New Article on “The State Constitutional Case Against Exclusionary Zoning”

My new article, “The Constitutional Case Against Exclusionary Zoning” (coauthored with Josh Braver) is now up on SSRN, available for free download. It will soon be submitted to law reviews! Here is the abstract:

Exclusionary zoning is the biggest cause of the housing crisis besetting many parts of the United States. This Article shows how state constitutions can be used to combat it through two complementary paths: litigation under existing constitutional provisions and constitutional amendment. It provides the first comprehensive account of state constitutional jurisprudence on exclusionary zoning across all fifty states. It finds that state courts have rarely imposed meaningful limits, but uses this body of law as a foundation for expanding constitutional protection.

Most state courts have interpreted their takings clauses in lockstep with federal doctrine, including the highly deferential Penn Central test. New York, Pennsylvania, and New Jersey have developed more aggressive approaches. But their equivocal results have led many scholars to conclude that courts have little useful role to play.

We reject that conclusion. We identify two effective and judicially administrable approaches grounded in state takings and due process doctrine. The Article also proposes state constitutional amendments that would require compensation for exclusionary zoning, categorically prohibit specified exclusionary practices, or adopt more limited reforms. Together, litigation and amendment offer a practical state constitutional strategy for addressing exclusionary zoning.

This article builds on our earlier coauthored work, “The Constitutional Case Against Exclusionary Zoning,” published in the Texas Law Review (we also published a shorter,  nonacademic version in the Atlantic). There, we make the case that most exclusionary zoning violates the Takings Clause of the Fifth Amendment. We hope that federal courts will eventually adopt that view. But state constitutional law can be used to address the problem more swiftly, and states need not wait for federal courts to act.

Josh a progressive living constitutionalist, while I am a libertarian originalist. But we agree on this crucial issue. And we hope others might, as well.