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Wednesday, April 18, 2018

Anika Singh Lemar on why, despite SB 827’s defeat, states might still enact laws preempting NIMBY local zoning

[Editor’s note: SB 827, state Senator Scott Wiener’s effort to attack NIMBY zoning that has driven California into an acute housing crisis, just died in the state senate. For those of us who believe that excessive zoning is strangling our cities and segregating our population into regions of wealth and poverty, this is a terrible defeat for good policy. But there’s a silver lining: Bad policy provides good opportunities for great law review articles that try to fix them. In this spirit of trying to take comfort in scholarship during dark zoning times, I am posting Anika Singh Lemar’s guest-post on her outstanding article analyzing why state-level interest groups lobby against excessive local zoning. While those lobbying efforts could not quite do the trick with SB 827, Anika’s post and article both suggest that the future is not necessarily grim. Here’s Anika’s post, below]:

In an article forthcoming in the North Carolina Law Review, I argue contemporary state-level efforts like SB 827 to liberalize zoning are the progeny of earlier state laws requiring local governments to approve LULUs. Small-scale renewable energy infrastructure, family day cares, group homes, and mobile homes are LULUs which, in a substantial number of states, enjoy protection from local zoning. Examining the state legislative history behind these protected LULUs, I argue that while NIMBYs have lots of political power on the local level, they can be beat at the state level by a coalition that, surprisingly, typically includes state employees.

Consider, for example, child care programs located in the provider’s home, known as “family day cares.” It’s no surprise that NIMBYs hate day cares. Day cares involve pick-up and drop-off, often at rush hour, so there are traffic concerns. Kids are loud and obnoxious, so there are noise concerns. And family day cares by definition introduce commercial activity into residential areas, another NIMBY no-no.

And, yet, eighteen states prohibit local governments from banning family day cares. Why? Well, it won’t surprise you to learn that family day care providers do not have a powerful lobby in Sacramento, Tallahassee, Lansing, or Hartford. California, Florida, Michigan, and Connecticut legislators acted not at the behest of day care providers or even the parents who required those providers’ services. Instead, the legislative effort was driven by state bureaucrats responsible for issuing licenses to family day cares. Bureaucrats worried that day care providers would fail to apply for state licenses for fear of coming to the attention of local zoning authorities. As a result, the providers would operate outside of state oversight and potentially in violation of state laws and rules intended to protect children’s safety. Local zoning undermined state policy. As one lawmaker described the issue on the floor of the Connecticut General Assembly, “We’re either going to put them in places where people are going to have the courage to get licensed so that we know where they’re at, or we’re going to keep them underground and I think to keep the[m] underground is going to be a shame and the first time that something goes wrong in one of those unlicensed homes, I can tell you what the screaming in this Chamber is going to be. We got to get them licensed and we got to regulate them.”

Legislators didn’t defang overzealous local zoning authorities because they were libertarians seeking to free small business people from the yoke of neighborly overregulation. State legislators and bureaucratic agencies are, of course, regulators. But, as the paper demonstrates, they are sometimes also the subject, directly or indirectly, of regulation. In the case of the protected LULUs, state agencies bearing the brunt of local regulations led the charge to dismantle those regulations. Had it not been for those state agencies, various powerless constituencies – disabled individuals, family day care providers, clotheslines users, and families seeking low-cost child care – would have remained subject to overzealous land use regulations despite the cost that those regulations imposed on society at large.

Every state has a bureaucracy dedicated to affordable housing. One might wonder why state housing agencies have not played this role to advance state interventions to permit affordable and multifamily housing development. The answer lies in the distinction between subsidized and low-cost housing. In the classroom, I often refer to Capital “A” Affordable Housing (subsidized) and lower case “a” affordable housing (not subsidized, just cheap, typically old, small and/or dense). State housing agencies are charged with the former. They administer federal and state housing subsidies. Typically, that is their only charge. They are not held accountable under federal or state law for the high cost of market rate housing. Holding state housing agencies accountable for the high cost of market rate housing would force them to take action. In other words, expanding the authority of a state agency might result, counterintuitively, in less government regulation by inducing the agency to correct for local regulatory overreach.

In the case of land use, state agencies and bureaucracies are key to the deregulatory project of liberalizing zoning which is, in turn, key to addressing growing levels of economic inequality. There are not nearly enough subsidy dollars to solve a growing housing affordability crisis through Capital “A” Affordable Housing. And lower case “a” affordable housing requires significant changes to our zoning laws. We need SB827 and lots more laws like it in hot housing markets across the country. But, in order to get them, we may need, first, to empower our state housing and transportation bureaucrats to care about the cost of housing.

Posted by Rick Hills on April 18, 2018 at 07:53 PM | Permalink

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