teach about land-use regulation in the United States, I often teach, in my property class, I show the Schoolhouse Rock episode "Elbow Room." So everybody in the United States, we're like all smooshed on the East Coast, and we want to go -- it's very un-PC. It's all about manifest destiny. But it does capture this cultural thing that Americans actually like space. They like yards. They move to suburbs because they like them. They move to suburbs because suburbs give them amenities, the other amenities, like good schools, safe neighborhoods, lower taxes, big yards.

 

My children always complain that we have such a small yard. I told them that they get lots of benefits by being so close to Notre Dame. They don't believe me until they get older. So those are all different goals. What is the goal? And then, if we're going to have different goals, we might have very different land-use regulations. So that's my first point.

 

The second point I want to make is to think about -- we need to think about land-use regulation, not just in terms of zoning, but there are immense varieties of land-use regulation. Many places who are seeking to have mixing of uses, for example, kind of an anti-zoning, still have crazy regulations of land-uses. And those things can drive up housing prices dramatically.

 

In an article that I wrote with my colleague Peg Brinig, we studied the regulation of accessory dwelling units in California. And what we found is that even when the state of California mandated that single-family zones have accessory dwelling units, the cities would just regulate these things with like a death by a thousand paper cuts. So they would become completely unaffordable. The only people that could live in accessory dwelling units would be rich grandparents and maids of rich people.

 

So there's all kinds of land-use regulation. And, often, density proponents are very pro-regulation. They favor, for example, inclusionary zoning, which, as Bob Ellickson has shown, is often just a benefit for a few lucky middle-class people, and doesn't actually help very many poor people. They favor architectural controls. They favor -- we eliminate zoning, but then we move to something that's sort of like conditional-use permits for everything, which can be quite expensive and require people to hire architects and it's very -- so those things are going to drive up prices too. So there's a lot of land-use regulations.

 

And I think you could look at the places with the most land-use regulations. I think you'd see the least affordability. And I think one of the things that if you really want to -- I think one of the best articles on land-use regulation in recent years is the article by Peter Ganong and Daniel Shoag, which asks the following question, "Why did regional income convergence in the United States stop?" So rich places got poorer and poor places got richer over the course of much of the 20th century. And then, all of a sudden, it just stops. It's a great macro-economic mystery. Why did this happen?

 

And the theory is that the reason that rich places got poorer and poor places got richer is basically to say poorer people would move to places that had better jobs. And then that would bring the income down, perhaps, in California, but the income up in -- when the Okies moved to California, Oklahoma is slightly wealthier, and California is slightly poorer. And in their article, they study -- their hypothesis is the reason that this stops is that the land-use regulation is pricing poor people out of rich places.

 

So California has a lot of land-use regulation. Poor people can no longer afford to move to California. This actually affects the economy of the United States as a whole, interstate mobility and not just regional mobility, which we often think of as the main land-use problem, is people moving around within metropolitan regions.

 

So that's my first two points, is what are the goals of land-use regulation. The second is: think about more than just zoning, the varieties of land-use regulation, and, I would add, Chris, including covenants, obviously, and homeowners' associations.

 

And then the final thing is why do see so -- we see reforms, but why do we see relative stickiness with land-use regulation and zoning? Why don't we see more reform? And I think that is something that is particularly challenging to overcome in the United States. And the answer to that question is because most land-use regulations, including zoning, are in the hands of local governments. And local governments, the median voter tends to be a homeowner who likes land-use regulation because it protects their property values.

 

Local governments are trying to compete in the Tiebout market for homeowners. But they are trying to compete for the same people. And so local governments are not really all that thrilled about reforming land-use regulation, because most of the people who are electing people to be on zoning boards and on city councils really don't want land-use reform. And until we have some change in who the regulator is, I think we will see relatively little reform, especially in the suburbs. And that's important, because the people in the suburbs actually kind of like what they have. I don't particularly like the suburban model that zoning creates, but lots of people do.

 

And my final point about local governments being the regulator is that it is almost impossible to reform them, because local governments have a lot of power. They do two things. They run schools, and they do land-use regulation, is their two most important functions. And they are very, very, very jealous of those two functions, and unlikely to give them up. So thanks for having me. Those are my thoughts and reflections.

 

Adam Griffin:  Thank you so much, Professor Garnett. Mr. O'Toole?

 

Randal O'Toole:  Thank you. In recent years, we've been inundated with claims that single-family zoning has made housing expensive, and abolishing single-family zoning will make it affordable again. In response to these claims, Minneapolis, Oregon, and California, have all abolished single-family zoning. And yet, the claims are completely wrong. Focusing on single-family zoning not only won't solve the housing problem, it obscures the real culprit behind expensive housing. Single-family zoning does not make housing expensive.

 

Supposedly, it creates a cartel. But Kuwait alone can't make oil expensive, as long as Saudi Arabia pumps out as much oil as it can. And, in the same way, single-family zoning can't make housing expensive, as long as builders can build new homes. Every state and every urban area in America, even in Rhode Island and Hawaii, has plenty of land for more housing. As late as 1970, housing was affordable everywhere in the country, including California, even though every major city in the country except Houston had had single-family zoning for one to five decades before that.

 

Abolishing single-family zoning won't make housing more affordable. It may make it less affordable. First of all, the kind of multi-story, multi-family housing that planners want to see built, density, costs more to build per square foot than single-family homes. They're only more affordable because the units are smaller. So we're talking about substituting 1,100 square foot apartments or condos for 2,300 square foot houses, and saying, "Oh, look. They're going to be more affordable."

 

More important, Americans don't want to live in multi-family housing. They want to live in single-family homes, a preference that has been strengthened by the pandemic. Numerous surveys show that 75 to 85 percent of Americans prefer or aspire to live in single-family homes. And, in some states, more than 75 percent do.

 

There are really two housing markets: one for single-family, and one for multi-family. The vast majority of Americans have shown by their behavior and in polls that they regard multi-family housing as temporary housing to be lived in by people who plan on staying in an area only for a short time, or while they are trying to save enough money to buy a single-family home.

 

Apartments are no more of a substitute for single-family homes than compact cars are a substitute for pickup trucks. Flooding the market with one will not make the other more affordable, especially if compact cars or apartments cost more than pickups or single-family homes.

 

Americans also want to live in low-density neighborhoods, not just single-family homes, but neighborhoods of single-family homes. A 2018 Gallup poll found that 40 percent of people who live in big, dense cities wanted to live in somewhere else, while more people wanted to live in low-density suburbs and rural areas than actually live there. A more recent survey found that most Americans believe that low-density neighborhoods have less crime, less traffic congestion, and are better for the environment. I happen to agree with them. But even if you don't, the point is, that's what Americans prefer.

 

The pandemic has allowed more people to telecommute, which means they can live anywhere they want. And those people are moving to suburbs and exurbs, not to dense cities. Abolishing single-family zoning and allowing developers to replace single-family homes with apartments will create a surplus of housing in neighborhoods that people don't want, while increasing a shortage of housing in neighborhoods that people prefer.

 

Density doesn’t make housing more affordable. The densest urban areas in the country are in California, and not only are they the least affordable, as their density has increased over the past few decades, their housing affordability declined. Nationwide census data reveal a clear negative correlation between density and affordability. The fetish for density is completely out of touch with what most Americans want.

 

The real reason why housing is expensive in many areas is growth management policies such as urban growth boundaries that were implemented in the 1970s through the 1990s in an effort to stop urban sprawl. A Russian once said that Americans don't have real problems, and so they have to make them up. And urban sprawl is one of those made-up problems.

 

All of the urban areas in the country occupy well under five percent of the nation's land. We have three times as much agricultural land as we actually use for growing crops. Our forests are growing wood far faster than we consume it. So anti-sprawl rules created artificial housing shortages in order to protect things that we have in abundance. Density advocates also claim that people living in dense housing drive less, and so they use less energy.

 

Department of Energy data show that multi-family dwellings use more energy per square foot than single-family. They do show that people living in dense cities drive a little less than people living in low-density suburbs, but the data also show that people living in dense cities drive in more congested conditions, which ends up using more fuel and emitting more greenhouse gases per capita than people in the suburbs.

 

Due to the false fears that we are running out of land, between 1961 and 1992, Hawaii, California, Oregon, Washington, Maryland, Florida, New Jersey, and several New England states passed growth management laws, while Denver and a few other cities in Colorado and Montana adopted growth management plans. These are the places where housing is expensive, while fast-growing urban areas like Atlanta, Dallas, Charlotte, and Indianapolis remain affordable, because they don't try to restrict suburban development.

 

Cities responded to the high housing prices by adopting policies that looked good at first glance, but actually made housing even more expensive. Inclusionary zoning leads builders to construct fewer homes and charge more for the homes they do build. That makes housing more expensive for everyone, except for the lucky few who get a below-cost home.

 

Other cities tax new homes, making them more expensive, to provide funding for affordable housing. Others pass rent-control ordinances, even though almost every economist in the world that rent control reduces the long-run supply of housing. The movement to abolish single-family zoning is only the latest of wrong-headed solutions that make housing even less affordable.

 

The most recent housing price increases are due to supply-chain difficulties. It's worth noting that the COVID-relief bills passed by Congress in 2020 and 2021 spent 70 billion dollars on urban transit systems that almost no one was riding, but didn't spend a single cent on relieving supply-chain problems. In the face of such problems, abolishing single-family zoning and encouraging builders to build multi-family housing will only worsen material and labor shortages for the construction of single-family homes that Americans want.

 

Labor and supply-chain problems will eventually work themselves out, but the growth management laws remain on the books. No one can sincerely claim to care about housing affordability without demanding that those growth-management laws and plans be repealed. Those who support abolishing single-family zoning so we can build more apartments are betraying both existing homeowners and prospective home buyers. Thank you.

 

Adam Griffin:  Thank you so much, Mr. O'Toole. So we are going to now turn to everyone's response time. Everyone has five minutes for response. Professor Rothstein, we'll start with you. And we'll go in the same order. But Professor Serkin, and Mr. O'Toole, and Professor Garnett, if you don't mind, after Rothstein goes, maybe we can move Professor Garnett to second — because I know she has to jump of at 12:30 — so that she could have some time for response.

 

Richard Rothstein:  Well, thank you. I will first reject the promotion to Professor.

 

Adam Griffin:  I apologize.

 

[crosstalk]

 

Richard Rothstein:  I'm just kidding. Let me say first of all that zoning is not the sole problem we have. I certainly agree that supply is a big problem. And the inaccessibility of housing to many people is, in large part, due to a shortage of supply. And there are many causes of that. One is that housing costs, the construction costs of housing, can become unaffordable to working- and middle-class families for a whole variety of reasons, quite aside from the growth in land costs.

 

And so far as Professor Serkin's comment, I wasn't clear if his comments were directed at single-use zoning or all zoning. My comments had nothing to do with zoning that restricts the combination of industrial and residential zoning, for example -- residential uses, for example. What I was referring to is residential zoning, which I think is appropriate, perhaps, with some mixed-use permissions for small retail, but residential zoning that excludes certain types of residential zoning.

 

And, again, I wasn't referring to -- and one of the comments of the succeeding commentators suggested the alternative is large apartments, versus single-family homes. Single-family zoning doesn't just exclude, and in most cases, doesn't really prevent -- it's not apartments that are the issue, it's townhouses, it's garden apartments, it's more accessible, in some cases, single-family homes, but they're not on large lot sizes. I don't know if you consider an attached garden apartment a single-family home. But it's homeownership that is not single-family, on large lot sizes.

 

And that's -- today we have a housing crisis that is not just a crisis for low-income families. Working and moderate-income families who are disproportionately African American can't afford housing, can't afford home purchases. We know that the white homeownership rate is about 70 percent. The black homeownership rate is about 40 percent. We can't narrow that inequality, simply by building single-family homes on large lot sizes.

 

And in many communities that I was referring before, and I will repeat again, suburban communities preventing garden apartments -- the missing middle -- garden apartments, townhouses, as well as small apartment developments is what's keeping those neighborhoods all white, keeping them exclusive. Community stability is fine, so long as stability isn't defined as racial homogeneity. And creating a residential community that has mixed types of housing is not a threat to the kind of community stability we want. Indeed, in this country, we need to invent a different kind of community stability that is not based on racial exclusivity.

 

I don't know if I've used up five minutes of not, but I'll stop there for now.

 

Adam Griffin:  Very close. But thank you. Those were great remarks. Professor Garnett?

 

Nicole Stelle Garnett:  Thanks. I just want to make a couple of quick follow-up points. So the first would be just to respond to Mr. O'Toole's point about single-family zoning. I do think that it is important, when we talk about land-use regulation in the United States, to recognize that we need to understand what people want. Now, I actually am not a big fan of zoning. I don't like it. I think it's sort of a progressive-era form of regulation that sort of is the scientific management of the economy, which I think has been proven wrong over, and over, and over again in many other areas.

 

And the only reason we have the persistence of zoning goes back to my previous point. It's because it's in the hands of local governments. And so I would design a different method of regulation from scratch. But we have the one that we have. But, that still said, I do think zoning often reflects the preferences of Americans, including Americans of all races and all classes, which is that, like it or not, their preferences, the preferences of average Americans, do not necessarily match the preferences of elites.

 

Average Americans, most people, like single-family homes with yards in the suburbs. And so, therefore, the real, real crisis for land-use regulation, if we care about affordability and integration, it is not density, but it is the exclusionary use of land-use regulations by suburbs. And so I think that we just need to keep that in mind.

 

I do think, to your point, townhouses are a great example, even then. My second point would be, let's take exclusionary zoning where all kinds of buckets of regulation result in exclusion. Townhouses and garden apartments are, it's systematic, often excluded from suburbs. I think that's changing. If you drive around many cities, you'll see there are a lot more of them now. And many people would prefer to live in a townhouse in the suburbs than they would in a high-rise apartment in the city, particularly if they have children. They probably would still prefer to live in a house with a yard. But they would prefer to live in a townhouse.

 

And so that regulation that allows those kinds of mixing of uses and multi-family housing, particularly housing like townhouses, where the units are separated by walls and not floors. Someone pointed out walls are better at absorbing noise than floors. So if you have a family, you would prefer to live in a townhouse than in an apartment.

 

And the final point I will make is that we will not fix this problem in the United States until we recognize how closely paired our land-use problems, our land-use affordability debates are related to our education problems. Because people want to move to the suburbs for good public schools. And most people with children choose to do so. That's the way we choose schools in the United States. Education is my other hat. But the connection between education policy and land-use policy in the United States is really a critical thing that we need to attend to. Thanks.

 

Adam Griffin:  Can I ask a quick question, since you have to jump -- unless you have to jump off right now. What would be the educational solution? What is the elevator pitch education solution that would help or alleviate some of the land-use problems?

 

Nicole Stelle Garnett:  Well, like zoning, no one would design our education system the way we have it, from scratch. So I don't have a particular solution. I think that there are so many, we have such a jerry-rigged education system, and schools in the hands of local governments, which has pluses and minuses. I think more choice, more charter schools, more varieties of private school choice, combined with public school choice across district boundaries. All of these things are important so that people who wish to be mobile with their children's education have more options. I think that is important.

 

If you could live in downtown Chicago and send your kid to Winnetka public schools, you might be more likely to live in downtown Chicago, leaving aside the transportation problems. But I don't have an elevator pitch for how to fix public education or education in the United States. I'm a both/and kind of person: lots of good ideas, lots of good reforms. We don't know exactly what works, so we should try a lot of things.

 

Adam Griffin:  Great. Thank you so much. Professor Serkin?

 

Christopher Serkin:  Terrific. So I warned you at the beginning, I'm a contrarian. So let me say three things that I expect will be provocative, especially in this setting, but in response. So, one: there's a real question about the extent to which zoning should be responsive to or cater to the preferences of Americans, as opposed to the sort of elite policy-makers designing urban policy. I think that's an important question, something to discuss.

 

But I do think it's important to point out that catering to preferences is fine up until they start to impose costs on everyone else. And, at a certain point, that's where regulation needs to come in. And, unlike Mr. O'Toole, the data that I have been looking fairly closely at does show that the carbon emissions associated with suburban sprawl are just much, much, higher than carbon emissions, per capita carbon emissions, with dense urban form.

 

And so that is a reason, even if it is true that Americans might prefer to live in large-lot single-family homes out in the suburbs, to actually not cater to that preference, because the cost that it imposes on others. And I'm someone who's very motivated by concerns about climate, in that regard.

 

Two: I actually think -- so, again, one of my big concerns, and this is in response to Mr. Rothstein -- my point here, one of my points is that we have to recognize that housing consumers have a ready alternative to single-family zoning, and that is homeowners' associations. And I think that homeowners' associations are worse, in most ways. I think they reinforce segregation more than zoning. I think they restrict supply more than zoning. They impose a lot more restrictions than zoning does. And if the consequence of zoning reform is to drive people to HOAs, I think that's a real problem.

 

I actually think that California has done something quite innovative, although very controversial, in that it has, it is now allowing accessory dwelling units in homeowners' associations, even where the covenants, the master deeds, prohibit it. To me, that is a way of actually addressing the concerns about competition between HOAs and zoning. But, boy, is that controversial. And I expect that there's going to be litigation around that.

     

And, third, and this is in response now to Professor Garnett, I also think that Ganong and Shoag article is just terrific and important. But I think there's another dimension here about why inequality and regional inequality has been increasing since the 1980s. So economic theory, as you noted, predicts that regions, over time, will have economic convergence, as mobile capital moves to cheaper places, jobs follow the mobile capital. And what we will have is general convergence. And we saw that for the first 80 years of the 20th century, exactly as economic models would predict. Ganong and Shoag blame zoning for the increasing divergence that starts in the 1980s.

     

But I think there's another dynamic, an additional dimension. This isn't a substitute, but an additional cause that hasn't gotten the attention it should. And that it is a set of de-regulatory national policies in the 1980s that created a kind of winner-take-all economy. So, as we de-regulated our transportation infrastructure, as we stopped enforcing anti-trust laws, as we changed how trade policy was negotiated, the effect was to make it much, much harder for a lot of smaller cities to compete with New York and San Francisco and Los Angeles and Chicago.

 

And so what we see is a winner-take-all economy that is the result of de-regulation. You can't run an international corporation from a place where there are no direct flights to anywhere. And I think that that resulted in such intense demand, housing demand for those places, that housing markets couldn't satisfy. So another kind of response here is to make sure that we're making the kinds of investments in the rest of the country that actually would make it less imperative for people to move to New York to climb up the economic ladder.

 

Adam Griffin:  Thank you, Professor Serkin. And Mr. O'Toole?

 

Randal O'Toole:  Thank you. I've heard several people say things that make me feel like there's a misconception that the United States has a short supply of land. And this makes large lots expensive and creates a barrier to housing for people when zoning requires large lots. In fact, we have an abundance of land in this country. It's our most abundant resource. All the urban areas in the country occupy three percent of the land. And, in the absence of growth management regulations, land is the least cost of housing. It's the least important cost. So the size of the lots doesn't really make much of a difference to the cost of housing.

 

And requiring people to have smaller lots or townhomes or zoning for that doesn't really make housing more affordable. It does create more density, which benefits those people who think that other people should have to live in density. Just as the Onion once reported that 98 percent of American commuters think other people should ride transit so they can get to work on uncongested roads, there's a lot of people who think other people should live in density so they can live in their low-density suburban paradise and not be bothered by sprawl outside, beyond where they live.

 

There is some NIMBY stuff going on here. But if we don't have rural regulations on development, then low-density development will take place and housing will remain affordable, just as it has remained affordable in Atlanta and Dallas and Houston. And Houston and Dallas are an interesting comparison because Houston has no zoning. Dallas does, and yet, housing prices there in those two cities are pretty much tied. At some points, Houston gets a little more expensive. At other points, Dallas gets a little more expensive. But, basically, housing prices are the same. So it's not zoning that's the problem.

 

What is notable is that if you talk to people about zoning and say, "We want to relax your zoning to allow for more dense development, or townhouses, or whatever," they will get upset and say, "You're taking away our property rights." They regard zoning as a property right. And I think, historically, they're correct. Bill Fischel pointed out that suburbanization began in 1890. I would argue it actually began in 1835. And as new transportation technologies developed, new waves of people ended up taking advantage of the ability to live in suburban areas. So that really is the American dream.

 

Homeownership rates in 1890 in urban areas were about 17 percent. And zoning was developed as a way to give people security so that they would -- if they bought a home, they wouldn't feel like they'd be losing their home value, their investment, if somebody next door decided to put in a gravel pit or a grocery store, or a doctor's office, or whatever. And so when zoning was developed, that led to a rapid increase in homeownership, because people saw it as protecting their property rights, their right, basically, to live in a low-density neighborhood.

 

Now, as for carbon emissions, it's a lot easier to encourage people to build zero energy single-family homes than it is to encourage people to live in multi-family housing. They don't want multi-family housing, but the cost of making a home a zero-energy home, if you're building it new, adds maybe ten percent to the price of the home. That's not a very big cost, compared to the cost of high-density housing, which could add two or three times to the cost of a home.

 

Housing issues have, because of the increase in homeownership rates between 1890 and 1960, because the working class were buying lots of homes in single-family neighborhoods, income and wealth inequality declined to its lowest level in American history in the 1960s. Then cities and states began adopting growth management policies that made housing expensive. That, in turn, made inequality greater. An economist from MIT named Mathew Rognlie has proven that housing disparities are the main cause of the growth and wealth inequality since 1970s.

 

So what we need to do is get rid of those urban growth rules, allow people to build large housing developments in suburban areas, and, if you look at Texas, where there is no zoning in the counties, the developments people build, and the developments people buy are basically large-lot subdivisions, because that's what people want. And they are very affordable compared to anywhere that has growth management. I think that's what we need to do.

 

Adam Griffin:  Great. Thanks, everyone, for their responses. Let's go through some of the questions. We have several questions in the queue. Tanya writes, "I live in a suburban city north of the DFW Metroplex that is growing rapidly each year. In my city, our planning and zoning committee has a citizen's team group that has major influence made by our city council and planning department. In your opinion, what are three major points that planning and zoning committees in fast-growing suburbs should focus on?" So three major points that planning and zoning committees in fast-growing suburbs should focus on.

 

Randal O'Toole:  Well I would argue that it depends on where the fast-growing suburb is. If you're in the DFW area, that's quite different than if you're in, say, the Washington D.C. area, or in California, or someplace like that, because you've got quite a different environment. In the DFW area, counties in Texas aren't allowed to zone. So any unincorporated areas, developers can build whatever they want.

 

So the first point that a city has to take into consideration is if they have vacant land, if they regulate it too much, developers aren't going to want to build there. They'll just go across the city boundary and build whatever they want. So they have to care about that. If you're in California, then you have to think about tax structure. Under current tax structure, retail developments end up providing a lot more taxes to cities than housing developments. And so cities end up promoting retail and discouraging housing because they want those tax revenues. It's really hard to get them out of that mindset. So the answer to the question depends on where you are.

 

Christopher Serkin:  So I would just jump in and I would agree with Mr. O'Toole that it varies a lot by place. And not knowing the suburban area described here by Tanya, it's very hard for me to answer with any sophistication about what the focus should be. Because I think it really varies. Nevertheless, I think, in general, right now, I think focusing on supply, becoming less afraid of growth in housing is really important in most places. We need more housing. And there is a kind of allergic reaction to growth in a lot of places that I think is counter-productive and really problematic.

 

But I think it also has to be really focused on, in tandem with planning for infrastructure and supply, and being thoughtful about infrastructure demands and burdens, and maybe promoting transit-oriented development and things that will lessen the congestion on infrastructure. It will be an important piece of the puzzle.

 

Adam Griffin:  Right. Another question says, "Some of the commentators seem to criticize local regulation areas like zoning, school finance and control. Legally, this control has been devolved from states through home rule provisions. So, presumably, their state legislatures can take it back to address the consequent ills where they appear. But to what extent do principles of federalism auger in favor of some degree of local control, as they do for some degree of state versus federal control? Or does a strong reading of the Takings Clause undermine zoning from the level of government, in favor of the owner's right to do what they want with their land?"

 

      So, in part, it's a question of, should states be taking back zoning authority to remedy some of these problems, and/or do we have a situation where the Constitution or the Takings Clause or the Fourteenth Amendment would limit what zoning can -- how much regulation of property zoning can be used for.

 

Christopher Serkin:  I'll jump in, if I can. One, to note that Bill Fischel is in the audience here. His name has been invoked a couple of times. And he's one of the leading experts in this area and these interactions. I do not think that the Takings Clause does, in fact, provide really meaningful constraints on most zoning ordinances, nor do I think it should. I think it is a mistake to constitutionalize a lot of this.

 

As for whether state should, in fact, preempt local authority, or take power back from local authority, this is one of the big fights right now. There are a lot of arguments for states preempting local zoning. Among the most thoughtful responses to this argument comes from Rich Schragger at the University of Virginia. And he points out, I think, very thoughtfully, that, while we certainly have to worry about the kind of political dynamics and NIMBYism that we see at the local level, we shouldn't feel a whole lot better about the political dynamics at the state level.

 

That is, we might say preemption is going to solve a lot of the zoning problems. But it might just replace some of the dysfunction we see in local land-use authority with a different kind of dysfunction at the state level. And so I would tend to agree that there is value to local control in at least many places, depending on how it's exercised. All of this needs to be a lot more granular than just "states are good, local governments are good." Context really matters.

 

Randal O'Toole:  Let me just say that every state that has preempted local authority on zoning has made housing more expensive, and not just a little more, a lot more -- in some cases, five times more expensive than in places that haven't preempted local authority. So I would not be in favor of that.

 

Adam Griffin:  Mr. Rothstein, do you have any comments on that point?

 

Richard Rothstein:  No. I don't. No. I think that, as I said at the very beginning, we don't have the political context to solve problems that many of us are talking about today. And if we had a different political context, all of this would look very, very different.

 

Adam Griffin:  What do you think are some of the solutions that we can do to solve this? How can we change that political context to address some of this?

 

Richard Rothstein:  Well, I don't think there's a single solution. I think that my main concern, as you know, is the effects on racial inequality that single-family zoning has. I don't disagree that people like single-family zoning. But that, to me, doesn't overcome the fact that what people like may be increasing our racial inequality in an unconstitutional or an unlawful way. So, I think, even if we abolished single family zoning in suburban communities, even if we, as Minneapolis and some of these other places have done, incentivized more housing construction, even of townhouses and garden apartments, housing has become unaffordable.

 

In the near term, even the medium term, to people who were unconstitutionally excluded in the past, they're going to need subsidies. And that's completely off the present agenda, is racial explicit subsidies to people who were unconstitutionally excluded from many of these communities. So I don't see an immediate solution. I think that there are many, many things that we need to do simultaneously: increasing supply, abolishing single-family zoning.

 

I think Mr. O'Toole said that housing is the greatest cause of wealth inequality. He's absolutely right. It's not the greatest cause of income inequality, which has grown even more than wealth inequality in the last 40 years. So all of these things need to be addressed simultaneously. And focusing on any one, I think all the objections all of you can make to focusing on one of them are absolutely right. If you don't do a lot of other things at the same time, they're not going to accomplish what we need to do.

 

Adam Griffin:  Thank you. Bill Fischel asks, "Suburbanization started around 1890 in the U.S., not just after World War II. This is standard economic textbook knowledge. Suburbanization is also widespread in the rest of the developed world. Given this, how can Richard claim that it was all due to deliberate government acts in the U.S? This is not to deny racial animus by local governments. But could overclaiming the influence of race make it hard to remedy racial problems?"

 

Richard Rothstein:  Well, I didn't claim that suburbanization started post-World War II. I said the suburbanization of working-class families was promoted primarily after World War II. Of course we had suburbs. But those people living in suburbs weren't factory workers and we were primarily a manufacturing economy. They weren't the service industries that serviced those factories. Factories needed to be located near deep-water ports and railroad terminals.

 

Working-class families, for the most part, didn't have automobiles. They needed to live relatively close, both whites and blacks, to the factories where they were working. So Bill is right — as he is about a lot of things — that suburbanization started long before the end of World War II. But the suburbanization of working-class families and lower-middle-class families intensified greatly after World War II, largely because of federal policy.

 

Randal O'Toole:  Actually, suburbanization of working-class families started in the 1920s when Henry Ford developed the moving assembly line for making Model T Fords. He not only made it possible for workers to afford to buy their cars — which they couldn't afford before, for working-class people — he promoted the movement of factories to the suburbs, because factories that were based on moving assembly lines required a lot of land. So the factories moved to the suburbs. Working-class people now had the transportation to be able to live wherever they wanted. And so large numbers of working-class people were moving to the suburbs in the 1920s.

 

Then we had the depression. Then we had World War II. And then we had people saying, at the end of World War II, such as Henry J. Kaiser, that we needed to get on it, make it possible to rebuild housing rapidly, and that's what led to the FHA. And while the FHA's segregation rules were terrible and shouldn't have been done, as urban economist Edwin Mills noted in 1999, they made more of a difference as far as who got to move to the suburbs than how any people moved to the suburbs and where they moved.

 

So, we would have had suburbs anyway, without those rules. And, right now, I think blacks are moving to the suburbs in large numbers, as well as other minorities. So, to me, the problem of race is not the issue. The problem is affordability. And the solutions to affordability that I hear all make housing less affordable.

 

Adam Griffin:  Thank you. Wesley Paisley asked, "How about local governments where most of the voters are apartment renters?" Well, this was particularly asked towards Professor Garnett. But does anyone have any views about when local governments are mostly voters of apartment renters or the numbers are on par with homeowners, but there's more renters in the area than homeowners, how that affects the whole government?

 

Christopher Serkin:  So, the conventional story — in fact, again, by Bill Fischel, who probably should have been on this panel — is that there's a real difference between what he called home-voter jurisdictions, which were governed primarily or dominated by homeowners, and other larger jurisdictions. In recent work, more recent work, though, by Vicky Been and coauthors, they've shown that even in New York City, which is one of those markets where there are a lot of renters, the dynamics that we observe in local politics now are increasingly home-voter-style dynamics.

 

There was an article she wrote called "City NIMBYs, " and discovered that long-term renters will behave much like homeowners for purposes of zoning and NIMBYism, is my recollection of her very sophisticated argument.

 

Adam Griffin:  Thank you for that. The next question was Jim Burling asks, "There is also the issue of neighbors being regulators through litigation, a problem especially prevalent in California, through CEQA litigation. This makes it very difficult to build both green fuel development and development that increases density in already developed suburban areas. Is there a potential that reforming zoning will lead to substitution of zoning by litigation?" Any thoughts?

 

Richard Rothstein:  Only that, yeah, I agree. And that's why I say we need to be focused on many, many aspects of this simultaneously. CEQA, in California, has empowered NIMBYs to figure out ways of stopping the construction of housing in their communities. That CEQA law should be modified, should be reformed so that it doesn't give that permission. We've got to chew gum and cross the street at the same time. No one solution is going to solve it.

 

      I do want to, though, if I can, Adam, respond to one thing that Mr. O'Toole said. It is not true that Henry Ford was building factories on large rural lots because he needed single-story assembly lines. He was building multi-story factories prior to the beginnings of the interstate highway system in the 1940s and '50s, the highway system and interstate in the 1940s and '50s.

 

I can give you a couple of examples. Fort Lee New Jersey, at the foot of the George Washington Bridge, had a multi-story Ford plant, until the 1950s when the plant could move to a lot of rural land in Mahwah. In Richmond, California, I've written about this one a lot, Richmond California was a multi-story Ford plant that was closed in the 1950s when suburban white-only suburbs were open, provided lots of land for these factories. So I just wanted to respond to that one -- maybe it's a quibble, but I wanted to respond to that one point.

 

Randal O'Toole:  Well my point was that in 1920 most urban jobs were in factories. And most factories were located in downtowns. And they were vertical. Like you say, they were multi-story. But with the development of moving assembly lines, not just Henry Ford, but all factories found it more expedient to use more land, and they've moved out of downtowns. You find very few factories in downtowns today, because they require so much land. So factories moved to the suburbs and then people moved to the suburbs. They actually followed the jobs, rather than all moved to the suburbs and then had to commute downtown as some urbanists fantasize.

 

Richard Rothstein:  No, I don't disagree with what you just said. Our only disagreement is about the timing of moving to single-story large assembly-line plants. I don't think it happened in the 1920s, as you suggested.

 

Randal O'Toole:  Well, Ford's Rouge River plant, which he built in the 1920s, was bigger than downtown Chicago, bigger than every downtown in the country, except for downtown New York City. And maybe there were some multi-story parts of the factory. But it was a huge place.

 

Adam Griffin:  Another last question. "Is there an argument for legislation to limit zoning and NIMBY restrictions, akin to the land-use protections offered by RLUIPA, the Religious Land Use and Institutionalized Persons Act? Is there an opportunity for legislation on that scale for curbing zoning and NIMBY restrictions?"

 

Randal O'Toole:  Well, let me address that a little bit indirectly, by addressing the previous question, which was, do NIMBY problems -- are we going to have zoning by lawsuits if we get rid of zoning? And the answer to that, it seems to me, is it depends on the state. In states like Oregon and California, where the states have preempted local zoning and have passed a bunch of rules that require citizen involvement, people here feel like they're entitled to have a say on what happens on everybody else's land in the state.

 

I know of cases where somebody said, "I drive by a property once in a while, and I like to look at the birds, so, therefore, that gives me standing to have a say on what they do." And they successfully stopped a development on that property. You go to places like Indiana or Texas or Nevada, where zoning either doesn't exist or is very weak, and nobody feels like they have a say on what happens in other people's property, unless they live in a zoned neighborhood where they want to protect their zoning.

 

But they don't say, "Well I care about what happens two neighborhoods over," or "I care about a skyscraper that somebody's going to build five miles away from me." This is what happens. People start stopping those kinds of things in California, Oregon, and Washington, and states that have growth-management laws. But they don't in states that don't. They don't feel like they are entitled to say what happens on other people's property.

 

      So, in response to the more recent question, I don't think we need to worry about that. I think we need to get away from the idea that we need to have a government oversee land use, which is what Britain started doing in 1947 under the Town and Country Planning Act. And all of our growth management since then has been an imitation of that. It's taken away the development rights from people, which has made housing expensive. It's made commercial development expensive. It's made retail development expensive.

 

If we get away from that and get back to the idea that people have a right to use their land for whatever they want -- and one property right might be that I'll agree to move into this neighborhood, and I'll agree not to develop by property to high-density, as long as my neighbors also agree to do that. That's a property right too. But if we restrain ourselves to saying, "I have a right to say what somebody who lives fives miles away from me does with their property," then I think we can keep housing a lot more affordable, and boost development in this country.

 

Adam Griffin:  Thanks, everyone. I think we're at the end of our time. Guy, are you there? So, thanks, everyone. And I'll turn it over to Guy just to wrap us up. And thanks to our audience and everyone for being here, and to The Federalist Society for hosting this event, and to our wonderful speakers. Thank you all.

 

Guy DeSanctis:  Thank you all. On behalf of The Federalist Society, I want to thank our experts for the benefit of their valuable time and expertise today. And I want to thank our audience for joining and participating. We also welcome listener feedback by email at [email protected]. As always, keep an eye on our website and your emails for announcements about upcoming virtual events. Thank you all for joining us today. We are adjourned.

 

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Dean Reuter:  Thank you for listening to this episode of Teleforum, a podcast of The Federalist Society’s practice groups. For more information about The Federalist Society, the practice groups, and to become a Federalist Society member, please visit our website at fedsoc.org.