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Michael Lewyn

Michael Lewyn

  • Joined: May 21, 2025
  • Articles: 123

Is zoning unconstitutional?

Two law professors, Joshua Braver of Wisconsin and Ilya Somin of George Mason, are coming out with an article suggesting that exclusionary zoning (by which they mean, rules such as apartment bans and minimum lot sizes that are designed to exclude people less affluent than an area’s current residents) violate the Takings Clause of the U.S. Constitution. Rather than focusing solely on originalist interpretations of the clause and on policy-oriented “living Constitution” theories, the authors rely on both theories. Under a living Constitution view, they argue that zoning unfairly disfavors vulnerable minorities (anyone who cannot afford to live in a place under current zoning), unfairly limit individual autonomy by limiting the right to move to a new neighborhood, and creates an oligarchy of elite homeowners. From an originalist perspective, the authors argue that the Takings Clause was intended to protect “a right to use [property], not merely a right against physical seizure by the state.” The authors admit that this right is not absolute, but is limited by the police power of the state. However, the authors cite some early treatises suggesting that the police power is limited to truly dangerous activities, as opposed to merely unpopular land uses such as apartments.

Apples to apples housing cost comparisons

I recently ran across an interesting discussion on Twitter about housing costs. Someone praised Chicago’s low housing costs, and someone else responded that because Chicago’s most troubled neighborhoods are so unusually dangerous and disinvested (compared to the most troubled parts of a safer city like New York), the low costs of these areas artificially deflated citywide averages. To put it another way, to compare Chicago and New York you should look at comparable neighborhoods rather than regionwide averages. For example, one reasonable comparison might be between Chicago’s reasonably desirable inner suburbs and New York’s. I picked four suburbs that I have visited and that are reasonably close to city boundaries: Great Neck and Cedarhurst on the New York Side, Skokie and Evanston on the Chicago side. According to Trulia.com, the cheapest two bedroom condo* (other than one that clearly needs major renovations) in Evanston sells for $115,000 and the cheapest in Skokie for $165,000. By contrast, Great Neck condos start at around $350,000, and Cedarhurst prices are similar. Similarly, elite intown areas are cheaper in Chicago. I looked at Chicago’s Lakeview, where I spent part of my honeymoon five years ago; two-bedroom units there start at $235,000. By contrast, in Manhattan’s Upper West Side such units start at $730,000 (not counting units that require extensive renovation or are income-restricted). To sum up: regional averages do seem to reflect the reality of housing costs, at least in these two cities. *I picked two bedroom condos for the somewhat arbitrary reason that I currently live in a two-bedroom apartment. *

Poor People Move Too

It is well known that rent control is not particularly effective in controlling rents; cities like New York and San Francisco have rent control and yet are quite expensive. Supporters of rent control, however, often argue that rent control is valuable for a different reason: it makes housing more stable, by making it more difficult for a tenant to be evicted for nonpayment of rent. But it seems to me that there’s an assumption hidden behind this idea: that the neediest people are the ones who are ordinarily most stable, and thus do not suffer from rising housing costs as long as they are protected by rent control or similar measures. For example, law professor Richard Schragger complains that pro-housing zoning reform will “redound to the benefits of investors and developers and not to those residents with limited resources who seek to afford to remain in place.” (emphasis added) In the next sentence, he adds that “those in the market for housing- including middle-class families, recent college graduates, and young families– are often priced out of high-cost urban markets. But reforms should be careful not to equate their interests with those of the working class and especially minority poor…” (emphasis added)* In other words, the “working class” and “minority poor” and people “in the market for housing” are somehow two separate groups. This assumption might be persuasive if poor people moved less often than other people. But neither common sense nor data support this idea. If you are poor, you might be less likely to have steady employment, which means that your income is likely to be unstable. Thus, you are more likely than other Americans to be evicted or to move voluntarily even if rents are stable. Even if you rely on government transfer payments, you are at risk […]

traffic and development

One common NIMBY argument is that new development is bad because it brings traffic. As I have pointed out elsewhere, this is silly because it is a “beggar thy neighbor” argument: the traffic doesn’t go away if you block the development, it just goes somewhere else. But my argument assumed that new development would in fact bring traffic wherever it occurred. A new study by three North Carolina State University scholars suggests otherwise. The study concludes that “rural locations are more likely to experience an increase in traffic due to increased development as compared to urban land uses.” (p. 19). This is because “locations that did not experience a significant traffic increase… had a higher traffic volume before development”. (p. 20). This might be because those areas were “already highly saturated, which served as a major disincentive for the migration of traffic” (id.) So in other words, if I am understanding this paper correctly, an already-congested area will not get much more congested with new development, because people react to congestion by going elsewhere or using slightly different routes. By contrast, when a basically uncongested area gets new development, the new development does not create enough traffic to scare off drivers.

Is there really a building boom? Not as much as you might think

I’ve noticed numerous stories and tweets about a building boom: for example, a recent CNBC story asserts that the number of new apartments is “at a 50-year high.” Various twitterati have used this claim to support their own points of view: some claim that rents are stabilizing because of this new surge in supply, while others argue that the failure of rents to decline shows that new supply doesn’t reduce rents. But is supply really increasing that rapidly? Federal statistics on housing construction are at a Census housing data webpage. I looked at the “New Housing Units Completed” table and found that about 216,000 housing units in structures with over five units were completed in the first half of 2023. On the positive side, this is definitely an improvement over the 2010s, when the economy was still recovering from the 2008 recession. For example, in the first half of 2019, just over 169,000 such units were built, and 2018 was pretty similar. But is construction still up to Reagan-era levels? Not really. In the first half of 1986, almost 258,000 relevant units were completed. And in the first half of 1973, just over 378,000(!) such units were built. And these levels of construction were in a less populous country. Today the U.S. population is about 335 million, up from about 240 million in 1986 and 212 million in 1973. So if construction had kept up with population, our new unit count would be about 1/3 higher than in 1986, and almost 60 percent higher than in 1973. Instead, construction went down. To put the facts another way: our half-year multifamily construction rate is about 644 per one million Americans for 2023, down from 1075 per million in 1986 and 1783 per million in 1973. That’s not my idea of a […]

Are Republicans or Democrats more pro-housing? Yes.

Some weeks ago, I was participating in a Zoom discussion on NIMBYism, and someone asked: are Republicans and conservatives more pro-housing than Democrats and liberals, or less so? After examining some poll data, I discovered that the answer depends on how the question is asked. A 2023 Yougov poll asked respondents to choose between two alternative views: “People should be free to buy land and develop real estate where they please” and “The government should limit where people are allowed to build things.” 64 percent of Republicans favored the free-market option, as opposed to only 47 percent of Democrats. Similarly, a 2023 California poll asked Californians whether state government should “ease current land use and environmental restrictions to increase the supply of housing.” 64 percent of Republicans favored less regulation, as opposed to only 48 percent of Democrats. Similarly, 62 percent of conservatives and only 49 percent of liberals favored less regulation. Thus, it seems that where development issues are framed as a choice between government regulation and freedom, Democrats are more pro-regulation and Republicans more pro-freedom. Where questions about regulation exclude the magic word “government”, partisan differences become a bit narrower. A July 2022 Yougov poll asked about removing “Regulations and codes that prevent developers from constructing more housing”. Republicans favored the free-market answer by a 43-40% margin, while Democrats disagreed by a 45-38% margin. Polls that don’t directly reference regulation sometimes show that Democrats are more pro-housing. For example, a June 2022 Yougov poll asked respondents whether more apartments should be built: 83 percent of Democrats said yes, as opposed to 68 percent of Republicans. When asked whether more apartments should be built in respondents’ “local area”, the Democratic percentage dropped to 74 percent, and the Republican percentage to 50 percent. When a poll asks generally about “density” […]

Why lawyer salaries matter

Today’s Wall Street Journal includes a front-page article about sky-high lawyer incomes. The article points out that top lawyers can earn $15 million per year or more. Why is this relevant to urbanism or markets? Because one common argument against new condos (at least in NYC) is that they will be bought by foreign investors instead of by local residents. In turn, this argument rests on the assumption that new housing is so expensive that the local rich can’t afford it. But someone who earns $15 million per year can afford almost all new condos, even in Manhattan. When I bought a condo in Atlanta many years ago, the sticker price was about 2.6 times my salary. Even if you assume no one will pay more than that, this means that a $15 million household can pay for a $39 million condo. Almost every new condo in Manhattan costs less than $39 million. My latest zillow.com search reveals that 541 units in condos and co-ops were built in 2020 or later. Only seven of those units cost over $39 million. In fact, only 34 cost over $15 million, and the majority (376 of the 541) cost under $5 million- certainly far more than I could ever afford, but affordable even for an attorney earning $1 or 2 million per year.

On coexistence

One common NIMBY* argument is that new housing (or the wrong kind of new housing) will “destroy the neighborhood.” For example, one suburban town’s politicians fought zoning reform in New York by claiming that allowing multifamily housing “is a direct assault on the suburbs.“ Indeed, many people do seem to believe that apartments and houses are somehow incompatible. But I saw an interesting counterexample recently. A couple of weeks ago, I attended the CNU (Congress for the New Urbanism) conference in Charlotte, North Carolina. CNU usually sponsors neighborhood tours, and I toured Myers Park, one of the city’s richest neighborhoods. Myers Park was built in the 1910s; most blocks are dominated by large single-family houses with an enormous tree canopy. Although Myers Park is only a couple of miles from downtown Charlotte, it certainly looks suburban, if by “suburban” you mean low-density and dominated by houses. (According to city-data.com, the neighborhood density is just below 4000 people per square mile, less than that of affluent Long Island suburbs like Great Neck and Cedarhurst). And yet on one of the neighborhood’s major streets (Queens Road) apartments and houses seemed to alternate. This does not seem to have reduced home values; the average value of detached homes there is over $1 million, about four times the statewide average. Moreover, Myers Park apartments are not the sort of “missing middle” housing that is virtually indistinguishable from a house. I saw a five-story building in Myers Park: not a skyscraper but definitely not something that looks like its neighbors. Not far away is a four-story building that looks like it has a few dozen units. In other words, apartments and houses can coexist, even in places that are very suburban in many ways. *As many readers of this blog probably know, NIMBY is an […]

Another of these studies that don’t mean what some people thinks it means

A group of researchers at the Urban Institute came out with a new study on zoning and housing affordability. At governing.com, a headline about the study screamed: “Zoning Changes Have Small Impact on Housing Supply.” The Governing writer’s spin was, of course, “there’s no evidence it [upzoning] makes housing cheaper.” Governing has published numerous articles that criticize pro-supply zoning reform (one of which I critiqued on this blog), so this conclusion seems to fit in with its general point of view. The most important conclusion (to me) of the study is that it reinforces the commonsense view that lower housing supply leads to higher costs. In particular, the study concludes: “Reforms tightening regulations are associated with increased rents, potentially worsening conditions for low- and moderate-income renters.” (page 4, emphasis mine). What about upzonings (reforms that allowed more construction)? The study concludes that they “lead to a 0.8 percent increase in housing supply, on average.” (p. 28). How small is 0.8 percent? In fast-growing Harris County, Texas (Houston and its inner ring suburbs), 17 percent of the county’s 1.885 million units have been built since 2010, or about 1.7 percent per year. So 0.8 percent increase would be only five or six months’ worth of new housing in Houston- not a huge amount. Given the miniscule amount of reform the lack of impact on housing prices should hardly be surprising. In other words, if zoning allows six months’ worth of new housing (compared to the pre-reform status quo), things stop getting worse but don’t really get better. If zoning allows less housing, things get worse.

Do The Cities Need The Suburbs?

Aaron Renn has an interesting article in Governing. He suggests that even though urban cores are responsible for a significant chunk of the regional tax base, “[t]he city is dependent on the suburbs, too.” In particular, he notes that downtowns are dependent on a labor and consumer pool that extends far beyond downtown. For example, Manhattan is valuable because it is at the center of a vast region. He’s right- if you define “suburb” broadly as “everything that isn’t downtown.” A downtown that isn’t surrounded by neighborhoods is just a small downtown. But that isn’t always the way Americans understand suburbs. If you think of suburbs as “towns outside the city with a different tax base that are usually much richer than the city” , suburbs aren’t good for the city at all. Because of the growth of suburbs, cities have stunted tax bases because they have a disproportionate share of the region’s poverty, and have to pay for a disproportionate share of poverty-related government programs. By contrast, if cities resembled the cities of 100 years ago that included nearly all of their regional population, they would have stronger tax bases. (This may seem like a pipe dream to residents of northeastern cities trapped within their 1950 borders, but plenty of Sun Belt cities include huge amounts of suburb-like territory). Similarly, if you think of suburbs as “places where most people have to drive to get anywhere” their existence is not so good for the city. When suburbanites drive into the city they create pollution, and they lobby for highways that make it easier for them to create even more (while taking up land that city residents would otherwise use for businesses and housing). And when jobs move to car-dependent suburbs, that devalues city living, either because carless city residents […]

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