The Aerial View of Land Use: Preempting the Locals for Improved Housing Access

The Aerial View of Land Use

Preempting the Locals for Improved Housing Access

By Shelby D. Green and Bailey Andree

Shelby D. Green is a professor of law at the Elisabeth Haub School of Law at Pace University, in White Plains, New York, the chair of the Section’s Legal Education Committee, and editor of the Probate & Property Keeping Current—Property column. Bailey Andree is a thirdyear student at Elisabeth Haub School of Law at Pace University in White Plains, New York.

According to the old saw, all politics (and its twin, zoning) is local. If one seeks office in municipal government, she must either pledge to ramp up development (new industries, more housing) or preserve neighborhoods (downzoning). Opposed platforms will animate constituents or antagonize opponents. Caught in the middle of these contests are the developers, who face interminable and hostile public hearings and administrative hoops, the under- and unemployed, and the poorly housed. The power to control land use at the local level gives local governments inordinate control over the lives and fortunes of individuals, disrupts housing and construction markets, and frustrates larger state issues and policies.

To be sure, assessing existing land uses at the local level to develop a vision for desirable and sustainable communities has advantages. Yet, the view from the ground can be limiting—it is often narrow and insular, and it misses the periphery. Fears that affordable housing development will bring undesirable changes to the neighborhood and “community character,” which ultimately will depress property values and increase crime, litter, and violence, have led to the phenomenon called NIMBYism. NIMBY (Not in My Backyard), Homeless Hub, https://bit.ly/3NwQv8b (last visited Apr. 14, 2022). The NIMBYists pressure the elected officials, who promote a land use regime that fails to embrace the needs of all in the community. Indeed, we see from the cases that many local land use ordinances are designed to exclude. In South Burlington Township NAACP v. Mt. Laurel, the New Jersey Supreme Court found an ordinance exclusionary and ruled that every county has a duty to provide for its fair share of affordable housing. 456 A.2d 390, 490 (N.J. 1983). This decision set in motion a nearly 40-year saga to strike down such ordinances as part of a broader effort to address widespread housing inadequacy in the state. New Jersey Guide to Affordable Housing, N.J. Dep’t Cmty. Affairs (Mar. 16, 2022), https://bit.ly/38ZGOzX. But why did it take 40 years to impress upon local governments their duties under the Constitution? The answer may at first be found in the predicate for local land use regulation.

Creatures of the State

Municipalities owe their existence to the state government that created them. According to Justice John F. Dillon in Clinton v. Cedar Rapids and the Missouri River Railroad:

[M]unicipalities owe their origins to and derive their powers and rights wholly from, the [state] legislature. It breathes into them the breath of life, without which they cannot exist. As it creates, so may it destroy. If it may destroy, it may abridge and control. . . .They are, so to phrase it, the mere tenants at will of the legislature.

24 Iowa 455 (1868). This “Dillon’s Rule” had been modified over subsequent years to give local governments varying degrees of discretionary power, called home rule, over specific matters. Sometimes home rule is embodied in state constitutions, such as in the New Jersey Constitution: “the powers of counties and such municipal corporations shall include not only that granted in express terms, but also those of necessary or fair implication, or incident to the powers expressly conferred, or essential thereto, and not inconsistent with or prohibited by this Constitution.” N.J. Const. art. 4, § 7. Under home rule, local governments are endowed with “police powers” to enact and enforce laws to protect the public safety, health, and general welfare. But home rule is curtailed when a local ordinance conflicts with state rules (or the policies of the ruling party). Although states historically have preempted local governments on matters of taxation and education, in some recent cases, states have exerted control over matters that concern issues of housing access. For example, in Austin, Texas, state law preempted a local ordinance that barred landlords from refusing to accept housing choice vouchers. In California, state legislation precludes cities from enacting restrictions in Accessory Dwelling Unit development. These two examples show that even with home rule, municipalities can take few actions to regulate land use that are not potentially subject to state preemption. A growing number of states are seeing the need to intervene in community development and housing. Much of this movement can be attributed to an examination of the harms wrought by Euclidean zoning and seeing its incompatibility with notions of social justice and the imperatives of climate change.

Zoning Upheld and Transmogrified

At first, zoning was openly and explicitly racial as cities enacted ordinances that prevented Black people from living in white neighborhoods. The Supreme Court in the 1917 case Buchanan v. Warley struck down one such ordinance. 245 U.S. 60 (1917). Then, in 1926, in Village of Euclid v. Ambler Realty Co., in an ostensibly race-neutral context, the Supreme Court gave its imprimatur to zoning laws that purported to separate incompatible uses, concluding that local governments held inherent police powers to protect the health, safety, and general welfare of citizens. 272 U.S. 365 (1926). The Court highlighted the importance of land use in controlling nuisances, describing apartment buildings (and presumably their occupants) as parasites to keep at bay. From that ruling, municipalities proceeded to enact all manner of land use limitations, specifying the size of lots and their siting, height restrictions, infrastructure requirements, street width requirements, and more. Euclidean zoning became almost fanatical in its protection of the single-family zone, sometimes unwittingly, other times purposefully, operating to exclude those families lacking the means to buy into these zones and thereby excluding by race. In Huntington Branch, NAACP v. Town of Huntington, 844 F.2d 926, 928 (2d Cir. 1988), the court noted that sometimes “[facially neutral] rules bear no relation to discrimination upon passage, but develop into powerful discriminatory mechanisms when applied.” The court explained that “the discriminatory effect of a rule arises in two contexts: adverse impact on a particular minority group and harm to the community generally by the perpetuation of segregation.” Id. at 937. See also Mhany Mgmt., Inc. v. County of Nassau, 819 F.3d 581, 588–90 (2d Cir. 2016) (expressing concerns about community “flavor” exposed as intent to exclude based on race).

Zoning Harms

Few would argue that keeping factories out of residential neighborhoods is not a good thing (although this view did not seem to apply to communities of color, as recent research reveals that the overwhelming majority of hazardous industrial facilities, sewage treatment, and landfill sites are situated within close proximity to these communities). Still, many of the land use tools have been exposed as not serving the cause of health, safety, or general morals for all citizens. See Juliana Maantay, Jayajit Chakraborty & Jean D. Brender, Proximity to Environmental Hazards: Environmental Justice and Adverse Health Outcomes, Env’t Protection Agency (Mar. 19, 2010), https://bit. ly/3thZh1t. Indeed, we are now questioning whether single-family zoning is necessary for community. We do know that such rigid zoning causes harm by driving up housing costs and retarding housing supply. See Robert C. Ellickson, Zoning and the Cost of Housing: Evidence from Silicon Valley, Greater New Haven, and Greater Austin (Jan. 19, 2020), https://ssrn.com/abstract=3472145 [hereinafter Ellickson]. These higher housing costs pose a disproportionate effect on people who are persistently housing-cost-burdened. Over 36 million households are housing-cost-burdened, or paying more than 30 percent of income on shelter, and 35 percent of African American households have “extremely low” incomes compared to 22 percent of white households. Tables, U.S. Census, https://bit.ly/3H0d2aW (last visited Mar. 28, 2022). Large lots, limited to one detached structure, precludes multi-use buildings, thereby denying opportunities for affordable housing to many. A required minimum house or lot size will rule out tiny homes, accessory dwelling units, mobile homes, and infill development. Professor Ellickson reports that from 2011 to 2017, half of all major metropolitan areas declined in affordable units by over 10 percent. Ellickson, supra. This disparity is amplified by rising housing prices—from 2000 to 2019, prices appreciated faster at the lower end of the market, at 126.6 percent, than the higher end of the market, at 86.4 percent. The unyielding character of Euclidean zoning leaves planning decisions blind to and largely out of sync with sustainability concerns—they may not allow the best siting of solar panels or accommodate green infrastructure, and they require more travel by car to reach basic services.

Deploying the Euclid Proviso to Rein in Errant Land Use Controls

Although local control is an important tool to respond to concerns confined to a specific area, state-level control of certain aspects of local land use provides a valuable tool to improve the state of housing. The aerial view, by the state governments, can reveal disruptions in the market and enable comprehensive solutions. Access to housing affects much more than this or that specific neighborhood. It carries over into intrastate and interstate relations. The Euclid Proviso is an important caveat to locallevel land use control. Ezra Rosser, The Euclid Proviso, 96 Wash. L. Rev. 811 (2021). The proviso limits local land use authority if zoning is counter to larger public interests, allowing local action to be rejected if it does not operate for the good of the community. Scholars argue that the Euclid Proviso provides the authority needed for states to circumvent local zoning practices, particularly in the name of housing affordability and accessibility. Even if the bounds of “home rule” are not clear, state legislatures can cite the proviso to strike down the harmful local land use practices that pose unfair burdens on housing accessibility, thereby eliminating some of the political barriers imposed by locallevel opposition and NIMBYism. State control over housing access may be the most efficient way around the camouflage of facially neutral but racially animated zoning laws.

Opening the Avenues to Housing

Alas, the Euclid Proviso is little used, as state oversight of zoning remains largely hands-off. Only three states have enacted comprehensive statewide housing requirements, and only a handful more have enacted state mandates for localities to reduce barriers to affordable housing development; none of these requires affordable housing in the first place. Oregon’s statewide initiatives have provided the first comprehensive statewide action to control certain aspects of local land use. First, the state mandates a certain level of multifamily housing types to be permitted in single-family zones. Or. Rev. Stat. §§ 197.175, 197.290 (2021). Under that legislation, cities with a population over 20,000 must allow for duplex, triplex, quadruplexes, cottage housing, and townhouses in all single-family zones. It also requires all cities between 10,000 and 25,000 residents to allow duplexes in single-family zones. The legislation establishes mandatory density requirements for large cities, another mechanism to encourage multifamily development. Additionally, the act requires Regional Housing Needs Assessments and imposes financial penalties on municipalities that fail to meet state affordable and missing middle housing goals.

Last year, California adopted a slew of laws aimed at making housing more accessible. Governor Newsom’s California Comeback Plan is focused on loosening development restrictions and streamlining the missing middle development processes, while previous efforts have focused on Accessory Dwelling Unit development specifically. Under California Code § 65852.2, poison pills in Accessory Dwelling Unit codes are prohibited. Rev. Cal. Gov. Code § 65852.2. This means that municipalities must allow easy ADU development, which will add a substantial amount of affordable housing to the state. This opens the way to affordable housing by removing the power to enact barriers from actors at the local level altogether. California Code § 65852.21 simplifies the approval process for two-unit development, classifying it as ministerial in nature, so long as the development meets certain predetermined criteria. Id. § 65852.21. This effectively eliminates single-family zones. California Code § 65913.5 also allows local governments to upzone parcels for missing middle development. Id. § 65913.5. The California Comeback Plan does more than just loosen the constraints of Euclidean zoning; importantly, it authorizes $1.75 billion in funding for 84,000 planned housing units, paving the way for other states to do the same. California Code § 47605 permits local governments to establish their own affordable housing requirements for developments while also affirming local power to enact inclusionary housing ordinances. Id. § 47605.

Maine has also made significant departures from the straitjacket of the single-family zoning paradigm. Under Maine Code § 3015, accessory dwelling units must be permitted as-of-right in all single-family zones, but municipalities are allowed to enact their own ordinances to achieve this directive. Me. Stat. tit. 30A, § 3025. Utah has enacted similar legislation, barring local governments from prohibiting accessory dwelling units that fit within the footprint of the primary dwelling unit and comply with applicable building, health, and fire codes. Utah Code Ann. § 10-8-85.4.

The longest-running example of state control over affordable housing is Massachusetts’s Chapter 40B. Passed in 1969, the code was dedicated to encouraging affordable housing development in the state. Mass. Gen. Laws ch. 40B. It enables the Zoning Board of Appeals to approve developments with long-term affordability restrictions, allows eligible developments to receive a permit even if they require local zoning waivers, permits rejection without appeal if a development does not contain at least 10 percent affordable units, and streamlines the permitting process. Since its enactment, this statute has led to the production of about 70,000 affordable units.

In 2004, the Massachusetts legislature enacted Chapter 40R as a follow-up to 40B. Mass. Gen. Laws ch. 40R. Through financial incentives, it encourages municipalities to create mixed-use smart-growth districts, develop a high percentage of affordable units, locate units near transit stations, and create affordable overlay districts. Newly-created affordable overlay districts must require 20 percent affordable units and allow mixed-use development near the zone. The focus is to increase the amount of dense housing zones to provide housing options for low- and moderate-income households. It also requires affordable units in most private developments. A town adopting this measure is eligible to receive up to $600,000 from the state plus $3,000 for each new home created. Since its passing, Chapter 40R has spurred the development of 3,037 new affordable units and is currently facilitating production of 13,715.

Like Massachusetts, other states approach the issue of improving housing opportunities through a delegation of authority to local actors to enact ordinances toward that end, but with specific directives for achieving it. For example, in South Carolina, local governments have the power to enact inclusionary housing ordinances, but the state requires that any such ordinances include incentives for affordable housing development. S.C. Code Ann. § 6-7-5 (2015). Similarly, in Virginia, municipalities have authority to waive fees associated with affordable housing development. Va. Code Ann. § 15.2-2305.1(B)(2); see generally id. § 15.2-2305.1 (authorizing affordable housing dwelling unit ordinances).

Maine now requires municipalities to comply with statewide housing production goals that increase the availability and affordability of all types of housing in all parts of the state. 2021 Me. Laws 672. The recent amendments to Ch. 30-A also specify densities for affordable housing of up to two and a half times the base density otherwise permitted; require municipalities to allow structures with up to four dwelling units per lot, depending on the area; and allow accessory dwelling units. Id.

Another creative mechanism of statewide control is Connecticut’s reversal of the presumption of validity for challenges to affordable housing development. Traditionally, the burden of persuasion lies on the party challenging a local board’s denial. Connecticut’s updated Affordable Housing Land Use Appeals Procedure changes this. Conn. Gen. Stat. § 8-30(g) (2021). Local boards now must show why they chose to deny a proposal for affordable housing development. This procedural tool will go far to address zoning decisions that disproportionately impact impoverished communities.

A Clear-Eyed Vantage

The techniques described are just a few examples of the efficacy of state-level land use control techniques concerning housing. States have the power of preemption on their side and can use that power to require localities to take action towards affordable housing development. A large-scale statewide initiative provides the aerial perspective necessary to solve such broad and persistent issues of housing insecurity. The housing landscape can be assessed more keenly from a higher vantage.

Published in Probate & Property, Volume 36, No 5 © 2022 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

Probate & Property September/October 2022