Document Type

Article

Publication Title

Case Western Reserve Law Review

Abstract

The politics of urban land use frustrate even the best intentions. A number of cities have made strong political commitments to increasing their local housing supply in the face of a crisis of affordability and availability in urban housing. However decisions to engage in “up-zoning,” or increasing the areas in which new housing can be built, are often offset by even more “down-zoning,” laws that decrease the ability of residents in a designated area to build new housing as-of-right. The result is that housing availability does not increase by anywhere near the amount that elected officials promised. In this Article, we argue that the difficulty cities face in increasing local housing supply is a result of the seriatim nature of local land-use decisions. Because each down-zoning decision has only a small effect on the housing supply, citywide forces spend little political capital fighting them, leaving the field to neighborhood groups who care deeply. Further, because down-zoning decisions are made in advance of any proposed new development, the most active interest group in favor of new housing—developers—takes a pass on lobbying. The result is an uneven playing field that favors down-zoning. Drawing on examples of “extra-congressional procedure” like the federal base closing commissions and the Reciprocal Trade Act of 1933, we argue that local governments can solve this problem by changing the procedure by which they consider zoning decisions. Specifically, they should pass laws that require the city to create a local “zoning budget” each year. All deviations downward from planned growth in housing supply expressed in the budget should have to be offset by corresponding increases elsewhere in buildable as-of-right land. This would reduce the degree to which universal logrolling coalitions can form among anti-development neighborhood groups. And the policy would create incentives for pro-development forces to lobby against down-zonings in which they currently have little interest. The result should yield a housing policy that more closely tracks local housing-development preferences.

First Page

81

Volume

62

Publication Date

2011

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