A Search for Common Ground, Part 1: Ending Exclusionary Zoning
A Search for Common Ground, Part 1: Ending Exclusionary Zoning
Removing restrictive land use regulations aligns with the societal goals of progressives, traditional conservatives, and small "l" libertarians.
In today's increasingly polarized world, finding common ground between the left and right may seem elusive. I see it happen often in Nashville, especially as the city continues to shell out more taxpayer money for NFL stadiums and NASCAR tracks. Both sides of the political spectrum, while driven by different motives and underlying values, share a common aversion to such frivolous spending — the right objects to wastefulness, while the left resents handouts to billionaires. To add more ammo, the breadth of academic research finds no economic benefits to subsidizing sports stadiums or events.
This issue serves as a powerful example of how empirical research and aligning values can bridge ideological divides, fostering unity on vital policy matters. Despite such coalitions, formidable obstacles stand in the way of meaningful change. Politicians who want to cement their legacy on the city (i.e., Nashville Mayor John Cooper’s backing of a Titans stadium deal), business interests like local chambers of commerce, and other benefactors wield enough persuasive force to keep Nashville, and cities like it, footing the bill for millions of dollars in support of professional sports teams.
Still, it’s on issues like this — those that break partisan and ideological barriers and align with compelling evidence — where we could actually see meaningful changes by combining forces on both a local and national level.
In this series of essays, I aim to explore issues that could have broader appeal among the left, right, libertarians, and centrists on multiple fronts — from economic and philosophical perspectives to constitutional considerations and beyond. And I will also argue that by setting aside our partisan and ideological differences on other topics and rallying around these common issues, we possess the potential to catalyze profound and meaningful social change.
Some Background
I started considering this concept after reading a piece by Ilya Somin, a law professor who focuses on constitutional law and a scholar at the libertarian Cato Institute. Somin’s piece, titled “Three Constitutional Issues Libertarians Should Make Their Own,” argues that libertarians should focus on three constitutional issues that have gone “largely ignored” and would provide “valuable opportunities to expand liberty: zoning, constitutional constraints on immigration restrictions, and racial profiling in law enforcement.”
But what struck me about the issues Somin chose to focus on is that they have traditionally been associated with progressive activism, or at least align with policy goals that many on the left advocate. Somin's central appeal to libertarians is rooted in the argument that immigration restrictions, exclusionary zoning, and racial profiling infringe upon individual liberty and constitutional rights. Progressives, on the other hand, may oppose these policies for reasons such as reducing economic inequality. Nevertheless, both sides converge on the same policy conclusions.
By discussing policy solutions that may appeal to multiple ideological values, I hope to find similar common ground.
Policy Solution #1: Ending Exclusionary Zoning
As the U.S. grapples with a deepening affordable housing crisis, YIMBY (Yes-In-My-Backyard) Groups have sprouted around the country to advocate for major reforms to the exclusionary zoning practices prevalent in most major cities. These zoning policies often prioritize single-family homes and hinder the construction of more affordable housing options for low- and middle-income residents. A 2022 paper by Jonathan Levine describes the YIMBY movement as “a loose and shifting pro-housing alliance of renters, progressives, and libertarians who hold that exclusionary land-use policies in urban and suburban areas exacerbate housing unaffordability and racial segregation and increase long-distance commuting and greenhouse-gas emissions.”
These coalitions primarily focus on zoning reform within local or metropolitan jurisdictions, where traditional party and ideological lines blur, and national culture wars have a limited reach, allowing people from diverse political backgrounds to unite in this cause. After all, the YIMBY movement's overarching goal—to create an affordable place for everyone to live — is challenging to argue against, regardless of one's ideological perspective.
However, despite the undeniable merits of ending exclusionary zoning, the path forward has not been so simple. Misconceptions about increasing housing density persist and surface at zoning hearings in nearly every city, voiced by concerned residents and NIMBY (Not-In-My-Backyard) groups. Their concerns range from traffic congestion to potential overcrowding in schools and the perceived threats of crime to "community character."
Moreover, entrenched interests stand in the way of progress, benefiting from the current zoning schemes. This includes landowners and homeowners worried about their property values, as well as local public officials who cling to outdated beliefs that cities must rigidly manage growth through complex planning.
One important caveat: when we talk about ending exclusionary zoning, this is not a proposal to tear down single-family homes or to replace them all with apartments or “tall skinnies” (which are mostly single-family homes). Instead, advocates support making it easier to build a variety of forms of housing — from duplexes and quadruplexes to townhomes and condos to accessory dwelling units (ADUs) like mother-in-law suites. These proposals go in tandem with other reforms like reducing or ending minimum parking requirements and minimum lot sizes, both of which would increase the availability of land for housing.
Ideological Concerns about Density
Ideological and partisan apprehensions about increased housing density cut across the spectrum of political affiliations. Conservatives, for instance, worry about increased crime rates and limited space to raise families. A poll by Pew Research found that conservatives preferred areas where “houses are larger and farther apart, but schools, stores, and restaurants are several miles away.” Consequently, they might resist the construction of multi-family housing, viewing it as a means to preserve the cultural identity and character of their neighborhoods.
Progressives, on the other hand, tend to support the idea of constructing more affordable housing, yet they may oppose ending exclusionary zoning due to fears of displacing low-income residents and communities of color or triggering gentrification. Others oppose higher density due to potentially negative environmental impacts. They may also argue that policies like inclusionary zoning mandates or rent control would be more effective in ensuring affordability.
While libertarians are more inclined to support ending exclusionary zoning, viewing it as interfering with property rights and the free market, a small group of libertarians contends that it would actually be a violation of property rights to end single-family zoning. The Reason Foundation’s Robert Poole argues:
“To abolish single-family zoning is a violation of the contract between a municipality and its single-family homeowners. They selected the neighborhood and the house based on the protections offered by prevailing zoning.”
The Economic Case
Before addressing these concerns, I would like to present some compelling evidence showcasing the economic benefits of these reforms. Economists from across the political spectrum agree that removing exclusionary zoning barriers is the best way to create more affordable housing. In March 2023, Zillow conducted a poll of 117 housing market experts and economists and found that 73 percent ranked zoning reform as “one of the most effective means to address affordability.”
The economic repercussions of exclusionary zoning are far-reaching. Economists have found that by artificially decreasing the supply of housing, these zoning practices inflate housing prices, slow labor flows into highly productive cities, rob us of economic growth, and worsen income inequality.
Research by economists Peter Ganong and Daniel Shoag from Harvard University shows that strict land use regulations in high-productivity cities led to above-average increases in housing prices, widening income inequality and discouraging population flows to high-income areas.
Moreover, a 2019 study by Chang-Tai Hsieh (University of Chicago) and Enrico Moretti (University of California, Berkeley) estimated that relaxing land use restrictions in New York, San Jose, and San Fransisco — three of the most highly productive cities in the U.S. with some of the strictest zoning laws — could have increased aggregate growth by 36.3 percent from 1964 to 2009, boosting U.S. GDP by 3.7 percent in 2009. This would have resulted in an additional $3,685 in annual wages for the average American.
Ending exclusionary zoning presents an “easy button” for stimulating the economy. If major cities across the country embraced more liberal land use regulations, we could potentially see huge and immediate gains in productivity and growth as well as upward mobility for low-income workers. More people would be able to afford to move to cities offering higher wages, reduced commuting times, and increased job opportunities.
This policy proposal should appeal to conservatives (not necessarily MAGA Republicans, but traditional conservatives) and libertarians alike, as it involves removing restrictive government regulations and unleashing the free market to enable housing supply to meet actual demand. Progressives can also tout this reform as a means to reduce income inequality while providing more opportunities for low-income and working-class individuals in their communities.
The Progressive Case
For the left, liberalizing land use regulations offers numerous upsides, especially concerning income and racial equality. Restrictive zoning perpetuates class and racial segregation in the U.S., intensifying wealth inequality by driving up home values for existing homeowners while inflating rents and housing costs for the least well-off among us.
This leads to a fragmented and stratified community. A paper by Jonathan T. Rothwell (Brookings Institution) and Douglas S. Massey (Princeton University) concludes that “[m]etropolitan areas with suburbs that restrict the density of residential construction are more segregated on the basis of income than those with more permissive density zoning regimes.”
Considering the strong link between income and race, another study by Rothwell finds that liberalizing zoning laws “would reduce the equilibrium gap between the most and least [racially] segregated Metropolitan Statistical Areas by at least 35%.”
Moreover, restrictive zoning policies exacerbate homelessness, as the low housing supply drives up housing costs, making it increasingly unaffordable for vulnerable populations.
Embracing a diverse array of multi-family housing options also offers significant environmental benefits. If cities have enough density to support walking, biking, or public transit, more people can access basic goods and services without driving a car. If more people can live in major cities, that’s fewer cars on the road, less traffic, and fewer emissions. Density also decreases the need for sprawl and the conversion of natural land further away. Cities just require less space.
In Green Metropolis, David Owen reports that the average New Yorker consumes less energy, gasoline and land, generating fewer greenhouse gas emissions annually than “residents of any other American city, and less than 30 percent of the national average.”
Relatedly, minimum parking requirements mandate that new developments provide a certain number of parking spaces. These requirements artificially reduce the supply of housing and prioritize cars over housing, perpetuating car-centric lifestyles. Furthermore, zoning rules for single-family homes, such as minimum lot sizes and setback requirements, leave land underused and contribute to environmentally harmful practices like excessive water use, fertilization, and pesticide application to manage large and unnecessary lawns. The bottom line is that sprawl is bad for the environment, while density is very good.
One of the most common concerns raised by progressives about zoning reform is the displacement of current residents. But research shows that an increase in private development is associated with less displacement. That’s because increasing the supply of housing slows the growth of housing costs and rents, making it easier for low-income households to remain in their homes.
For those still concerned about displacement, there are things that cities can do to incentivize affordable housing units for low-income residents within new developments. The key is to provide financial incentives to developers rather than punish them. Things like inclusionary zoning requirements have mixed results at best, and can even lead to new construction being built away from areas that mandate affordable housing.
Instead, as urban development expert M. Nolan Gray argues, “cities should put their money where their mouth is, offering financial incentives — such as exemptions from impact fees, property tax relief, or expedited permitting — commensurate to the number of new income-restricted units that developers agree to include in new buildings.” In other words, if we want affordable housing units included in new developments, we should subsidize it, not mandate it.
While acknowledging the tradeoffs inherent in any policy, the substantial benefits that ending exclusionary zoning offers to low-income individuals should not be dismissed merely because a small subset may experience short-term challenges. Mitigating these effects can be achieved through other policy tools, ensuring a more equitable and inclusive society for all.
The Libertarian Case
Note that when I discuss libertarians, I am mostly referring to classical liberals and not the alt-right faction that currently controls the Libertarian Party. As such, the libertarian case for ending exclusionary zoning comes down to property rights. Homeowners, landowners, and developers should be able to build whatever type of housing they want on the property they own. Now, that’s a very basic understanding of how property rights work and there are obviously a ton of caveats.
Most libertarians support rules to prevent negative externalities, including ordinances or covenants that prohibit people from building a loud or pollution-emitting factory in the middle of a residential neighborhood. They also generally support things like homeowners associations (HOAs), or voluntary agreements among homeowners to set particular rules about what you can do with your property to maintain harmony within a neighborhood. (There are obviously issues with HOAs and their propensity to push for exclusionary zoning, but that is another piece.)
But if there are no voluntarily-established rules prohibiting you, the underlying libertarian principle is that you should be able to build a duplex, triplex, or an ADU on the property you own.
Now, what about the objection from some libertarians, mentioned above, that property owners who purchased a home in an area zoned for single-family homes had an implicit agreement and accepted such restrictions to protect themselves from unwanted density? In other words, zoning restrictions are a kind of “contract between a municipality and its single-family homeowners.”
As Ilya Somin argues in response to this, this interpretation misunderstands what a contract is:
A true contract arises through the voluntary agreement of the parties. By contrast, zoning restrictions are imposed by governments on all property owners in a given area, regardless of whether they agree to it or not.
It is true that, after the initial coercive imposition of zoning, some of those who buy property in the area may do so in part because they like the restrictions. But if that qualifies as a "contract" that future government policy is morally bound to respect, the same goes for virtually any other type of coercive government policy that some people have come to rely on.
We could equally say that protectionism is a "contract" between the government and protected industries. After all, many investors and workers may have "selected" that industry "based on the protections offered by prevailing" trade restrictions. Similarly, abolishing racial segregation violated the "contract" between the government and white racists who "selected" segregated neighborhoods "based on the protections offered by prevailing" segregation laws.
The difference between exclusionary zoning and private land-use restrictions like HOAs is that the latter is actually a voluntary contract, Somin explains.
From a libertarian standpoint, the benefits of ending exclusionary zoning are multifaceted. It aligns with the principle of minimizing government intervention and allowing the free market to determine the housing supply. Utilitarian libertarians may support liberalizing land-use regulations due to the significant economic benefits discussed earlier.
For Constitutionalist libertarians, here is an excerpt of Somin’s constitutional case for ending exclusionary zoning:
Since the Supreme Court’s 1926 decision in Village of Euclid v. Ambler Realty Co., which upheld zoning against constitutional challenges, and later rulings building on it, conventional wisdom has been that there is no strong legal case against the practice.
But Euclid was a terribly flawed decision. Among other things, the majority ignored the fact that the property rights protected by the takings clause of the Fifth Amendment (which requires the government to pay “just compensation” when it takes private property) include a right to use the property as the owner sees fit, not merely the right to prevent others from physically occupying the land or seizing formal ownership. That is in accordance with Founding‐era understandings of natural property rights and much 19th century jurisprudence. If the government severely restricts use rights, ownership becomes little more than a hollow shell.
The right to use could traditionally be limited by the “police power”—the government’s authority to protect public health and safety. But much exclusionary zoning goes far beyond anything that can be justified on that basis. In recent years, the Supreme Court has shown a willingness to strengthen constitutional protections under the takings clause, in the process repudiating or modifying long‐standing precedent. A well‐developed litigation effort could lead the Court to narrow or overrule Euclid, as well. libertarian organizations with extensive experience in property rights issues are well positioned to undertake such a campaign.
Moreover, for libertarians who may worry that ending exclusionary zoning would hinder those who desire suburban living, there are still other ways societies have found voluntary solutions. In Houston, a city that does not have single-family zoning, communities can enter into voluntary agreements among property owners and homeowners called deed restrictions, which regulate how they can and cannot use their land. These rules are tied to the deed, meaning that property owners must agree to them as a condition of their purchase.
A system that allows deed restrictions but prohibits single-family zoning preserves property owners' rights while avoiding arbitrary restrictions imposed by local governments.
The Conservative Case
Conservatives might be the hardest to sell on this policy change, especially given the state of modern conservatism. Nothing I say is likely going to appeal to certain MAGA Republicans who are already wary of elites and big cities, and who believe our cities are hellscapes of crime and debauchery. But there are several reasons I believe traditional conservatives could get on board with ending exclusionary zoning.
Especially on the state level, Republicans are beginning to come around to the idea of zoning reform, and for good reason. Constitutionalist conservatives should largely agree with the arguments above regarding property rights. Surely, conservatives who wave “Don’t Tread on Me” flags should also agree that the government shouldn’t be allowed to tell you that you can’t convert your detached garage into an apartment for your mother-in-law. Free-market or pro-business conservatives should appreciate any idea that removes unnecessary government regulation.
Many traditional conservatives also embrace the concept of personal responsibility, or the ideal of self-built, self-reliant individuals. But if owning a home is one’s end goal and a measure of self-reliance, that dream is becoming further out of reach for many. If housing costs eat up a large share of someone’s income, saving for a home and building wealth becomes out of reach. Building more multi-family housing in a city increases the supply of affordable options, lowers housing costs as a share of expenses, and gives more people a shot at the American Dream.
There is also a school choice aspect involved with zoning reform. Many conservatives argue that government education dollars should follow students to allow them to attend schools outside of their school district or private schools to create competition and improve educational outcomes. This policy, they argue, would allow students who live in low-income neighborhoods to attend schools with more resources.
But it’s exclusionary zoning that creates this situation in the first place. The best public schools are located in expensive areas that have priced out low-income families due to restrictive zoning. In areas with more restrictive zoning, there are greater gaps in test scores and outcomes. Fighting to make more housing types accessible to low- and middle-income families would mean more school choices for everyone.
At Nashville’s own Vanderbilt University Law School, there are a group of academics who I would call zoning conservatives, who advocate for maintaining the status quo on land-use policies. In a law review article called “A Case for Zoning,” Christopher Serkin contends that zoning “does not prevent change but instead regulates the pace of change.” Who determines what constitutes an appropriate “pace of change,” Serkin doesn’t say.
And according to scholar Robert Ellickson, that “change” doesn’t really happen at all. Instead, exclusionary zoning freezes neighborhoods and rarely allows for more density. In his critique of Serkin’s article, David Schleicher of Yale Law School argues that under single-family zoning regimes, “[h]omeowners are not merely limiting the pace of change but wholly averting it, stopping redevelopment and growth altogether.”
This deprives neighborhoods of the many community benefits that come with permitting more multi-family homes, including new customers for small businesses and an increased labor supply to fill jobs. Renters also improve community involvement and participation. A policy paper from Joint Center for Housing Studies at Harvard showed that renters are more likely to socialize with neighbors and participate in community organizations.
For conservatives who believe that exclusionary zoning helps preserve and maintain historical and traditional suburban lifestyles in cities, it’s important to remember that zoning is a top-down approach, subject to the arbitrary whims of planning boards and public officials. Single-family homeowners often become entrenched interests who will petition their representatives to preserve and expand exclusionary zoning to protect their property values, even in areas where this doesn't make practical sense. This will lead to fewer homes being built to keep up with demand and inflated prices. If conservatives want to preserve areas for single-family zoning, they should organize with fellow neighbors to create deed restrictions like in Houston and keep other areas of the city open to mixed development types.
When it comes to worries about increased crime, multi-family housing is not the cause. A study of Irving, Texas found that “high density and multi-family development are not necessarily associated with high crime rate, but socioeconomic status is.” Another study of Anchorage, Alaska similarly found “no relationship between housing density and delinquency.” Embracing higher-density housing while addressing socioeconomic disparities could contribute to safer and more vibrant communities.
Final Thoughts
While it's impossible to address every concern regarding ending exclusionary zoning, the policy offers a plethora of societal outcomes appealing to individuals across the political spectrum. By promoting affordable housing, economic growth, social inclusion, and environmental sustainability, this reform has the potential to unite diverse perspectives, transcending partisan differences and fostering a better world for all. The removal of exclusionary zoning represents a compelling opportunity to advance shared values and interests, establishing a more equitable and inclusive society for generations to come.
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