Glaeser outlines a strong case for limiting zoning. He also argues – correctly, in my view – that state governments are better position to address the problem than either the federal government or localities. He recognizes, however, that reform efforts will be difficult, because of strong interest group opposition, and lack of public awareness of the impact of zoning on housing and job opportunities.
I would add that reformers should challenge zoning regulations in court, as well as in the political arena. The Supreme Court’s 1926 decision in Euclid v. Ambler Realty has long been interpreted to block nearly all constitutional challenges to zoning regulations under the Takings Clause, even though many take away major aspects of owners’ property rights. But that doctrine is logically dubious, and in tension with recent cases strengthening Takings Clause protection for property owners against other types of regulations.
If a regulation can be a taking when it blocks development by forcing owners to subsidize construction elsewhere or by flooding or damaging the property in question, it is not clear why it cannot be if much of the value of the land is destroyed by categorically banning or severely restricting housing construction. In each case, the owner loses important rights traditionally associated with ownership, and the value of the property is greatly diminished. There is no basis in the text or original meaning of the Constitution for treating zoning restrictions differently from other land-use regulations with similar effects on property owners’ rights.
If courts rule that severe zoning restrictions on building qualify as takings, that would not automatically prevent cities from enacting them. But it would require them to compensate landowners for their losses, which would help deter restrictive zoning by cities reluctant to spend large amounts of money to do it.
While it is unlikely that Euclid will be overruled anytime soon, it is possible that federal courts might restrict its reach. Similar results might be achieved under state constitutional takings clauses in many jurisdictions. State courts sometimes protect property rights (and other rights) under their state constitutions more strongly than is required by the federal Supreme Court’s interpretation of the federal Constitution.
The odds of success would increase if the effort attracts support on both sides of the political spectrum. Increasing left-wing recognition of the dangers of zoning might lead some on the left to rethink the constitutional issues here, just as happened in the similar case of economic development takings, where many on the left opposed the Supreme Court’s Kelo decision in large part because the sorts of condemnations it authorizes disproportionately harm the poor and minorities. The same is true of restrictive zoning, perhaps to an even greater extent.
Judicial review is unlikely to be the sole or even the most important tool in the struggle to reform zoning. But, as in many other situations, reform movements may have a better chance of success if they rely on a combination of legal and political action, rather than either alone. The civil rights movement, the feminist movement, same-sex marriage, the gun rights movement, and previous efforts to strengthen protection for property rights are all relevant examples.