Excessive regulations have contributed to a nationwide shortage. But there’s a way to free ourselves to start constructing more.
Excessive regulations have contributed to a nationwide shortage. But there’s a way to free ourselves to start constructing more.
S ome things are rare because they are hard to make, like masterpiece paintings and holes-in-one in golf. Other things are scarce for no good reason, even when society demands more. Housing falls into this category.
Production has slowed in recent years, sparking a nationwide crisis, yet people who step forward with solutions meet resistance. One charity, Tiny House Hand Up, found that out when it tried to build affordable Southern-style cottages on its own land in Calhoun, Ga., north of Atlanta. Buyers loved the sizes — 540 to 600 square feet per home. The only thing missing was approval from city planners.
Public hearings brought out the usual cries of “not in my backyard.” One opponent complained that the project would invite “riffraff” to the area. Other residents shared similar sentiments. They worried about crime, litter, and falling property values. Lower-income families deserve a place to sleep at night, they acknowledged, but not near them.
The city council sided with the NIMBYs and denied the charity’s special-use permit in 2021, relying on a minimum-square-footage ordinance that requires new single-family homes to be at least 1,150 square feet.
Elsewhere, local officials have used similar zoning tricks to stop apartments, homeless shelters, warming centers, and auxiliary dwelling units — sometimes called ADUs or “granny flats.” Excessive regulations have contributed to a nationwide shortage that has left more than two-thirds of U.S. residents with a “high degree” of concern over housing costs.
Even when projects win approval, community activists can file lawsuits to stop construction — often for bogus, pretextual reasons. One resident invented a “historic parking lot” to delay the expansion of a food bank in Alameda, Calif. The excuse in Troy, N.Y., was a historic stone quarry near the proposed site of an eleven-unit apartment building.
Authors Ezra Klein and Derek Thompson describe this system of “incumbent veto” in their new book, Abundance. They suggest some fixes for the housing shortage, such as reforming zoning laws to make people freer to build. Yet the incumbent veto would remain. As long as people can organize to block housing, they will.
Klein and Thompson lament that navigating the red tape to add housing has never been harder, while suing the government to prevent housing has never been easier. But what about the reverse: suing the government to allow housing?
State and federal constitutions protect the right to use property free from arbitrary government restrictions. Unlike local planning bodies, courts maintain a level of independence from the incumbent veto. This makes constitutional litigation a viable strategy for attacking overregulation.
Chasidy Decker sued Meridan, Idaho, for prohibiting her from living in a tiny home on wheels after she was priced out of the market. Anita Adams sued Seattle for adding a $90,000 “mandatory housing affordability” fee to her backyard project. And Michael and Kellie Ballard sued Santa Clara County, Calif., for ordering the eviction of a young family living in a trailer home at the back of their vineyard.
“There was just no way in the world we were going to throw these people out on the street,” Michael Ballard said.
Tiny House Hand Up filed its own lawsuit in Georgia. Our public interest law firm, the Institute for Justice, represents all these individuals as part of its Zoning Justice Project.
None of them would have had the political clout to overcome the incumbent veto on their own. Government officials listen to power, and regular folks struggling to pay rent don’t have it. Yet by pressing their constitutional rights in court, they can make themselves and others in their communities freer to build what they need.
Winning is not easy. Courts routinely give policymakers latitude to pass and enforce regulations that are “unjust,” “unfair,” “unwise,” “foolish,” and even “stupid.” The idea is to protect the separation of powers. But engaged judges can still rein in the zoning police.
Abundance rightly identifies excessive anti-growth regulations as a driver of the housing crisis. Litigation can help people fight back.
Matt Liles is a litigation fellow and Daryl James is a writer at the Institute for Justice in Arlington, Va.