What would happen if the Supreme Court addresses inclusionary zoning?

A legal case involving zoning in Marin County, California may make it to the Supreme Court.

Back in May, authorities in Marin entered into a new voluntary compliance agreement with the U.S. Department of Housing and Urban Development to build new low-income housing outside areas where black or brown residents make up the majority. This is now the county’s second big push since 2010 to satisfy the government’s demand that it work on desegregating its affordable housing.

Fair housing is a challenge for Marin, an enclave of million-dollar bungalows across the Golden Gate Bridge from San Francisco. According to a nonprofit project called Race Counts, it has the highest racial disparities of any county in California. That’s in part because Marin County doesn’t want to build any housing. Homeowners here are at the forefront of NIMBY efforts to stop plans for new construction, whether they’re local, regional, or statewide.

The county’s iron grip on its land is the backdrop for a case that may soon appear before the U.S. Supreme Court. Back in 2000, two Marin County property owners, Dartmond and Esther Cherk, looked to split their undeveloped land into two single-family-zoned lots. As developers, they were liable to preserve some part of the property for affordable housing or pay into a low-income housing production fund. The fee was nearly $40,000; the Cherks sued.

The Marin County case may test the constitutionality of inclusionary zoning, a tool that local jurisdictions rely on to expand the supply of affordable housing, especially in tight housing markets. The court has expressed an interest in the case, which the justices may wind up using as a wedge to reshape property rights. It’s possible the inclusionary zoning ordinances—and local regulations more broadly construed—will not stand under the court’s scrutiny.

I’m on the record suggesting the Supreme Court would approve inclusionary zoning. While this piece suggests conservatives on the court might be spoiling to affirm property rights, the courts more broadly have helped develop plans to promote more affordable housing (think the Gautreaux case in Chicago or the Mount Laurel decision in New Jersey). Earlier decisions did not eviscerate property rights but they did suggest that the responsibility for housing was wider than a single community and its zoning. Additionally, having developers pay a fee into an affordable housing fund or provide some units of affordable housing as part of the larger project is common practice across American communities.

Beyond just the actions of Marin County and its own housing supply and population composition, the bigger issue is this: if a community or township or county restricts development and/or housing, it puts a bigger burden on other municipalities in the same metropolitan region to provide housing. And if many municipalities refuse certain kinds of development, more affordable housing ends up in a limited number of places that are (1) not necessarily located near jobs and (2) relatively lower-class. Housing is an issue best tackled by a whole metropolitan area (as are other issues including mass transit and transportation). More dispersed outcomes would likely lead to better outcomes across the region with the biggest loss being the communities that cannot easily remain as exclusive as they would like.

 

American laws privileging driving, zoning, and differential effects

A law professor summarizes how American law reinforces driving in multiple ways:

A key player in the story of automobile supremacy is single-family-only zoning, a shadow segregation regime that is now justifiably on the defensive for outlawing duplexes and apartments in huge swaths of the country. Through these and other land-use restrictions—laws that separate residential and commercial areas or require needlessly large yards—zoning rules scatter Americans across distances and highway-like roads that are impractical or dangerous to traverse on foot. The resulting densities are also too low to sustain high-frequency public transit…

As a matter of law, the operating-speed method is exceptional. It enables those who violate the law—speeding motorists—to rewrite it: Speed limits ratchet higher until no more than 15 percent of motorists violate them. The perverse incentives are obvious. Imagine a rule saying that, once 15 percent of Americans acquired an illegal type of machine gun, that weapon would automatically become legal. Other legislation amplifies the harm from this method. In California, for example, cities are sometimes obligated by law to raise speed limits against their will, and local governments are barred from lowering them even for safety reasons. This occurs against a backdrop of radical under-enforcement of the speed limit nationally, and the widespread banning of proven but unpopular lifesaving technologies such as automated speed cameras.

Just as telling as what activities the law regulates is whose interests it seeks to protect. Dozens of our peer nations require carmakers to mitigate harm to pedestrians caused by their products. U.S. design regulations, however, require only measures that enhance the safety of car occupants. Just as SUVs are becoming taller, heavier, and more prevalent—and pedestrian fatalities are surging—U.S. regulators have not required carmakers to embrace those more comprehensive design standards. Instead, they’ve launched campaigns baselessly blaming pedestrians for their own deaths…

In a similar spirit, criminal law has carved out a lesser category uniquely for vehicular manslaughter. Deep down, all of us who drive are afraid of accidentally killing someone and going to jail; this lesser charge was originally envisioned to persuade juries to convict reckless drivers. Yet this accommodation reflects a pattern. Even when a motorist kills someone and is found to have been violating the law while doing so (for example, by running a red light), criminal charges are rarely brought and judges go light. So often do police officers in New York fail to enforce road-safety rules—and illegally park their own vehicles on sidewalks and bike facilities—that specific Twitter accounts are dedicated to each type of misbehavior. Given New York’s lax enforcement record, the Freakonomics podcast described running over pedestrians there as “the perfect crime.”

Several related thoughts after reading the plentiful examples:

  1. The first example provided involved single-family home zoning. Cars and homes are intimately linked in the United States and particularly in the suburbs.
  2. I would be interested to see more discussion of how the legal structures arose alongside the rise of driving in the United States. Was it a back and forth? Did the quick acceptance of driving push the legal system in certain directions or did early legal changes give driving a boost?
  3. The approach of this article reminds me a bit of The Color of Law with the emphasis on the legal system. And the overall argument seems to be that such laws force Americans into driving. But, are there precedent-setting legal cases that could reverse this? Does the legal preference for driving rise to the level of discrimination? A case could be made since driving is expensive and owning a reliable car and driving is related to class which in the United States is also tied to race. Homeownership helps build wealth for certain groups that own but could driving also do the same? Or consider spatial mismatch where jobs and economic opportunities might be hard to access without a significant drive via car.
  4. How might this change with driverless cars and autonomous vehicles? The current system seems to privilege drivers but what if there are not drivers but rather processors, companies, and vehicle owners?

Gautreaux remediation may end soon in Chicago

Filed in the 1960s, decided in the 1970s, and with remediation lasting decades, a case involving a class-action lawsuit charging racial discrimination in public housing in Chicago may end in 2024:

The Chicago Housing Authority and lawyers representing CHA residents have asked U.S. District Judge Marvin Aspen to approve the agreement creating a road map for the CHA to complete its obligations under the so-called Gautreaux litigation.

Under the plan, the nearly 53-year-old case would come to a close by July 2024, marking an end to a landmark chapter in the national civil rights movement.

The settlement agreement provides a detailed timeline for the CHA to complete all planned mixed-income units and strengthen its housing voucher program to better enable families to move to more affluent areas if they choose to do so…

The lawsuit changed the face of public housing by instituting “scattered site” projects built on a small scale and dispersed in neighborhoods throughout the city — a stark contrast to the high-rise buildings constructed in the 1950s and 1960s.

This important lawsuit and ruling has both had significant effects on how policymakers have addressed concentrated poverty (more emphasis on scattering poor residents) as well as likely had limited effects because of the limited number of poor residents who have had and taken advantage of new opportunities to live in wealthier communities.

What is also striking about this is that the era of large-scale public housing and its associations with concentrated poverty are likely over. Hopefully, this does not mean less attention is paid to residential segregation and affordable housing issues but it is easier for the general public to ignore problems that are less visible.

How postwar DuPage County used zoning to limit poorer and non-white residents

I was recently reading the 1976 political science book Poliscide and part of Chapter 8 on the postwar zoning practices of DuPage County caught my attention:

Although no county can place guards at the county line to inspect the socioeconomic and racial characteristics of newcomers, such powers as zoning and control over subdivision and building codes make the county a highly effective arbiter of the types of structures to be built and, hence, the final arbiter of the types of people who will live in its jurisdiction.

For example, DuPage County enacts a subdivision ordinance requiring a developer to retain a large portion of his prospective subdivision for public facilities such as parks and schools; the county combines this with a zoning ordinance requiring single-family dwellings and a large minimum lot size. This effectively prohibits a developer from profitably building anything but high-cost housing not accessible to lower-income persons.

Stringent county building code standards, requiring expensive building materials and high-quality plumbing, wiring, and heating systems, also serve to increase housing costs. The county’s industrial zoning policy restricting heavy industry serves to limit job opportunity for lower-income persons and to prevent a decline in residential property values surrounding an industrial development – which might create housing opportunities for lower-income groups. Moreover, the county’s relations with various financial institutions make it difficult for a developer to secure financing for a project not approved by the county. Indeed, because of the obstacles the county is capable of placing in the path of a developer, the county’s objection may be sufficient to convince a financial institution that investment in a project would be unwise.

The county’s relations with other units of government give it yet another means of influencing the course of residential and industrial development. It is not, for example, an uncommon practice in Illinois for the county forest preserve district to condemn, at the count government’s behest, land on which an unwelcome development is planned…. And courts have made it a point not to intervene. If the acquisition was for a “public purpose,” there is no inclination to examine the underlying motives. (179-180)

And, as the political scientists point out, these were all legal procedures. Local governments, whether at the municipality, township, or county level, often have the power to dictate what can be built on the land over which they have jurisdiction.

At the same time, there have been court cases seeking to reverse these zoning powers. In 1971, DuPage County residents and a local fair-housing group brought suit against the county for exclusionary zoning practices. The Mount Laurel cases in New Jersey led to famous decisions suggesting municipalities cannot completely restrict cheaper housing (even if implementation has been messy).

More broadly, Sonia Hirt argues zoning in the United States serves one primary purpose: single-family homes. When wealthier suburbanites or urban dwellers get the opportunity to live in the homes they want or ones that have plenty of desirable traits, they tend to resist efforts to include cheaper housing nearby. (For a more recent urban case, see Portland.)

To some degree, the plan worked for a while in DuPage County. The authors of Poliscide say the county was the 3rd wealthiest in the nation, businesses were growing, and much of the development was relatively high-end. Yet, things changed over time. In the 2010 Census, DuPage County was the 62nd wealthiest county in the United States. (It would be interesting to analyze what role zoning played in vaulting all those other counties above DuPage County.) In the same census, the white along population was just over 70%. Some of this might be due to how the authors of Poliscide suggest municipalities fought back against the county: they moved to incorporate themselves as well as annex land so that they took over jurisdiction of land and DuPage County had less control over new development.

Recommendations to help with SCOTUS’ innumeracy

In the wake of recent comments about “sociological gobbledygook” and measures of gerrymandering, here are some suggestions for how the Supreme Court can better use statistical evidence:

McGhee, who helped develop the efficiency gap measure, wondered if the court should hire a trusted staff of social scientists to help the justices parse empirical arguments. Levinson, the Texas professor, felt that the problem was a lack of rigorous empirical training at most elite law schools, so the long-term solution would be a change in curriculum. Enos and his coauthors proposed “that courts alter their norms and standards regarding the consideration of statistical evidence”; judges are free to ignore statistical evidence, so perhaps nothing will change unless they take this category of evidence more seriously.

But maybe this allergy to statistical evidence is really a smoke screen — a convenient way to make a decision based on ideology while couching it in terms of practicality.

“I don’t put much stock in the claim that the Supreme Court is afraid of adjudicating partisan gerrymanders because it’s afraid of math,” Daniel Hemel, who teaches law at the University of Chicago, told me. “[Roberts] is very smart and so are the judges who would be adjudicating partisan gerrymandering claims — I’m sure he and they could wrap their minds around the math. The ‘gobbledygook’ argument seems to be masking whatever his real objection might be.”

If there is indeed innumeracy present, the justices would not be alone in this. Many Americans do not receive an education in statistics, let alone have enough training to make sense of the statistics regularly used in academic studies.

At the same time, we might go further than the argument made above: should judges make decisions based on statistics (roughly facts) more than ideology or arguments (roughly interpretation)? Again, many Americans struggle with this: there can be broad empirical patterns or even correlations but some would insist that their own personal experiences do not match these. Should judicial decisions be guided by principles and existing case law or by current statistical realities? The courts are not the only social spheres that struggle with this.

Ongoing zoning controversies with mosques in New Jersey

Two recent zoning cases involving proposed mosques in New Jersey have garnered attention. A quick overview of each.

First, a newly filed federal lawsuit in Bayonne, New Jersey:

The mosque is proposed for an old warehouse at the end of a dead-end street on the city’s east side. The structure, built as a factory, previously housed a chapter of the Hired Guns Motorcycle Club, “made up of sworn law enforcement officers,” according to its website

To build the mosque into the existing space, Bayonne Muslims — the nonprofit organization that owns the space — went to the city in August 2015 to request zoning exemptions. It asked for requirements that a buffer between the existing building and adjacent properties be waived, and that it be able to provide less parking than required.
Ultimately, after three tumultuous public hearings, the proposal failed to gain approval at a March 6 meeting. The vote was 4-3 in favor of the project, but a supermajority — greater than the four votes in favor — was required under state law…
During the public hearings, some opponents expressed concern over the traffic and noise a mosque might bring to their dead-end street. Others cited verses from the Koran they asserted supported violence against non-Muslims.

A New Jersey town will pay an Islamic group $3.25 million to settle a lawsuit over its denial of a permit to build a mosque, the Department of Justice announced Tuesday…

The Islamic Society of Basking Ridge sued Bernards Township, an upscale town in central New Jersey, last year, claiming it changed its zoning ordinances in order to deny the group’s plans. The Justice Department also sued the town last year, alleging it treated the group differently than other religious groups…

Central among those was parking: Township planners had concluded that because Friday afternoon was considered peak worship time, congregants would most likely be arriving straight from work and would each need a parking space.

But a federal judge disagreed, and wrote in a ruling Dec. 31 that the town hadn’t conducted similar assessments of worship habits when churches or synagogues had made applications.

The Justice Department lawsuit also alleged the town changed its zoning laws to require houses of worship in residential districts to be at least 6 acres — larger than the lot the Islamic Society had purchased in 2011.

There are multiple issues at play in these cases:
1. Do municipalities apply the same standards to all religious groups? If not, why do particular groups receive more attention? (The two cases above involve Muslim groups. Do orthodox Jewish groups also receive a lot of attention?)
2. Is it legitimate to deny religious land uses for issues like traffic and parking (common complaints in suburban settings regarding many proposed land use changes)? In other words, are these typical NIMBY complaints or is there something unique about religious buildings?
3. Why are a number of these cases popping up in New Jersey? The state has a long history with exclusionary zoning issues – see the Mt. Laurel doctrine which developed out of a lawsuit. Additionally, it is home to a number of white suburbanites living in suburbs that they would like to preserve or protect.
4. Is the only path to resolution a federal lawsuit? Once such cases reach the level of a federal lawsuit, I would argue the communities have already lost. This is not just because RLUIPA cases tend to be settled in favor of the religious groups. I also imagine such lawsuits can bring negative attention to a community; do they really want to be known as the suburb that refused a certain group to worship there?
(These are not issues isolated to New Jersey. Perhaps there are similar conditions in the Chicago area suburbs. See earlier posts about mosque controversies in the Chicago region including here, here, and here.)

Why Google’s plan to scan every book in the world was halted

Google had plans to scan every book but the project hit some legal bumps along the way and now the company has “a database containing 25-million books and nobody is allowed to read them”:

Google thought that creating a card catalog was protected by “fair use,” the same doctrine of copyright law that lets a scholar excerpt someone’s else’s work in order to talk about it. “A key part of the line between what’s fair use and what’s not is transformation,” Google’s lawyer, David Drummond, has said. “Yes, we’re making a copy when we digitize. But surely the ability to find something because a term appears in a book is not the same thing as reading the book. That’s why Google Books is a different product from the book itself.”…

It’s been estimated that about half the books published between 1923 and 1963 are actually in the public domain—it’s just that no one knows which half. Copyrights back then had to be renewed, and often the rightsholder wouldn’t bother filing the paperwork; if they did, the paperwork could be lost. The cost of figuring out who owns the rights to a given book can end up being greater than the market value of the book itself. “To have people go and research each one of these titles,” Sarnoff said to me, “It’s not just Sisyphean—it’s an impossible task economically.” Most out-of-print books are therefore locked up, if not by copyright then by inconvenience…

What became known as the Google Books Search Amended Settlement Agreement came to 165 pages and more than a dozen appendices. It took two and a half years to hammer out the details. Sarnoff described the negotiations as “four-dimensional chess” between the authors, publishers, libraries, and Google. “Everyone involved,” he said to me, “and I mean everyone—on all sides of this issue—thought that if we were going to get this through, this would be the single most important thing they did in their careers.” Ultimately the deal put Google on the hook for about $125 million, including a one-time $45 million payout to the copyright holders of books it had scanned—something like $60 per book—along with $15.5 million in legal fees to the publishers, $30 million to the authors, and $34.5 million toward creating the Registry….

This objection got the attention of the Justice Department, in particular the Antitrust division, who began investigating the settlement. In a statement filed with the court, the DOJ argued that the settlement would give Google a de facto monopoly on out-of-print books. That’s because for Google’s competitors to get the same rights to those books, they’d basically have to go through the exact same bizarre process: scan them en masse, get sued in a class action, and try to settle. “Even if there were reason to think history could repeat itself in this unlikely fashion,” the DOJ wrote, “it would scarcely be sound policy to encourage deliberate copyright violations and additional litigation.”

Out-of-print books with uncertain copyright status scuttle what could be one of the great treasure troves of information? This suggests we still have a ways to go until we have legal structures that can deal with the information-rich and easily accessible online realm. If a deal could eventually be worked out for books, what about older music, art, and other cultural works?

A related thought: having all those books available might indeed change the academic enterprise in several ways. First, we could easily access more sources of data. Second, we could potentially cite many more sources.