Final Published Version of “The Constitutional Case Against Exclusionary Zoning” Now Available
The final published version of my article “The Constitutional Case Against Exclusionary Zoning” (coauthored with Josh Braver) is now available for free download on SSRN. Here is the abstract:
We argue that exclusionary zoning—the imposition of restrictions on the amount and types of housing that property owners are allowed to build— is unconstitutional because it violates the Takings Clause of the Fifth Amendment. Exclusionary zoning has emerged as a major political and legal issue. A broad cross-ideological array of economists and land-use scholars have concluded that it is responsible for massive housing shortages in many parts of the United States, thereby cutting off millions of people – particularly the poor and minorities—from economic and social opportunities. In the process, it also stymies economic growth and innovation, making the nation as a whole poorer.
Exclusionary zoning is permitted under Euclid v. Ambler Realty, the 1926 Supreme Court decision holding that exclusionary zoning is largely exempt from constitutional challenge under the Due Process Clause of the Fourteenth Amendment, and by extension also the Takings Clause. Despite the wave of academic and public concern about the issue, so far, no modern in-depth scholarly analysis has advocated overturning or severely limiting Euclid. Nor has any scholar argued that exclusionary zoning should be invalidated under the Takings Clause, more generally.
Article from Reason.com
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