To get more housing we need urbanists & constitutional lawyers to get together & file a lot of lawsuits. That’s the case I make in this post. Here’s a summary thread about it. In short, urbanists & libertarian/conservative lawyers need to talk. & sue. 1/https://ij.org/sc_blog/lets-take-zoning-to-court/ …
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There’s lots of recognition that our land-use policies, especially zoning, cause all kinds of societal problems, w/ limited housing at the top of the list (and it’s a long list!). Indeed, there’s started to be some push-back in city and state legislation to address this. 2/
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But we have a long way to go. It’s basically a civil rights movement & is still pretty new. And although what it’s done so far has been very promising, there’s something it’s missing that past civil rights movements have used: constitutional public interest litigation. 3/
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There have been some great & promising starts in some kinds of litigation, using state statutes, or even city ordinances, to make cities simply follow the law to allow more housing. But the language of civil rights is constitutional litigation. And there we haven’t seen much. 4/
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Urbanists (who culturally & economically are usually pretty left-leaning) & free market public interest lawyers (who culturally are all over the place, but economically are, obvs., not left-leaning) both, rightly, believe that land use & zoning are screwed up. 5/
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There’s a question for each group. That for the free market public interest lawyers is why aren’t you suing about it? (Some are, but not many) They’ll tell you it’s because in Euclid v. Amber Realty (1926) the Supreme Court said “you will lose.” And they’re right! Almost . . . 6/
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The same was true in other civil rights movements, but that didn’t stop people from suing. One method has been to use state constitutions. I speculate that maybe why that hasn’t happened more on housing issues is b/c of fallout from the Mount Laurel litigation in NJ. 7/
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I give some reasons why Mount Laurel shouldn’t mean we don’t have litigation in other states. And, indeed, if things go well perhaps we could even go back to federal courts one of these days. 8/
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The question for urbanists is why aren’t you getting together w/ lawyers to encourage this litigation? I think it’s because they’re, understandably, not very familiar w/ the circle of property rights lawyers, like my colleagues at IJ, who do this sort of thing, & our language. 9/
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Odgovor korisniku/ci @IJSanders
I'm interested to learn about legal challenges to exclusionary zoning. My read of Mt Laurel & Ch 40B is that neither have resulted in fundamental zoning reform or alleviating high housing costs, while creating more hostility btwn local & state govts. Open to other models, though.
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I think the long-term outcome of MT was as you say. My hope is that with the bit of heightened scrutiny available under state constitutions some extreme elements of zoning could be pushed back. Here's an example regarding cosanguinity laws from Ohio. https://ohioconstitution.org/federal-court-victory-forbidding-more-than-three-people-from-living-together-violates-ohio-constitution/ …
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