What it might take for the Supreme Court to limit exclusionary zoning

Two law professors argue that the Supreme Court could utilize the Fifth Amendment to make exclusionary zoning less common:

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No one simple solution to this problem exists. But a crucial tool may lie in the Constitution: the takings clause of the Fifth Amendment. The clause requires that, when the government takes “private property,” it must pay “just compensation” (usually the fair market value of the property rights taken). As we argue in a forthcoming Texas Law Review article, because exclusionary zoning severely restricts property owners’ right to use their land, we believe that it qualifies as such a taking, and is therefore unconstitutional unless the government pays compensation. Consistent enforcement of this interpretation would severely constrain exclusionary zoning, limiting it to cases where policy makers believe the benefits are worth the costs of paying compensation—and where they have the resources to do so.

Here is what the authors conclude with regarding what would be required to lead to a Supreme Court decision:

Historically, successful constitutional-reform movements have combined legal and political action, and have not relied on one to the exclusion of the other. That was true for the civil-rights movement, the women’s-rights movement, advocates of same-sex marriage, gun-rights advocates, and others. The cross-ideological YIMBY movement should do the same.

What steps might this involve? Some thoughts:

  1. At least several states make significant shifts at the state level.
  2. Sustained political and judicial attention to the issue of exclusionary zoning (competing with other issues that attract more attention).
  3. At least one, if not a few, compelling cases where making such a ruling makes sense given the parties involved and local and historical circumstances.
  4. Public support for a change to exclusionary zoning. I do not know where polling stands on this issue or even if the public is asked about this issue.
  5. Coordinated advocacy efforts across organizations and locations.
  6. Different members of the Supreme Court?

I have argued before that it is difficult to address housing at the national level in the United States. That does not mean laws and policies cannot change but it will require a lot of effort.

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