Constitutional Property Taking: Exclusionary Zoning’s Costs to Owners and Society

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Hubwonk: Constitutional Property Taking: Exclusionary Zoning’s Costs To Owners and Society

[00:00:00] Joe Selvaggi: This is Hubwonk. I’m Joe Selvaggi. Welcome to Hubwonk, a podcast of Pioneer Institute, a think tank in Boston. Exclusionary zoning, the practice of limiting the types and quantity of housing property owners can construct, has ignited debates across political and legal arenas. The consensus among economists and land use scholars suggests that it exacerbates housing shortages, impacts marginalized groups disproportionately, and hinders national economic growth despite its significant implications for property rights, Exclusionary zoning has largely escaped constitutional scrutiny owing to the 1926 Supreme Court ruling in Euclid v. Ambler Realty. This tension between property owner rights and municipality authority to regulate new housing is now front and center in the pursuit of affordable housing in desirable areas. Could the constitutional shield protecting exclusionary zoning be challenged? And what are the potential costs and benefits if the Supreme Court were to classify the practice as a taking?

[00:01:06] My guest today is George Mason Law Professor Ilya Somin, co-author of a recent paper entitled The Constitutional Case Against Exclusionary Zoning. In the paper, Professor Somin draws from both originalist and progressive constitutional theories to assert that exclusionary zoning could be constitutionally interpreted as an infringement on rights Safeguarded by the Takings Clause and, where practiced, would necessitate compensation for affected property owners. We’ll explore strategies for overturning or restricting EUCLID and discuss the relevant landscape of constitutional precedence, individual property rights, the likely impact on communities, and benefits to future homeowners within a reimagined constitutional framework. When I return, I’ll be joined by legal scholar, George Mason law professor, Ilya Somin. Okay, we are back. This is Hubwonk. I’m Joe Selvaggi, and I’m now pleased to be joined by constitutional scholar and George Mason University law professor, Ilya Somin. Welcome back to Hubwonk, Ilya.

[00:02:12] Thank you so much for having me. Well, I always love having you as my guest. I think, when you’re on, I get more, listener feedback than from any other guest. some friendly, some, let’s say, challenging, feedback. and I guess, I think our conversation today will be no different. We’re going to be talking about the idea of exclusionary zoning, in particular, the idea of the constitutionality of exclusionary zoning, the issue you tackle in your new paper that you wrote with, Wisconsin law professor Joshua Braver.

[00:02:39] It’s entitled, The Constitutional Case Against Exclusionary Zoning. So, let’s start, as our listeners know, I like to start at the beginning and define what you mean by exclusionary zoning.

[00:02:51] Ilya Somin: Exclusionary zoning can have a number of different meanings, but the one we use in our article, is that it’s a set of policies, which restricts the amount and type of housing that you can build on your property.

[00:03:00] The most common and most significant type of exclusionary zoning restriction is rules that say that, in various areas, you can only build single family housing as opposed to duplexes or quads or apartment buildings and the like. But there are other exclusionary zoning restrictions as well, such as minimum lot sizes, parking mandates and some others.

[00:03:22] Joe Selvaggi: Well, as listeners of this podcast will know, I believe that zoning restrictions are the single biggest reason that housing costs are so incredibly high here in the greater Boston area, but also around the country. You make some claims early in your paper about, the cost of zoning, of restrictive zoning to the country and our GDP. Just give us some rough, estimates of what you estimate the cost of these restrictions and zonings, are for us.

[00:03:45] Ilya Somin: So, economists have come up with different estimates of how big the costs are, but almost all plausible estimates are extremely large. So, for instance, 1 recent study says that just abolishing zoning in a few of the largest metropolitan areas might boost GDP by 7%.

[00:04:03] Others come up with comparable or even larger numbers. The bottom line is that exclusionary zoning Prevent hundreds of thousands, probably millions of people from moving to places where they would have more job opportunities and in many cases also educational opportunities that obviously harms those people who get excluded, but it also harms all the rest of us.

[00:04:24] Because if those people are less productive, then. we don’t have as productive and wealthy an economy as we otherwise would have. We also have less innovation than we otherwise would have because when people can move to a place where they’re more productive, they’re more likely to innovate when people move their kids to places with better educational systems, it’s more likely that their kids will grow up to be successful professionals, including in some cases, doctors, scientific researchers, and the like.

[00:04:51] So, especially when you accumulate this over time, Um, we end up with a vastly poorer society than we would have otherwise, as well as having cut off millions of people, most of them relatively poor and minorities, from, job opportunities and educational opportunities that could enable them to get ahead.

[00:05:10] Joe Selvaggi: Again, those listeners who have heard you on the podcast before are familiar with your very persuasive argument for voting with our feet, meaning we, that’s the most powerful thing we can do, to empower ourselves and our, and our world is be able to live where we want to live and do what we want to do.

[00:05:24] So I won’t go down there because we’ve covered that well, but,I’ll remind our listeners about the very familiar theme. you, talk about in your paper, you do a lot of, Historical accounts, of course, being a legal scholar, but you’ll also talk about the fact that zoning itself, exclusionary zoning itself, was originally intended to exclude disfavored groups from living near us.

[00:05:45] Describe your account of the origins of exclusionary zoning.

[00:05:49] Ilya Somin: So exclusionary zoning had several origins. 1 was trying to control what we might today call externalities, sort of situations where what’s done on 1 property might have a negative effect on neighboring properties. But another big factor was relatively affluent white people trying to exclude minorities, particularly blacks, in some cases, new immigrants, Chinese, and others, and also richer people trying to exclude poor people. In 1917, in a case called Buchanan versus Worley, the Supreme Court ruled that it was unconstitutional for a state or local government to engage in explicitly racial exclusionary zoning.

[00:06:29] That is, they struck down where A city had said that,blacks were forbidden to move into majority white neighborhoods. However, many places that wanted to engage in racial exclusion, they said, okay, we’re not going to explicitly, openly say blacks aren’t allowed to move into white neighborhoods.

[00:06:45] We’re just going to say that. only single-family housing can be built, or the lot size must be of a certain size, and the like. And while that doesn’t, explicitly discriminate on the basis of race, they knew that in that era, especially blacks were on average much poorer than whites. They couldn’t afford single-family housing, so if nothing else could be built, blacks would be excluded.

[00:07:05] And similarly, if wealthier people wanted to exclude the poor, the working class, and the like, you could use similar means. Of course, the white poor also generally could not afford single-family housing or afford to buy large lots and the like. So, and people openly talked about at this time, the desirability of excluding the poor and racial minorities.

[00:07:26] They didn’t make a secret of their motives. Unfortunately, in the 1926 case of Euclid v. Ambler Realty, The Supreme Court upheld this kind of zoning against constitutional challenge, even though the district judge in the case, the lower court judge, he explicitly warned that the purpose of this zoning was generally to exclude people based on economic class.

[00:07:48] And he also warned that it would lead to racial exclusion, which it very clearly and obviously did. He was prescient in his warning, but the Supreme Court in a 6 3 decision didn’t listen, or worse, some of the majority justices who originally were planning to strike down the law. It seems evident that a late arriving amicus brief by a group of planners, they explicitly emphasized and pointed out that, hey, if you strike this down, that means wealthy neighborhoods wouldn’t be able to exclude poor people.

[00:08:19] And there’s some evidence that some of the Supreme Court’s conservative justices. who otherwise would likely have voted to strike down the law that this gave them pause and what might have been a 5 decision, striking down the law became a 6 3 decision the other way.

[00:08:34] Joe Selvaggi: So here we are, we’ve got this tension between classic American values of property rights versus this sort of, inclination towards exclusion, excluding people who we don’t like.

[00:08:44] Ilya Somin: Yeah, so we talked a moment ago about the economic and racial effects of exclusionary zoning, but it’s also worth thinking about this just as a property rights issue. That if you think about, What is the single most widespread policy that has a big effect in limiting what property owners can do with their own land?

[00:09:00] By far, it’s exclusionary zoning. In addition to keeping millions of people from moving to opportunity, it also keeps hundreds of thousands of property owners From being able to build what they want on their property to use it or lease it out as they see fit. And instead, they’re confined in many cases to building 1 type of housing, such as single-family housing, or, they can’t subdivide their lot.

[00:09:23] It has to remain a particular size. If they do build housing, they must build a certain number of parking spaces, which greatly adds to the cost and so on. So, even if you don’t care about the economic effects and you don’t care about the racial history or the history of excluding poor people. If you’re a pure property rights guy, say all I care about is the people able to do what they want with their property.

[00:09:44] Still, this issue should be a very high priority for you, because it has an enormous impact in terms of limiting huge numbers of property owners’ ability to use their land as they see fit. it is, I think, the single biggest property rights issue in American society today.

[00:09:59] Joe Selvaggi: Hence the impetus for your paper.

[00:10:02] What I liked about your paper is you co-wrote it with someone who doesn’t share your view of the Constitution. I don’t want to mischaracterize the two views if they’re, I’m sure there are more than two views, but yours is more of a, What I would call a, what would be the right word, Ilya?

[00:10:18] Ilya Somin: So the right word would be originalist, or at least I think there should be a presumption in favor of following the original meaning.

[00:10:24] Also, politically, I’m libertarian. On the other hand, my co-author, Josh Braver of the University of Wisconsin, he’s a progressive politically, and in terms of constitutional interpretation, he’s a living constitutionalist. in the article, we describe how to end exclusionary zoning. is the right thing to do from both an originalist point of view and also a living constitutionalist point of view.

[00:10:47] And obviously from a policy or moral point of view, it’s also the right thing to do from both a libertarian perspective, which emphasizes property rights, and a progressive perspective, which emphasizes empowering the poor and the disadvantaged and breaking down government policies that, tend to suppress them and confine them in poverty.

[00:11:07] Joe Selvaggi: I’d like to focus on first your argument, and then we can complement that with Professor Braver’s argument if it’s fair to ask you to characterize his point of view. you do a lot to talk about just fundamentals. You go all the way back to Locke, or perhaps even before, to talk about the 18th century, or a founding father’s view of property, that it was the third right, life, liberty, and property.

[00:11:29] Did our founders imagine the idea that our property rights would be constrained by exclusionary zoning, or is this a relatively new phenomenon?

[00:11:37] Ilya Somin: So, exclusionary zoning is a policy that began in the late 19th and early 20th century. So, obviously, the founding fathers didn’t talk about it. However, what they did talk about, and what they did understand is that the right to property, as they saw it, included the right to use property, not just the right to own it, or to exclude people from coming on, but also the right to use it as you see fit.

[00:12:01] William Blackstone, in his commentaries on the law of England, Explicitly said that the right to use is part of the property rights of all that all Englishmen enjoy. And Blackstone was the weeding legal treatise, writer of that era. Who have we influenced the American founding fathers? James Madison, one of the weeding framers of the constitution and also the leading framer of the Bill of Rights, and in particular, the Takings Clause of the 5th Amendment. When he presented the Bill of Rights to Congress, he explicitly said that the right to use property was 1 of the rights that he was trying to protect. And so, and building housing, both in the founding era, like, today, is, a standard use of property.

[00:12:41] So I think the idea that building the type of housing you want, is a protected property, right? That idea would have been well familiar, to the founding fathers. It’s a core element of the right to use property, which in turn, was a core element of the right to property, more generally, and the Takings Clause of the 5th Amendment, which Madison drafted.

[00:13:01] That it’s in the Constitution largely because he wanted it to be in there. it says that if the government takes private property, then they must pay just compensation. And one type of, taking is when the government takes away your right to use your property as you see fit. and I think, the founding fathers well understood, that was part of the property right protected by the takings clause.

[00:13:25] some originalists say. That the original meaning that matters is not that of 1791 when the Bill of Rights was first ratified, but rather that of 1868, when the 14th Amendment was ratified and made the Bill of Rights, including the Takings Clause of the 5th Amendment, applicable against the states for the first time.

[00:13:45] Before then, most people, including the Supreme Court, held that the Bill of Rights only constrained the federal government. And as of 1868, as we discuss in our paper, there is even more evidence that the right to use was considered a central element of the property rights protected by the Takings Clause and that if the government restricted your right to use, you would then that would be a taking that they had to pay compensation for.

[00:14:10] There are some limitations on that we can talk about, but those limitations, would not protect a practice like exclusionary zoning.

[00:14:17] Joe Selvaggi: I’m glad you connect the dots between, the 5th Amendment, which is our founding, and our 14th Amendment, which incorporated those rights, or compelled or constrained, the states as well to, respect.

[00:14:26] those civil rights, including the

[00:14:27] Ilya Somin: 5th Amendment. I should perhaps emphasize that exclusionary zoning is almost always enacted by state or local governments. So, what makes the 5th Amendment or the Bill of Rights generally relevant to state and local governments is the 14th Amendment. Previous to that, the takings clause was not used very much because the federal government rarely did things that could be considered takings.

[00:14:50] Joe Selvaggi: And again, to connect the dots, that those rights also apply to states, or those limits apply to states, is important because zoning, exclusionary zoning, is almost always the providence of the state or local government. So, let’s talk about property rights again, whether they be, whoever’s constrained.

[00:15:05] You talked, you mentioned it before, but I just want to say no one can take your property, of course, or if the government does take your property, it needs to compensate you. The Fifth Amendment, Takings Clause. but also no one could invade or limit your use. Let’s break that down as well. I was interested in it because your paper covers this idea of invading your property, and I’m thinking of armed men, but you describe things like flooding, but also, constraining use is essentially a form of taking.

[00:15:30] I think, for our listeners who I’m sure are not familiar with the idea of an invasion of property, what, where are instances of that?

[00:15:38] Ilya Somin: Sure, so in the lingo of property law, an invasion or a physical occupation is simply when the government physically takes over your land. Like, when, for instance, they use eminent domain to condemn it, and then they say, we’re going to build a road over your land, or alternatively, in some cases, they might authorize private parties to go on your land.

[00:15:59] And then, that’s also a physical occupation. The Supreme Court has ruled that. Any physical occupation, even a temporary one, is a so-called per se taking. That is, it automatically is a taking. It’s not subject to a complicated balancing test or anything like that. On the other hand, the Supreme Court has not been willing to rule that restrictions on use qualify as per se takings, except in a few unusual circumstances.

[00:16:24] But if you’re an originalist, and you go back to the original meaning of either 1791 or 1812, It’s clear that the right to use was also seen as a fundamental element of the right to property protected by the Takings Clause. So if the government restricts your right to use, even if they don’t in the process physically invade your property, even if they just simply say, well, if you build a structure that we don’t like on your property, we’re going to punish you or fine you or whatnot, then, that would still be a taking, at least from an originalist point of view.

[00:16:56] Elsewhere in our article, we suggest that this is also the right result, from a living constitution point of view as well, at least when it comes to exclusionary zoning, maybe not with respect to some other kinds of restrictions on use.

[00:17:08] Joe Selvaggi: So, so when the government says you, you can build this, but not build that’s a form of takings, at least by your reading, and one that’s perhaps intention with the, your, the case you made.

[00:17:19] The case you cited earlier that said, well, it might be okay for the government to do that. Let’s talk about right now where, you could imagine even with your interpretation, instances where the state could, limit, your use. Let’s say it’s for, safety reasons or something of that nature where you would respect the prerogative of government.

[00:17:39] Ilya Somin: If under the original meaning and also today, there were some kinds of government regulations that fall within the so-called police power exception, where even if they do limit use, or even sometimes if they work a physical invasion of property, they would not be considered takings because they fall within the police power.

[00:17:57] What is the scope of this exception? That is a very nebulous issue that it’s not easy to get your mind around. greater thinkers than I have failed to come up with a complete and thorough theory of this, but the basic idea is that this is the police power exception applied to situations where a use of property it poses some significant threat to health or safety.

[00:18:20] So, for instance, your use of property results in the spread of deadly diseases, or it causes a risk of flooding or subsidence of property or something like that. And the exact boundaries of this are arguable. What I think is reasonably clear, however, is that most exclusionary zoning can’t be defended on the base of the police power exception.

[00:18:41] It is not a threat to health or safety. Certainly not a significant one. merely to build, say, multifamily housing as opposed to single-family housing or to build a high-rise building as opposed to a lower-rise building or to have fewer parking space spots as opposed to more, or to have a smaller way as opposed to a bigger one.

[00:19:00 Unless you just believe that almost all restrictions on property rights fall within the police power exception, then, most exclusionary zoning would not fall within it either. In fact, as we discuss in our article, the Supreme Court has ruled that there are takings in cases where there are greater threats to health or safety than whatever threat exclusionary zoning protects us against it.

[00:19:24] Joe Selvaggi: So again, we’re focusing on exclusionary zoning, not the sort of, edge cases where there’s clear danger.

[00:19:30] Ilya Somin: As in many legal rules, there are some boundary line cases, which can be difficult. Most exclusionary zoning cases, I think, are not difficult in this way, and it’s very hard to argue that these cases fall within the police power exception.

[00:19:43] Unless you just want to say almost everything is in the police power exception and that the exception swallows the rule.

[00:19:49] Joe Selvaggi: So I want to address what I’m sure our listeners are thinking, but you address it in your paper, both your argument and Professor Braver make the argument that I’ll just say it this way.

[00:19:57] There seems to be, in my mind, an unwritten but widely accepted view of property that members of the community recognize that, they want to preserve the history and character of their community, and that sort of confers some sort of rights to them, just collectively say, this is what we want built on, quote-unquote, our property.

[00:20:14] And to their point, they choose to buy a particular house in a particular community for those community characteristics. They don’t want those to change. That’s why they bought it. and, effectively their neighbors, and they agree that this is the town they want and that they think their prerogatives as majority in a town should prevail when deciding what can be built in quote-unquote their town.

[00:20:33] How does your paper address that?

[00:20:37] Ilya Somin: I’ve written about this a little bit more fully elsewhere. I would say a couple of things about this. 1 is that if you take that position seriously, you can destroy virtually any constitutional right. You can say, well, the members of the community agree that certain kinds of speech, left-wing speech, or right-wing speech will not be permitted in our community because we all agree we want to preserve its historic character as a left-wing community or right-wing community.

[00:20:58] We agree. We only like certain religions and not others. We’re traditionally a Christian community or a Muslim one. we exclude the other religions and I can go on, but you get the idea. Moreover, it is not in fact the case that all the members of the community agree. rather some, perhaps a majority, want to do this, but others don’t.

[00:21:15] If everybody truly agreed, you probably wouldn’t need the exclusionary zoning to begin with. the exclusionary zoning exists precisely because there are some significant number of people who otherwise would engage in other land uses. Finally, it’s important to recognize that many of the victims here are not members of the community, but rather people who might potentially move in, who are excluded and priced out because housing can’t be built in response to demand that they might make.

[00:21:41] The fact that you live in a particular town does not give you a right to restrict the mobility of other people who might come in from the outside. One of the fundamental rights of free people in the United States and elsewhere is the right to move around freely and to choose where you want to live.

[00:21:58] And, people cannot essentially hang up a sign saying that, if you don’t already live here, you’re not allowed to move in because we’re not going to let anyone build housing that’s affordable. So, whether you view it from the point of view of protecting the rights of a minority within the community, or the point of view of protecting people who are forcibly excluded, either way, this kind of right is important.

[00:22:21] It’s not enshrined in a constitution, it’s unjust and cruel, and it causes great harm. I would add, finally, that many people who already live in these communities, actually stand to benefit from, ending exclusionary zoning even if they themselves have no desire to move and already own homes in the area.

[00:22:39] I give a simple example, I’m a homeowner in an area that until recently had very severe exclusionary zoning, but I have kids, and I would like my kids someday to be able to have affordable housing and live nearby me. the people who created the exclusionary zoning here had taken away that option from me and my kids.

[00:22:56] And, that’s a bad thing for me. In addition, the extra economic growth and innovation that ending Exclusionary zoning would cause that would benefit not just the people who get to move, but also people who never move anywhere, but simply benefit from living in a wealthier, more productive, and more innovative society.

[00:23:15] If, for instance, people can move in and bring their children to places with better educational opportunities. One of them could grow up to cure the disease. that otherwise might kill you or me, and obviously, only a small fraction of them will do that. But if you’re talking about many millions of people previously shut out, now being able to move where they want, if even a small percentage of them make great innovations as a result, that, still, has a very large cumulative effect, including in some cases, literally a life saving one.

[00:23:45] Joe Selvaggi: Your paper also cites, I think, some well-meaning remedies for these kinds of limits on housing. You mentioned inclusionary housing as a patch for exclusionary zoning troubles. I think the argument being, you sure you can build You know, a very, high-end property here, but in, as an offset, you must build, let’s say, a more dense, population property elsewhere, or one with a smaller footprint, or something that’s bound to be less expensive.

[00:24:15] Ilya Somin: So, what inclusionary zoning usually says is something like, if you build a new housing project, In an area, you have to set aside some of the units for so-called affordable housing. The problem with this is that it increases the costs of new development and makes developers less willing to build than they would be otherwise.

[00:24:32] So, the studies on this suggest that. Inclusionary zoning rules do very little to actually increase the amount of housing or to reduce its cost. On the other hand, simply letting people build the housing that they want with a few health and safety limits, does reduce costs. And there’s lots of evidence that in places like Houston, where people to a large extent can do that, that results in more housing being built, lower housing costs, and the like.

[00:24:59] You see a similar story in other countries like in the Tokyo area in Japan, where, they have much more liberal rules about what you can build. And as a result, Tokyo has not experienced the kind of massive, price increases in housing, despite the fact that many Japanese from other parts of the country have moved there.

[00:25:17] So, letting people build what they want, with few restrictions that do reduce housing costs. On the other hand, inclusionary zoning mandates have little or no beneficial effect. And by the way, even if what some of the people do is just build high-end luxury housing, that still benefits low-income people as well.

[00:25:35] If high-end housing is built and wealthier people move in there, those wealthier people are not competing for smaller houses or less elaborate ones. Those other types of housing and then left free for other people. It’s similar to saying that, like, let’s imagine you, you pass the law saying we forbid the sale of luxury cars, right?

[00:25:57] Then you could say, well, only rich people would be harmed by that, but of course, rich people would still buy cars of some kind. So, if there are no luxury cars anymore, they would have to buy Okay. Sort of ordinary cars, that the rest of us, the Hoi Polloi drive. And so the price of cars for the Hoi Polloi, people like us, would increase, even though the only thing that’s actually banned is the luxury cars.

[00:26:18] So, by allowing luxury cars to be built, obviously we benefit not only the rich people who buy them but the rest of us. And similarly, By allowing people to build new high-end housing, we also benefit, others, but in practice, what exclusionary zoning usually does is, it does not ban the building of luxury housing for the rich, it bans the building of multifamily housing, which is disproportionately important to the lower middle class, and the working class.

[00:26:44] Joe Selvaggi: I’m glad you made these points. We give our listeners free economics lessons all the time on this show. As you say, more houses mean lower price houses, a full stop, that’s the way supply and demand work. But taking that to its logical conclusion, I’m a homeowner, you’re advocating for, let’s say, less exclusionary zoning, therefore more housing, therefore the price of housing, all housing, including mine, goes down.

[00:27:07] That’s a negative externality. If I live in a leafy suburb with traffic and uncrowded schools and, somebody wants to build a large, dense, project in my town, it might increase traffic noise, trash, and even crime. The value of my house might go down. How do you account for this? How are people supposed to buy into that?

[00:27:23] Ilya Somin: So, I would say a couple of things. One is the enormous new productivity and growth that is created by allowing more housing to be built in high-demand areas. Some of that wealth can be used to build new infrastructure, hire more police if more police are needed, spend more money on schools and so forth, and places which, have little, relatively little, or no zoning.

[00:27:47] Like Houston, they have not experienced a massive crime wave or destruction of infrastructure or anything like that. they can simply build new infrastructure as necessary and having more people creates wealth that enables that to be done. It is true, nonetheless, that in some cases, real estate prices might fall, and I don’t think that people can be guaranteed, that the value of your property will never fall if you have zoning liberalization.

[00:28:13] And I don’t think people have a right to a particular level of price for their, for their house or other property that they might own, those things are legitimately subject to market fluctuations. However, while ending exclusionary zoning reduces the price of housing, it doesn’t necessarily reduce the price of land.

[00:28:34] Remember that the whole reason why exclusionary zoning rules exist in the 1st place is that for some of the properties in the areas to which these rules apply if there were no such restrictions, the most valuable use of the land would be building, say, multifamily housing rather than single-family housing.

[00:28:54] So if you own a house in this area, say a single-family house, but the most valuable use in the absence of zoning would be building a multi-family house, then abolishing exclusionary zoning might actually raise the market value of your lot because before the only people for whom it made sense to buy the lot were other people who might want a single-family house, but now your house could potentially be bought by a developer who owns it would knock it down and build a duplex or a high rise or something like that. So, for some people who currently live in these communities, the market value of their land would actually go up. I don’t promise that will be true for everybody, but it could be true for a good many people because the whole logic of exclusionary zoning is precisely to ban what would otherwise be the most valuable use.

[00:29:45] If it was not the most valuable use, then you would not need exclusionary zoning because few, if any people would want to do this anyway.

[00:29:52] Joe Selvaggi: Fair enough. That’s a good response. Now, you acknowledge in your paper, I’m sorry we’re pressed for time, so I want to get some key final questions I had for you, but you acknowledge in your paper if you’re successful and you’re able to exclude exclusionary zoning, let’s say ban it on a constitutional basis, you still have the boots on the ground.

[00:30:11] You still have the local, officials that have some power to approve discretionary discretionarily approved. project. So you can say, okay, I can’t zone, if I want to get this building built, I still have the need, the approval of the local officials. They can still effectively, exclude me, even though it’s not a zoning issue.

[00:30:27] Can’t they?

[00:30:29] Ilya Somin: So, it depends, obviously, exactly how the resulting legal decisions work, but I would argue that if you have an approval system, which actually severely restricts you, and in practice is a right to block, as opposed to a right to ensure that health and safety standards are met and the like, then that too would be a restriction on use.

[00:30:47] And that too would be a form of, would be an unconstitutional taking. More generally, if you take away from these local governments, the most systematic and sweeping ways in which they can engage in exclusionary zoning, yeah, they might try to do other things. and those other things would also need to be fought.

[00:31:06] And in our paper, we talk about how legislation and judicial review can work in tandem to combat these things. but, nonetheless, we could make significant progress by ending exclusionary zoning, even though, we wouldn’t eliminate all so-called NIMBY tools, NIMBY not in my backyard, restrictions that, where people try to block new housing constructions, but in principle, the same logic, which says that exclusionary zoning isn’t taking also says that some of these other kinds of, rules or permit requirements and the like, are also takings.

[00:31:37] Ideally, what you would do is have a statewide law, that gives people the right to build as of right, meaning that there’s a presumption in Favor of your right to build what you want, as opposed to a presump, a rule that says you can only build it if you get a special permit. And then the burden of proof would be on the government if they wanna stop you from building to say, well, so baggies housing project, it imposes a great threat to public health or safety, like the way it’s designed, it seems like there would be lots of disease, rodents Honda property or something like that.

[00:32:08] And therefore, we wanna keep, we wanna stop it or. at the very least, we want to require him to, have pest control or something like that, but, there’s no 100 percent perfect way to protect this constitutional right just as, with other constitutional rights, but we can do vastly better, than we’re doing now in much of the country, even though, perfection may be out of reach.

[00:32:29] Joe Selvaggi: Well, that, that’s a great answer. I want to pin you down just before we do something about our challenges here in Boston. you may not know the details, but we have a state law that sort of mandates that those towns that are near Boston or on a vital commuter like mass transit or a highway, need to build or set aside areas for affordable or high-density housing.

[00:32:51] A lot of towns have fought back. I don’t know if you know where Milton is, but they’re fighting back. It’s very high profile. Does your case and your paper or the constitutionally, constitutionality of zoning essentially moot out these arguments? Meaning some, a place like Milton would have no power really to say these projects can’t go on or is there something I’m missing here?

[00:33:11] Ilya Somin: at the very least, they would have much less power than they do currently. because if they wanted to restrict housing, they would have to pay compensation, which is a practical matter. They’re not going to want to do for hundreds or thousands of property owners. or alternatively, they would have to show that This restriction falls within the police power exception, i.

[00:33:33] e. the building, multifamily housing in the town of Milton, which I am familiar with. I grew up in Lexington, which is right near Milton. So, Milton would have to show that building multifamily housing in these particular parts of the town would pose some kind of great threat to health or safety.

[00:33:48] I don’t know for certain that they can’t show that, but I would be, I would tend to be skeptical in the absence of, the kind of, Judicial Review that, you know, we advocate in our article. Obviously, it is desirable to have statewide reforms to constrain local governments. A number of states in Oregon and Summerton, California, and some others have begun to enact those.

[00:34:09] Massachusetts enacted the more limited WAD that you described, and the town of Milton is now, going to court to argue that the law shouldn’t apply to them, and I don’t know all the details of their arguments. This has to do with the division of power between state and local governments under state constitutions, and those vary.

[00:34:28] Massachusetts is what is known as a home rule state, which in plain English means that there’s a presumption that Local governments have autonomy in a wide range of areas, including land use law, but in Massachusetts, as in some other states, that can be preempted by a statewide law. So I guess there’s an issue here, whether this 1 is properly preempted and what the scope of that law is.

[00:34:51] On the other hand, there are states. Like, where I live in Virginia, which are so-called Dillon’s Rule states, and under that rule, local governments have only those powers that are specifically granted to them by the statewide government. And there, it’s a bit easier to override local autonomy on zoning as on some other issues.

[00:35:12] Though, so far, sadly, we in Virginia have failed miserably at trying to pass statewide zoning reform, even though there are both Republicans and Democrats who are for it, including the current governor, Gwen Youngkin, who is a Republican, but he has not so far been very successful in, getting his way on that issue.

[00:35:29] Joe Selvaggi: Well, yeah, you mentioned a very good point I want to finish on, which is this is not an argument of left or right or Republican, Democrat. This is coming from all sides. I’ll say I’m sure when matching my listeners, I’ll argue that 100 percent probably agree that the cost of housing is way too high, particularly in places like Boston or near DC where you are.

[00:35:48] I think they would also probably concede that zoning plays a big part in that. And they also might. Also, consider themselves passionate advocates for the wisdom of our constitution and its precedents. But, those are the same people who would call you or me a heretic for advocating for zoning reform because, though it would transform our housing costs, they don’t want to go there.

[00:36:07] Who do you think, given it’s not clearly left or right, that seems to be carrying the ball here? Who’s an advocate?

[00:36:14] Ilya Somin: Who are the opponents? So the coalition to end exclusionary zoning, or at least severely limit it, is a pro-sociological one. It’s the so-called YMD, Yes In My Backyard coalition. It includes libertarians like me, and Ed Glazer, the famous Harvard professor, who is probably one of the world’s leading authorities on zoning restrictions, but it also includes people on the left.

[00:36:34] Like Paul Krugman, the economist on, Joe Biden’s Council of Economic Advisors, who just put out an excellent chapter in the Economic Report of the President, which goes over, zoning restrictions and housing costs, very well, and, there are other people on the left and on the right, who support this.

[00:36:50] It unites Glenn Youngkin, the conservative governor of Virginia, with Gavin Newsom, the left-wing governor of California. This is one of the few issues on, which these two agree, but also there are both left and right-wing NIMBYs as well, the not-in-my backyard people, and I would say there are several different motives, for this one is historically a big motive, as we said before, the fear of having poor and minorities move in. I think that is much less common than it used to be, but we would be naive to think that kind of racial or class prejudice has completely disappeared, especially when people are behind closed doors.

[00:37:24] They may not admit that they don’t like the idea of poor blacks or Hispanics moving in, but, they may dislike it nonetheless. And Donald Trump actually tried to appeal to dissentiment in the 2020 election when he tried to argue that, zoning reform would be terrible, and it would let minorities move into white neighborhoods.

[00:37:40] He mostly was not very successful in that appeal, but there are people who, you know, who feel that way. A 2nd motive, is, just fear of, the reduction in housing costs or pressure on infrastructure and the like, or just a simple desire to maintain the current character of the community and keep it the way that it is.

[00:37:58] And if you really are categorically opposed to change. and you just want the community exactly as it was and never changed in any significant way, and you don’t care about economic considerations, you don’t care about property rights, you don’t care about opportunities for the poor, then indeed, I probably can’t convince you to my side.

[00:38:14] All I can say is that you should not be allowed to use the power of government to force other people to conform to your precepts. Finally, a big motive for opposition to zoning reform is simple economic ignorance. A number of studies show that large proportions of the population, 40 or 50 percent perhaps, simply don’t understand the basic economics that building more housing reduces costs and more people have that misconception, it turns out, with respect to housing than with respect to other products. For people who understand that sort of allowing more cars to be built reduces costs for car consumers. Some of them don’t understand this when it comes to housing. So, therefore, they have this view that, if you let developers build stuff, only the rich developers will benefit or even that it might actually increase costs, by increasing gentrification or something like that.

[00:39:06] And I should add, this is not because these people are stupid. Some of them are, but, it’s more of a matter of just, what economists call rational ignorance that, people. For understandable reasons, most of them devote only limited time and effort to studying public policy issues.

[00:39:23] The incentive to do that is relatively weak, and many of them also don’t devote any significant amount of time to studying even basic economics. So, if you don’t know these things, and you can be a very smart person and not know them simply because you’ve never taken the time to learn them, and you’re just suspicious of developers, suspicious of rich people and so forth, then you can persuade yourself that if you let developers build stuff, only a few rich people will benefit, or, the wealth developers will screw over the community and the like.

[00:39:52] So when you add up racist and classist motives, fear of change and fear of reduced housing prices, and then finally, economic ignorance, you do get a significant amount of opposition, which is heightened by the fact that many of the beneficiaries Many of the people who would benefit the most from zoning reform are people who do not yet live in the communities they might move into, so they don’t vote in local elections.

[00:40:15] They rarely, if ever, can show up at a zoning board meeting or at a local government meeting or an assembly or the like, and therefore, they are excluded from, from participation in the relevant process. In our article, Josh Braver and I emphasize that this is a strong basis, for having judicial review take a hand, under various living constitutional theories, which emphasize the importance of, using judicial review to protect people who cannot fend for themselves in the political process.

[00:40:45] It’s difficult to identify a group more like that. then, then people who, have no right to participate in the process whatsoever, but are nonetheless, severely harmed by it and that they end up being trapped, in places where there’s little or no opportunity.

[00:40:59] Joe Selvaggi: Yeah, I regret not having more time to address, Professor Braver’s, let’s say, his, view of the argument.

[00:41:05] Ilya Somin: We disagree on what is the correct interpretation of the Constitution, but he and I do agree on the implications of the various theories for this issue, both within constitutionalist and originalist. So everything that we say in the article is something that we both agree on, even though we differ on some other things that are not covered in the article. In the article, we do not take a stance on what is the correct theory of constitutional interpretation.

[00:41:31] Joe Selvaggi: Fair enough. Zoning reform is a good idea, and it’s also a fair idea, a decent idea. So, of course, we couldn’t cover all the details, all the nuances of the paper. Where can our listeners go and find and read your paper?

[00:41:45] It’s free, it’s online, where can they go?

[00:41:48] Ilya Somin: It is on SSRN. which is an open site where academic papers are put up. The article is forthcoming in the Texas War Review and we will revise it somewhat before then, but if you Google my name and exclusionary zoning, you should be able to find the article, and also you can find a lot of other things that I’ve written about the topic.

[00:42:07] Joe Selvaggi: Wonderful. Well, we, I’m sure we’ve given our listeners a lot to think about, but, there is cognitive dissonance here. They may be aware that they are rationally ignorant of a particular topic, so let’s see if they can bravely approach it and look more deeply into it. So, thank you very much for joining me today again on Hubwonk, Ilya.

[00:42:25] You are always a great guest. Thank you very much. Thank you. This has been another episode of Hubwonk. If you enjoyed today’s show, there are several ways to support Hubwonk and Pioneer Institute. It would be easier for you and better for us if you subscribed to Hubwonk on your iTunes podcatcher. It would make it easier for others to find Hubwonk if you offered a five-star rating or a favorable review.

[00:42:50] We’re of course grateful if you want to share Hubwonk with others. If you have ideas or comments or suggestions for me about future episode topics, feel You’re welcome to email me at Please join me next week for a new episode of Hubwonk.

Joe Selvaggi talks with George Mason Law Professor Ilya Somin about the costs, benefits, and legal foundations of exclusionary zoning argued in his recent paper: The Constitutional Case Against Exclusionary Zoning.


Ilya Somin is a Professor of Law at George Mason University. His research focuses on constitutional law, property law, democratic theory, federalism, and migration rights. He is the author of his most recent book, Free to Move: Foot Voting, Migration, and Political Freedom (Oxford University Press, 2020, revised and expanded edition, 2021). Somin’s writings have been cited in decisions by the United States Supreme Court, multiple state supreme courts and lower federal courts, and the Supreme Court of Israel. He has testified on the use of drones for targeted killing in the War on Terror before the U.S. Senate Judiciary Subcommittee on the Constitution, Civil Rights, and Human Rights. Before joining the faculty at George Mason, Somin was the John M. Olin Fellow in Law at Northwestern University Law School from 2002-2003. In 2001-2002, he clerked for the Hon. Judge Jerry E. Smith of the U.S. Court of Appeals for the Fifth Circuit. Professor Somin earned his BA, Summa Cum Laude, at Amherst College, MA in Political Science from Harvard University, and JD from Yale Law School.