The Zoning Straitjacket: The Freezing of American Neighborhoods of Single-Family Houses

Municipal zoning practices profoundly shape urban life in the United States. In regions such as Silicon Valley, regulatory barriers to residential construction have helped raise house prices to roughly ten times the national median. These astronomic prices have prompted some households to move to places, such as Texas, where housing is far cheaper. I have been engaged in an empirical study of zoning practices in Silicon Valley, Greater New Haven, and Greater Austin. This Article presents one of my central findings, induced from those metropolitan areas and elsewhere: local zoning politics typically freezes land uses in an established neighborhood of detached houses. The consequences are profound. Single-family neighborhoods constitute a solid majority of urban land in the United States. Within these frozen neighborhoods, real estate markets cannot respond to changes in supply and demand conditions. This Article marshals a variety of evidence to prove that the zoning straitjacket exists. It also discusses possible exceptions to it. The most plausible is proximity to a newly opened transit node, an event that may transform zoning outcomes, even in a neighborhood of houses. Building on the work of others, notably William Fischel, I explore the dynamics of local zoning politics. The goal is to develop an overarching theory that is consistent with the larger study’s three basic empirical findings: that suburbs in Greater Austin, Texas, are relatively pro-growth; that, even in Greater Austin, zoning policies freeze land uses in established neighborhoods of detached houses; and that the opening of a new transit node sometimes can loosen the zoning straitjacket

The Inevitable Trend Toward Universally Recognizable Signals of Property Claims: An Essay for Carol Rose

Presented at the 2010 Brigham-Kanner Property Rights Conference

Property in Land

Because human beings are fated to live mostly on the surface of the earth, the pattern of entitlements to use land is a central issue in social organization. As the epigraphs suggest, this issue has been the subject of fierce ideological controversy. Blackstone\u27s paean to private property comports with the mainstream Anglo-American exaltation of decentralized ownership of land. This vision underlies the Homestead Acts, the Jeffersonian wish for a polity of yeoman farmers, and the American dream of homeownership. Defenders of private ownership of land argue that it promotes individual liberty, political stability, and economic prosperity. Indeed, some economic historians have identified the emergence of freehold land tenure in Western Europe after the Dark Ages as a major source of the great release of energy that ensued there. To commentators such as Marx and Engels, by contrast, the creation of private property in land is a fount of evils, particularly inequality in wealth and the splintering of more organic communities into atomized, untrusting social environments of individual competition. The vision of collective living on shared land has had a broad and enduring appeal. It has inspired, among others, the Protestant sectarians, secular kibbutzniks, and counterculture experimentalists who have founded intentional communities. During the past century, skeptics of private property in land have come into power in a number of nation-states. In Israel, where the prevailing philosophy holds that land should belong collectively to the Jewish nation, 93% of the land area is stateowned; the Israeli Basic Law of Lands prohibits the government from transferring any of it except under special circumstances. Hewing to the program of Marx and Engels, Stalin collectivized Russian agriculture from 1929 to 1933 at the price of some nine million lives. Drawing on the same inspiration, Mao began China\u27s Great Leap Forward in 1957, precipitating a famine that killed some 20 million. Two decades later, land collectivizations contributed to a million deaths in Kampuchea and another million in Ethiopia. Beyond dispute, botched land policies have been the-chief domestic source of human woe during the past century

The Dauntless Gary Schwartz

Why did news of Gary\u27s malignant brain tumor (and, a few months later, of his death) trigger such an outpouring of affection? Partly it was the breadth and depth of Gary\u27s intellectual talents. He could expound with verve and insight on the joint and several liability of tortfeasors, the history of federal highways, school finance in California, the latest Robert Altman film, the aesthetics of Keith Wilkes\u27s jump shot, and the merits of knocking with ten early in a game of gin. Partly it was the quality of Gary\u27s character. As a torts teacher he had to deal with the concept of malice, but he personally was incapable of that emotion. His integrity and loyalty were total. At first meeting, you knew that you could count on him. In these brief remarks, however, I\u27ll stress another of Gary\u27s exceptional qualities: his mettle. He had an irrepressible urge to take on new challenges. He usually sought companions for his varied adventures and, given his energy and good humor, never lacked for them

Federalism and Kelo: A Question for Richard Epstein

Richard Epstein started his distinguished law-teaching career at the USC Law School. The year was 1968. He was 25. In that era, USC law faculty followed a strategy that has since come to be known as moneyball -the hiring of candidates undervalued by faculties of less adventurous law schools. Two years later, when I had the good fortune to be hired by USC, the median age of its law faculty was 33. In this hothouse of innovation, Richard was universally regarded as the most valuable player. This designation was literally true on the basketball court, where no other faculty member could jump high enough to touch the rim but Richard could touch it with the bottom of his palm. Richard visited at Chicago during 1972-73. Recognizing that he had found his natural home, he accepted Chicago\u27s offer of a permanent position. When Dean Dorothy Nelson reported this outcome at a USC faculty meeting, there were gasps of dismay. We all knew that we had lost one of a kind

Cities and Homeowners Associations

In his recent article, The City as a Legal Concept, Professor Gerald Frug compared the city and the business corporation as possible vehicles for the exercise of decentralized power. In the course of his analysis, Frug asserted that American law is deeply biased against the emergence of powerful cities and, by implication, is less restrictive on corporate power. Joining the circle of critical legal scholars who want to rethink and restructure American society, Frug suggested as a modest first step that cities be empowered to engage in banking and insurance operations. Frug believes that if cities were to manage enterprises of this sort, individuals would be better able to influence the decisions that affect their lives. According to Frug, citizen control through participatory democracy leads to public freedom, a form of human fulfillment that the critical legal scholars think an impersonal market economy suppresses. Despite his prodigious research, Frug never directed his attention at a third candidate for the exercise of decentralized power: the private homeowners association. The association, not the business corporation, is the obvious private alternative to the city. Like a city, an association enables households that have clustered their activities in a territorially defined area to enforce rules of conduct, to provide public goods (such as open space), and to pursue other common goals they could not achieve without some form of potentially coercive central authority. Although they were relatively exotic as recently as twenty years ago, homeowners associations now outnumber cities. Developers create thousands of new associations each year to govern their subdivisions, condominiums, and planned communities

Monitoring the Mayor: Will the New Information Technologies Make Local Officials More Responsible?

Our Topic— The City in the Twenty-first Century —is truly daunting. In preparing my remarks, I took some solace from the realization that a seminar that I have taught several times has forced me to contemplate how municipal affairs evolve over the centuries. I have named the seminar Urban Legal History: The Development of New Haven. As this title suggests, its focus is on the regulation of the physical development, since its founding in 1638, of the Connecticut city in which my law school is located. The seminar has proven to be exceedingly popular with law students. It enables them to study legal issues in context. Local libraries, historical societies, and government offices all contain primary materials for the seminar\u27s students to excavate. Facing an audience of law professors who teach courses in urban government, I recommend that each of you consider offering a seminar on the legal history of your law school\u27s municipality. Lynn Baker, for example, could present one on Austin; Bill Buzbee, on Atlanta; and Georgette Poindexter, on Philadelphia. Because New York City is so large, Richard Briffault\u27s ambitions might have to be restricted to Morningside Heights, and Clay Gillette\u27s to Greenwich Village