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Liberalizing Cities
From The Ground Up
Here are the results of my first use of OpenAI’s Deep Research tool. I asked for information that I know well – and in which inaccurate research has been published. It did a great job and relied substantially on my…
A review of a book that endorses more flexible zoning, but doesn't reject zoning entirely.
In recent years, three states have legalized or decriminalized jaywalking: Virginia and Nevada did so in early 2021, and California legalized jaywalking at the start of 2023. The traditional argument for anti-jaywalking laws is that they protect pedestrians from themselves, by limiting their ability to walk in dangerous traffic conditions. If this argument made sense, we would have seen pedestrian traffic fatalities increase in less punitive states. For example, if jaywalking laws were effective, California’s pedestrian death rate would have increased in 2023 (when jaywalking was legalized). Instead, the number of deaths decreased from 1208 to 1057, a 12 percent drop. (Relevant data for all states is here). Although pedestrian deaths decreased nationally, the national decrease was only about 5 percent (from 7737 to 7318). On the other hand. the data from Nevada and Virginia is less encouraging. As noted above, jaywalking was decriminalized in those states in 2021, so the relevant time frame is 2021-23. During this period, pedestrian deaths increased quite modestly in Virginia (from 125 to 133) and more significantly in Nevada (from 84 to 109). On balance, it does not seem that there is a strong trend in either direction in these three states- which (to me) supports my previously expressed view that Americans should be trusted to walk where they like rather than being harassed by the Nanny State.
Thanks to local journalist Margaret Barthel for finding and posting the elusive judicial decision that has struck down Arlington, Virginia's, missing middle ordinance, pending appeal.
As anticipated by the “radical agreement” among the parties and justices at oral argument, the Supreme Court’s recently released decision in Sheetz v. County of El Dorado put to rest the question of whether legislatively-imposed land use permit conditions are outside the scope of the takings clause. The unanimous ruling confirms the common-sense proposition that a state action cannot evade constitutional scrutiny simply because it’s a law of general application rather than an administrative decree, and subjects conditions on building permits – whether monetary or not – to the essential nexus and rough proportionality requirements enshrined in the Nollan and Dolan cases. The narrow ruling reflects the sound principle that, when dealing with constitutional questions, a court shouldn’t address hypotheticals or other issues not in direct contention among the parties. Nonetheless, the majority felt compelled to state that it would not address “whether a permit condition imposed on a class of properties must be tailored with the same degree of specificity as a permit condition that targets a particular development,” which seems to leave open the possibility that the answer might be “no.” Justice Gorsuch, in his concurrence, was astonished by this statement, wondering how a court which had just endorsed the universal applicability of the takings clause could stumble into another arbitrary distinction with no basis in common sense or constitutional law. The court’s concern was not a jurisprudential one, but apparently a policy one: in another concurrence, Justices Kavanaugh, Kagan and Jackson note that “[i]mportantly, therefore, today’s decision does not address or prohibit the common government practice of imposing permit conditions, such as impact fees, on new developments . . . .” The justices’ impression that applying the current Nollan/Dolan formula to impact fees would or even could “prohibit” them is unfounded. As Emily Hamilton and I wrote […]
Just 1 in 25 new apartments is owner-occupied. What happened to building condos?
By Andrew Crouch and Charles Gardner In March 2023, Arlington County, Virginia passed an amendment to its zoning ordinance which legalized so-called “missing middle” housing typologies in several residential districts, including many which had been zoned for single-family homes. Ten local homeowners filed suit in Arlington County Circuit Court in April 2023, alleging among other things that the proper procedure for amending the ordinance was not followed and the zoning change should be invalidated. The County Board and Planning Commission, the defendants in the lawsuit, fired back, alleging a fatal lack of standing and claims that, if they were true, could not and should not be resolved by the circuit court. During proceedings held on October 19, 2023, Judge David Schell delivered a win to the plaintiffs, ruling that they have demonstrated standing by virtue of being within the rezoned area and that the case against Arlington County’s missing middle zoning ordinance amendment therefore may proceed to trial. Initial trial proceedings are scheduled for November 16, 2023. Judge Schell also ruled in favor of the defendants on a separate issue, holding that one of the plaintiffs’ seven claims, alleging a violation of the Virginia Freedom of Information Act (VFOIA), should be dismissed. With respect to standing, Judge Schell ruled that the claims made by the homeowners, if true and presented in the most favorable light, were justiciable and ripe for relief, and that the homeowners had standing to challenge a general zoning ordinance. The latter holding may set precedent, as the cases presented to the court by the parties did not address the issue of standing in the context of an ordinance-level, district-wide zoning change. In their 162-page complaint, plaintiffs claim entitlement to sue on the basis that the ordinance “will result in a higher tax assessment,” although this appears […]
“Renting in Providence puts city councilors in precarious situations.” That was the Providence Journal’s leading headline a few days ago, as the legislature waited for Governor Daniel McKee to sign a pile of housing-related bills (Update: He signed them all). Rhode Island doesn’t have a superstar city to garner headlines, but it’s housing costs have mounted as growth has crawled to a standstill. But unlike in Montana and Washington, Rhode Island’s were largely procedural, aiming to lubricate the the gears of its existing institutions rather than directly preempting local regulations. House Speaker Joseph Shekarchi (D-Warwick), who championed the reforms, clearly drew on his professional expertise as a zoning attorney to identify areas for procedural streamlining. Specific and objective Six bills transmitted to the governor cover the general rules affecting most Rhode Island zoning procedures: S 1032 makes it easier to acquire discretionary development permission. Municipalities cannot enforce regulations that make it near-impossible to build on legacy lots that do not meet current regulatory standards. Municipalities can more quickly issue variances and modifications. (Rhode Island draws a unique distinction between minor and substantial variances, labeling the former “modifications” and subjecting them to a simpler process. A substantial variance must go before a board for approval; a modification can be approved administratively unless a neighbor objects. Municipalities must issue “specific and objective” criteria for “special use permits”, otherwise those use are automatically allowed as of right. That phrase – specific and objective – shows up again and again in Speaker Shekarchi’s bills. S 1033 requires that zoning be updated to match a municipality’s own Comprehensive Plan within 18 months of a new plan’s adoption. It also requires an annually updated “strategic plan” for each municipality, although the content and legal force of the strategic plans are unclear to me. S 1034 broadly […]
As various housing reform bills work their way through the lawmaking process in American state legislatures, several new legal challenges to local land use and zoning ordinances are simultaneously underway in state and federal courts. Among these courtroom efforts are challenges to occupancy restrictions, short-term rental bans, inclusionary zoning and single-family zoning itself. On May 9, 2023, the Pacific Legal Foundation filed a complaint on behalf of two plaintiffs in the United States District Court for the District of Kansas challenging a City of Shawnee ordinance (Ordinance No. 3419) which prohibits more than three unrelated adults from living together in a single residence. These limits, often adopted by localities as a means of excluding student renters or other groups of persons who are perceived as subverting the proper purpose of the so-called single-family home, are challenged by the plaintiffs as a violation of the constitutional right of free association and specifically the right to select and establish a household. The lawsuit also alleges that the ordinance violates equal protection and is beyond the scope of Kansas’ zoning enabling act (K.S.A. 12-741 et seq.), which does not authorize cities to regulate persons based upon blood or legal relationship. In Nevada, the Clark County District Court on February 16, 2023 issued a preliminary injunction blocking Clark County from implementing and enforcing certain sections of its short-term rental ban (Clark County Code, Title 7, Chapter 7.100, Sections 7.100.110-.260). The lawsuit, filed by the Greater Las Vegas Short Term Rental Association, alleges among other things that the ordinance is arbitrary and capricious, reads as unconstitutionally vague, infringes on free association and effects a taking of property. That ruling has now been appealed to the Supreme Court of Nevada. On December 15, 2022, the Institute for Justice commenced a lawsuit on behalf of a Seattle […]
Legislators in Colorado and Tennessee have introduced bills modeled on Arizona’s Private Property Rights Protection Act, a law that requires municipal governments to compensate landowners when new land use regulations make land less valuable. Both states already have areas with housing affordability problems due in part to land use regulations that are already on the books. Requiring local policymakers to compensate property owners for downzoning going forward won’t do anything to reduce existing barriers to housing construction, but they can at least help prevent the problem from getting worse. Though the Fifth and Fourteenth Amendments to the Constitution state that Americans must be compensated when private property is taken by the government, the Supreme Court has long held that state and municipal governments generally don’t have to compensate property owners when land use restrictions reduce their property values, even the rules eliminate nearly the entire value of the property in question. In 1926, the Supreme Court ruled in Euclid v. Ambler that local governments’ police powers, delegated to them by their states, give them the authority to restrict real estate development. The 1978 decision Penn Central v. New York further entrenched this authority. The Court found that land use restrictions are not takings requiring compensation for property owners so long as the property maintains any economic value at all. In Smyth v. Falmouth, the Court held that even a building permit denial that reduced a property’s value by 91% didn’t require the locality to compensate the owner. Law professor Ilya Somin points out that it wasn’t always this way. The District Court that heard Euclid prior to the Supreme Court determined that local governments were required to compensate property owners for regulatory takings just as with eminent domain. Their opinion stated: The argument supporting this ordinance proceeds, it seems to […]
