Law Commons^™

"Zoning" Matters: Rluipa And The New Normal Of Religious Discrimination, Michael Allan Wolf

UF Law Faculty Publications

The protection of religious freedom under federal law waxes and wanes, depending on two unpredictable factors: judicial activism and congressional action. A review of dozens of cases involving alleged violations of the Religious Land Use and Institutionalized Persons Act (RLUIPA), including two recent cases heard by the Supreme Court and the Fourth Circuit, reveals for the first time that many litigants and judges have ignored the congressional injunction to limit the reach of RLUIPA to two (and only two) forms of land-use regulation: zoning and landmarking. Plaintiffs have instead used RLUIPA to challenge water and sewer, septic, fire prevention, building, …

The Good, The Bad, And The Gentrified: How The Historical Misuse And Future Potential Of Zoning Laws Impact Urban Development, Megan Vangilder

University of Cincinnati Law Review

No abstract provided.

Navigating The Tension Between Preservation And Development Pressure: Cities’ Imperative To Save Independent Music Landmarks While Simultaneously Providing For Growth, Mary-Michael Robertson

Vanderbilt Journal of Entertainment & Technology Law

While cities can use their power to enact zoning ordinances and create historic preservation districts, these preservation ordinances vary widely across the United States, from allowing almost any type of development to strictly limiting any new development that does not match existing height, density, and use patterns. Within this framework, state legislatures have often limited the types of regulatory actions cities may take, as cities are merely political subdivisions of the state. Some states—known as “Dillon’s Rule” states—restrict cities from taking novel legislative approaches to existing policy issues, such as affordable housing, unless those powers are expressly provided to the …

Learning From Land Use Reforms: Housing Outcomes And Regulatory Change, Noah Kazis

Law & Economics Working Papers

This essay serves as the introduction for an edited, interdisciplinary symposium of articles studying recent land use reforms at the state and local level. These papers provide important descriptive analyses of a range of policy interventions, using quantitative and qualitative methods to provide new empirical insights into zoning reform strategies.

After situating and summarizing the collected articles, the Introduction draws out shared themes. For example, these essays demonstrate the efficacy of recent reforms, not only at facilitating housing production but at doing so in especially difficult contexts (like when producing affordable housing and redeveloping single-family neighborhoods). They point to the …

Property And Prosperity, A Demythifying Story, Xiaoqian Hu

St. John's Law Review

(Excerpt)

Economic development is fundamentally a property law story. Prominent thinkers―from Adam Smith and Jeremy Bentham, to Douglass North and Richard Posner―tell us that protection of private property rights is essential for economic growth and wealth accumulation. Clear and freely alienable property rights reduce transaction costs and allow private bargaining to produce efficient results. Property rights allow owners to internalize the costs and benefits of their own behavior, reduce production costs, and encourage innovation. Secure property rights protect owners from arbitrary confiscation by the government, foster owner expectations, and facilitate investment, trade, and the development of financial markets. The idea …

Zoning By A Thousand Cuts, Sara C. Bronin

Pepperdine Law Review

Zoning is increasingly viewed as a constraint on the nation’s housing supply, and as zoning enters its second century, there is a strong drumbeat for reform. Across the country, reformers have targeted the elimination of single-family zoning, pointing to research showing that single-family zoning drives up development costs, degrades the environment, and homogenizes communities. While allowing more multi-family options could help address these issues, reformers should not exclusively focus on the elimination of single-family zoning. Process requirements including mandatory public hearings, and substantive requirements involving lot configuration, building size, and occupancy, among other things, play a significant role in determining …

Measuring Local Policy To Advance Fair Housing And Climate Goals Through A Comprehensive Assessment Of Land Use Entitlements, Moira O'Neill, Eric Biber, Nicholas J. Marantz

Pepperdine Law Review

California’s legislature has passed several laws that intervene in local land-use regulation in order to increase desperately needed housing production—particularly affordable housing production. Some of these new laws expand local reporting requirements concerning zoning and planning laws, and the application of those laws apply to proposed housing development. This emphasis on measurement requires the state to develop a housing data strategy to support both enforcement of existing law and effective policymaking in the future. Our Comprehensive Assessment of Land Use Entitlements Study (CALES) predates, but aligns with and supports, this state-led effort to improve local reporting. For the cities that …

Variances: A Canary In The Coal Mine For Zoning Reform?, John J. Infranca, Ronnie M. Farr

Pepperdine Law Review

There is perhaps no area of land use law where practice departs more from legal doctrine than the realm of zoning variances. According to the legal doctrine, variances are to be granted sparingly, providing a “safety valve” that alleviates unique hardships encountered by a property owner. In practice, variances are granted at high rates—often around ninety percent of applications are approved—and, in some jurisdictions, in high volumes. In such cases, variances effectively serve as a rezoning, enabling jurisdictions to permit otherwise prohibited uses and allow growth and development to occur without addressing needed zoning reforms. By allowing neighbors the opportunity …

Growth ≠ Density: Zoning Deregulation And The Enduring Problem Of Sprawl, Christopher Serkin, Kelsea Best

Pepperdine Law Review

According to its many critics, zoning bears significant responsibility for the housing crisis in America and for promoting unsustainable development patterns. Reformers argue that zoning reduces the supply of new housing and therefore drives up prices in thriving communities. Zoning also increases carbon emissions by restricting density in the urban core and promoting carbon-intensive, land-consuming, automobile-dependent sprawl in single-family suburbs. A growing chorus calls for relaxing zoning limits in order to promote growth in the urban core as a response to the twin crises of housing costs and climate change. Relaxing zoning limits will almost certainly promote growth but may …

Corporate Consolidation Of Rental Housing & The Case For National Rent Stabilization, Brandon Weiss

Articles in Law Reviews & Other Academic Journals

Rental housing in the United States is increasingly owned by corporate landlords that operate under a different set of incentives, behind a level of anonymity previously unavailable, and pursuant to practices that often exacerbate an already precarious housing landscape for tenants. Marketsensitive and nuanced rent stabilization laws have reemerged at the state and local level as a viable policy option to help regulate escalating rents and prevent tenant displacement. These laws, when well drafted, can address outdated critiques of strict rent caps and can complement alternative approaches, like those of the politically popular Yes In My Backyard (YIMBY) movement, which …

Singling Out Single-Family Zoning, John Infranca

Suffolk University Law School Faculty Works

Single-family zoning is increasingly under attack in both the popular press and scholarly journals. Critics highlight how zoning districts that allow only detached, single-family homes exacerbate racial and economic segregation and perpetuate wealth disparities. Although a few local and state legislatures have eased regulations to permit denser development in existing single-family neighborhoods, such neighborhoods remain the dominant component of American zoning. The power of local governments to impose zoning derives from the police power—traditionally understood as the power to legislate in furtherance of health, safety, and the public welfare. These traditional concerns seem to provide little justification for prohibiting duplexes …

Boulder Is For People: Zoning Reform And The Fight For Affordable Housing, Emma Sargent

University of Colorado Law Review

The city of Boulder and the Colorado state legislature are both examining potential housing policies to address the growing housing affordability crisis, which reflect similar discussions in other cities and states. Zoning reform must be a central aspect of these housing policy reforms because of its impact on affordability, environmental sustainability, racial desegregation, and the economic stability of cities and states. However, passing zoning reform measures is complicated by local political opposition and the potential for unintended consequences. The best approach to pass zoning reform while ensuring that cities and states truly address housing affordability is to craft zoning reform …

Deals In The Heartland: Renewable Energy Projects, Local Resistance, And How Law Can Help, Christiana Ochoa

Articles by Maurer Faculty

Informed by original empirical research conducted in the Midwestern United States, this Article provides a rich and textured understanding of the rapidly emerging opposition to renewable energy projects. Beyond the Article’s urgent practical contributions, it also examines the importance of formalism and formality in contracts and complicates current understandings.

Rural communities in every windblown and sun-drenched region of the United States are enmeshed in legal, political, and social conflicts related to the country’s rapid transition to renewable energy. Organized local opposition has foreclosed millions of acres from renewable energy development, impeding national and state-level commitments to achieving renewable energy targets …

“Pigs In The Parlor”: The Legacy Of Racial Zoning And The Challenge Of Affirmatively Furthering Fair Housing In The South, Jade A. Craig

Mississippi College Law Review

The Fair Housing Act of 1968 includes a provision that requires that the Secretary of Housing and Urban Development (HUD) administer the policies within the Act to “affirmatively further” fair housing. Scholars have largely derived their analysis from studying large urban areas and struggles to integrate the suburbs. The literature, however, has not focused on the impact of zoning and discriminatory land use policies within and around low-income rural and small communities or specifically in the southeastern United States. Scholars have also insufficiently considered the implications of these policies on the duty to “affirmatively further” fair housing.

Racial zoning was …

Stale Real Estate Convenants, Robert C. Ellickson

William & Mary Law Review

Since the 1970s, covenants running with the land have tethered a large majority of the new housing units produced in the United States. These private restraints usually continue for generations, until a majority or supermajority of covenant beneficiaries affirmatively vote to amend or terminate them. Covenants interact with public land use controls, particularly zoning ordinances. Zoning politics tends to freeze land uses in urban America, particularly in existing neighborhoods of single-family homes. This Article investigates to what extent covenants exacerbate the zoning freeze. It provides a history of the use of private covenants and suggests how drafters, judges, and legislators …

Law School News: National Housing Advocate Named To Lead Rwu's New Real Estate Initiatives 02/08/2022, Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.

Opportunity Zones, 1031 Exchanges, And Universal Housing Vouchers, Brandon Weiss

Articles in Law Reviews & Other Academic Journals

The Tax Cuts and Jobs Act of 2017 contained former President Trump's signature economic development initiative: the Opportunity Zone program. Allowing a deferral of capital gains tax for certain qualifying investments in low-income areas, the Opportunity Zone program aims to spur economic development by steering capital into economically distressed neighborhoods. The program is the latest iteration of an overly simplistic market-based approach to community development an approach that transcends political party-based on a flawed yet enduring notion that mere proximity of capital will solve deeply entrenched issues of poverty and racial inequality. In reality, the legacy of Opportunity Zones is …

Adaptive Rezoning For Social Equity, Affordability And Resilience, Shelby D. Green

Elisabeth Haub School of Law Faculty Publications

In this Article, I will show how the legacies of the institutional barriers to housing still persist to deprive many of the predicates for economic thriving and personal flourishing and how existing zoning philosophy cannot be justified by the need to protect health and safety. Righting the inequities of the past and of the present will require dismantling some of the institutions, apparently legitimate and well-meaning, but operating devilishly to create and perpetuate hardship and exclusion. This will require laying bare the institutions to reveal their ignoble essence. We need a radical overhaul of the historic zoning regime from one …

The Euclid Proviso, Ezra Rosser

Washington Law Review

This Article argues that the Euclid Proviso, which allows regional concerns to trump local zoning when required by the general welfare, should play a larger role in zoning’s second century. Traditional zoning operates to severely limit the construction of additional housing. This locks in the advantages of homeowners but at tremendous cost, primarily in the form of unaffordable housing, to those who would like to join the community. State preemption of local zoning defies traditional categorization; it is at once both radically destabilizing and market responsive. But, given the ways in which zoning is a foundational part of the racial …

The Limits Of Equity, Michael Lewyn

Scholarly Works

"Equity" is a common buzzword in urban planning circles. However, nearly any land use decision can be justified as more equitable than the alternatives.

A Reign Of Error: Property Rights And Stare Decisis, Michael Allan Wolf

UF Law Faculty Publications

Mistakes matter in law, even the smallest ones. What would happen if a small but substantively meaningful typographical error appeared in the earliest published version of a U.S. Supreme Court opinion and remained uncorrected for several decades in versions of the decision published by the two leading commercial companies and in several online databases? And what would happen if judges, legal commentators, and practitioners wrote opinions, articles, and other legal materials that incorporated and built on that mistake? In answering these questions, this Article traces the widespread, exponential replication of an error (first appearing in 1928) in numerous subsequent cases …

Differentiating Exclusionary Tendencies, John Infranca

Suffolk University Law School Faculty Works

Despite an academic consensus that easing land use regulations to increase the supply of housing can help lower housing prices, local opposition to new development remains prevalent. Onerous zoning regulations and resistance to new housing persist not only in wealthy suburbs, but also in lower-income urban neighborhoods. In addition to making housing more expensive, such policies increase residential segregation, exacerbate urban sprawl, and have detrimental environmental effects. If increasing supply tends to reduce costs, what explains this opposition, particularly during a period of rising housing costs?

One factor is concern about the localized costs of greater density and its effect …

State Interventions In Local Zoning, Ezra Rosser

Articles in Law Reviews & Other Academic Journals

In what has been described as an "emerging consensus" and pejoratively labeled an "elite liberaltarian consensus," there is growing scholarly recognition that land use overregulation is hurting the country by limiting the supply and increasing the price of housing. By highlighting state-level interventions that succeeded in checking local zoning authority, Professor Anika Lemar's article makes a valuable contribution to the fight against excessive zoning limitations.

Zoning On Holy Ground: Developing A Coherent Factor-Based Analysis For Rluipa's Substantial Burden Provision, Andrew Willis

Chicago-Kent Law Review

No abstract provided.

Transgressive Diy (“Do It Yourself”) Spaces, Mixed Virtual/Physical Affinity Spaces, And Building Code Vigilantism, Sara Gwendolyn Ross

Articles, Book Chapters, & Popular Press

This article first situates itself within the example of Toronto as one of UNESCO’s newly minted global “Cities of Culture.” This network of “creative cities” is intended to facilitate a framework for these cities to work together in “placing creativity and cultural industries at the heart of their development plans at the local level and cooperating actively at the international level.” As one of Toronto’s culture-oriented redevelopment strategies, its “Music City” initiative is an example of how music and sound can be used in city marketing and place branding, and how these redevelopment strategies must be more effectively deployed to …

Environmental Justice In Little Village: A Case For Reforming Chicago’S Zoning Law, Charles Isaacs

Northwestern Journal of Law & Social Policy

Chicago’s Little Village community bears the heavy burden of environmental injustice and racism. The residents are mostly immigrants and people of color who live with low levels of income, limited access to healthcare, and disproportionate levels of dangerous air pollution. Before its retirement, Little Village’s Crawford coal-burning power plant was the lead source of air pollution, contributing to 41 deaths, 550 emergency room visits, and 2,800 asthma attacks per year. After the plant’s retirement, community members wanted a say on the future use of the lot, only to be closed out when a corporation, Hilco Redevelopment Partners, bought the lot …

Zoning For Families, Sara C. Bronin

Indiana Law Journal

Is a group of eight unrelated adults and three children living together and sharing meals, household expenses, and responsibilities—and holding themselves out to the world to have long-term commitments to each other—a family? Not according to most zoning codes—including that of Hartford, Connecticut, where the preceding scenario presented itself a few years ago. Zoning, which is the local regulation of land use, almost always defines family, limiting those who may live in a dwelling unit to those who satisfy the zoning code’s definition. Often times, this definition is drafted in a way that excludes many modern living arrangements and preferences. …

Zoning For Families, Sara C. Bronin

Cornell Law Faculty Publications

Is a group of eight unrelated adults and three children living together and sharing meals, household expenses, and responsibilities—and holding themselves out to the world to have long-term commitments to each other—a family? Not according to most zoning codes—including that of Hartford, Connecticut, where the preceding scenario presented itself a few years ago. Zoning, which is the local regulation of land use, almost always defines family, limiting those who may live in a dwelling unit to those who satisfy the zoning code’s definition. Often times, this definition is drafted in a way that excludes many modern living arrangements and preferences. …

The Future Of Transferable Development Rights In The Supreme Court, Linda A. Malone

Linda A. Malone

No abstract provided.

Reclaiming State Authority Over Zoning Property, Ezra Rosser

Articles in Law Reviews & Other Academic Journals

In 2019, Oregon became the first state to pass legislation that essentially bans single-family zoning.' As states across the country struggle to respond to the housing affordability crisis, Oregon's actions do not stand alone. John Infranca's recent article, The New State Zoning: Land Use Preemption Amid a Housing Crisis, may have been published before Oregon's historic vote but it is essential reading for those interested in the future of zoning.