Tag Archives: exclusionary zoning

How a suburban school district could “attract the right families…while keeping the wrong families out”

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The suburban case studies in the 2024 book Disillusioned include one wealthier community trying to boost its status and avoid decline. Here is one way they tried to insure this in their local schools:

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For the plan to work, the district would have to attract the right families into Lovejoy while keeping the wrong families out. Hoping to gauge the possibility of threading that needle, the Lovejoy board hired a demographic firm to run some analyses. First, they took aerial photographs of the district’s 17-square-mile attendance zone, counting the number of roofs versus available lots to ascertain likely development trends. Then, the firm analyzed census data and conducted interviews with local real estate agents, landowners, and developers to predict the household incomes and education levels of future residents. In their final report, the demographers projected that Lovejoy’s enrollment would by 8 or 9 percent a year for the next decade, enough to support a midsize high school. And just as important, they expected that the local poverty rate would remain extremely low, allowing the towns to maintain what local leaders liked to call “quality growth.” Elated, Lovejoy leaders began assuring prospective homeowners that their new high school would never look anything like its gargantuan counterpart in Allen. (202-203)

Growth is good in suburbs as it brings status and additional revenue.

But suburban communities often are looking for particular kinds of growth and certain residents. Here, “quality growth” means higher-income residents in larger new houses. The community does not want residents who are below the poverty line. And they then can run particular programs in their local schools aimed at high levels of academic performance, which will also boost their status. Good schools are not just about student learning; for numerous suburbanites, they serve as proxies for the overall quality of life.

Through planning and zoning, the suburb will have effectively decided who will live in the community and attend the local schools. They may pay for this down the road – the argument of the book is that the suburbs are a Ponzi scheme that pass along the costs to future residents who have fewer resources to meet the costs – but the short-term benefits look good for local leaders and residents.

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

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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.

The arguments for and against banning zoning for only single-family homes

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The single-family home is very important in the United States and this is enshrined in land use policy and zoning. Because of this, there is a move in multiple communities to ban single-family home zoning and this has prompted debate over the change:

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Originally introduced in Berkeley, Calif., in 1916 as a means of preventing a black-owned dance hall from opening, single-family zoning became increasingly popular — though divorced from its explicitly racist origins — as more Amercans moved to sprawling suburban cities across the country. Today, many of the country’s major urban areas reserve 75 percent or more of their residential land exclusively for stand-alone, one-family homes.

Recently, lawmakers in blue states and cities have moved to roll back zoning rules in hopes of spurring more development. Minneapolis became the first major city to ban single-family zoning in 2019. That same year, Oregon passed a similar law statewide. Perhaps the most significant change came in California where the median home price is estimated to exceed $800,000. A new law that eliminates single-family zoning across the entire state went into effect on Jan. 1. None of these reforms make it illegal or even more difficult to build a stand-alone house, they simply remove barriers that prevent any other type of dwelling from being built.

Advocates for eliminating single-family zoning say it’s the most important step toward addressing the housing shortage, since any other programs to spur more development would be moot if there’s no land to legally build on. Supporters say eliminating what they often refer to exclusionary zoning would have wide-ranging benefits beyond just creating more housing stock, including reducing racial segregation and closing the racial wealth gap, boosting job opportunities in urban areas and reducing climate impacts created by suburban sprawl.

Many conservative opponents of these reforms, including former President Donald Trump, have portrayed them as a “war on the suburbs” that would bring big-city problems to quiet communities while doing little to address the underlying causes of the housing shortage. Some argue that financial incentives, not coercive new laws, are the best way to spur development.

A lot of pro-housing advocates also have doubts about how much of an impact zoning reforms on their own will make. They argue that most of the new laws are riddled with exceptions that limit their scope and few also address the long list of other ways that local governments can prevent dense housing from being built — like minimum lot sizes and parking requirements. Some on the left make the case that the only way to increase housing supply at the pace that’s necessary is through strict mandates that require cities to build a certain number of housing units and impose heavy financial penalties on those that don’t.

This would be a hard change to make and capitalize on in many communities. Housing policy in the United States is difficult to change and is rooted in a long history, cultural narratives about success, exclusionary practices, and local governments and other government actors. Yet, even discussion of such a change at least highlights the need in many places to think more about housing and how it could be more accessible to many.

As about any policy possibilities in the United States, I now wonder if what would work best in this situation is for several different kinds of communities across the country to ban single-family zoning and see what happens. What changes in the community? How do residents and newcomers experience it? How does it affect housing values? Does it significantly alter the character of the community? And if there are success stories – which could range from limited noticeable change (that it does not lead to negative outcomes or the end of the suburbs might be good enough) to positive outcomes – then other communities could observe and consider the option.

“Dream Hoarders” in exclusive locations

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The 2018 book Dream Hoarders connects the actions of the top 20% in income to where they live and how they control who lives near them. Excerpts from the book:

https://www.brookings.edu/book/dream-hoarders/

The physical segregation of the upper middle class noted in chapter 2 is, for the most part, not the result of the free workings of the housing market. This inverse ghettoization is a product of a complex web of local rules and regulations regarding the use of land. The rise of “exclusionary zoning,” designed to protect the home values, schools, and neighborhoods of the affluent, has badly distorted the American property market. As Lee Anne Fennell points out, these rules have become “a central organizing feature in American metropolitan life.” (102)

Zoning ordinances, which began life as explicitly racist tools, have become important mechanisms for incorporating class divisions into urban physical geographies. This is not a partisan point. If anything, zoning is more exclusionary in liberal cities. (103)

So, those of us with high earnings are able to convert our income into wealth through the housing market, with assistance from the tax code. We then become highly defensive – almost paranoid – about the value of our property and turn to local policies, especially exclusionary zoning ordinances, to fend off any encroachment by lower-income citizens and even the slightest risk to the desirability of our neighborhoods. These exclusionary processes rarely require us to confront public criticism or judgment. They take place quietly and politely in municipal offices and usually simply require us to defend the status quo. (106)

There are numerous connections in this section to earlier posts. Here are a few:

–One of the reasons Americans love suburbs is that suburban life allowed for excluding people they do not want to live near.

–There is bipartisan white suburban support for homes rather than apartments.

-Housing rarely comes up in national political conversations. It may get a few minutes at debates or occasionally come up in trying to appeal to some voters.

-Tackling this at the state (example of California) or local level is difficult (example of Naperville, Illinois and suburban New Jersey).

In sum, it is hard to understand the life of wealthier Americans without also addressing how this wealth and the opportunities that come with it are closely connected to particular locations.

Bipartisan white suburban support for fewer apartments, more homes

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A political scientist shares research findings on how political views affect suburban support or opposition to different kinds of development:

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As a political scientist who has studied local land-use regulations, I’m surprised to see a national political campaign in 2020 place such an emphasis on the issue—which hasn’t figured much in presidential races in half a century. The Trump campaign isn’t wrong to think that white suburban voters—the obvious target of the McCloskeys’ speech—would oppose apartment construction in their neighborhoods. In a nationally representative survey of metropolitan areas that I conducted last year, a substantial majority of homeowners revealed a strong preference for single-family development and opposition to apartments. They also overwhelmingly agreed that residents of a community should get a vote on what is built there…

And yet the history of exclusionary zoning reveals that it has long been a bipartisan activity. Obama’s Affirmatively Furthering Fair Housing rule was the first major action taken by any presidential administration to enforce the 1968 Fair Housing Act, which despite its lofty promises has not resulted in an integrated America. During the 1976 presidential campaign, Jimmy Carter assured voters that he was not “going to use the federal government’s authority deliberately to circumvent the natural inclination of people to live in ethnically homogenous neighborhoods.”

My survey data revealed no significant difference between white Republican and white Democratic homeowners in their opposition to high-density housing. I also found overwhelming agreement that apartment complexes would increase crime rates, decrease school quality, lower property values, and degrade the desirability of a neighborhood…

What this means is that Trump’s approach could conceivably appeal to white suburbanites more broadly, not just Republicans. And yet the evidence suggests that this is unlikely. Most white Democrats support the development of affordable and subsidized housing in the abstract and will feel comfortable rejecting Trump’s similarly abstract opposition to it. Where white Democrats oppose such development is when it arrives in their own backyards. But they do not need Trump to block it.

The Americans suburbs are based around single-family homes, exclusion, and local control (in addition to other factors). Opposition to apartments can be about both changes in aesthetics and character of a suburb and the kinds of people who are assumed to live in apartments.

But, as is hinted above, the real battleground over apartments and affordable housing and residential segregation really is about the local level. Federal or state guidelines could require certain things for municipalities. This is the first line of defense for those opposed to housing or any other development they do not desire. And these are abstract levels of government until local development pressure starts up. Even if such regulations passed, where exactly apartments might be located, in what scale and with what design, and how local residents and officials respond is the real pressure point.

If I am interpreting the last paragraph cited above correctly, white suburbanites in general will mobilize to oppose local development they do not want. This can have multiple effects: (1) it stops apartments and affordable housing from being built; (2) it can push such development into communities that are less able to mobilize or where there is already cheaper housing; and (3) it can create long-standing tensions between community members and prospective residents. In the long run, it means that some of the same patterns that suburbanites might criticize in big cities – uneven development, residential segregation – are replicated in suburbs.

Martin Luther King, atomic energy, open housing, and DuPage County

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In 1967, the federal government had selected a site in southwestern DuPage County, Illinois, on the land of the small community of Weston, for a new National Atomic Laboratory. Dozens of locales across the country had applied, including places with existing concentrations of physics facilities and scientists. As the government worked to confirm and develop the site, in June 1967 protestors marched to Weston against the selection of the site because of open housing problems in nearby communities and the State of Illinois. Connected to the marchers? Martin Luther King, Jr.

The DuPage County site came through an interesting political process (see the book Fermilab: Physics, the Frontier, and Megascience) and the selection offered an opportunity for civil rights activists to pressure the state of Illinois and local governments, particularly in light of the lack of change after the Chicago Freedom Movement and Martin Luther King’s protests in Chicago in 1966. (See, for example, the subsequent push for open housing in nearby Naperville as detailed by Ann Durkin Keating in “Behind the Suburban Curtain.”)

King announced a rally for June 1967. Organizers talked of a “tent-in” and marchers had plans to walk from a nearby religious retreat center in Warrenville (where the Chicago Tribune reported they faced hecklers) to the Weston site. According to the Tribune, King made a short visit to the tented protestors on June 23:

Dr. King, a leader of the Chicago Freedom movement which is sponsoring the “tent-in,” spoke to the dozen campers and a battery of newsmen and called the Weston protest a necessity to keep civil rights alive.

Asked by newsmen if he was losing support for his civil rights programs, King said:

“I don’t know how much support we are losing, but I will say the vast majority of white Americans are against us. We hope the government will hear our pleas and our cries.”…

Dr. King spent about 15 minutes with the campers, who had pitched their tents Thursday afternoon in an effort to urge Congress not to approve the Atomic Energy commission’s request for the Weston accelerator.

The Chicago Tribune ran a small article on June 25 summarizing the march:

An estimated 350 civil rights demonstrators marched without incident yesterday into west suburban Weston to protest the Atomic Energy commission’s decision to build a proton accelerator there…

In Weston, Raby and McGermott addressed the crowd from a sound truck. “We are beginning to see the end of the 1964 civil rights act,” said Raby. “The Illinois state legislature, in failing to pass an open housing law, has demonstrated its total disregard for the laws of the federal government,” Raby said.

King did not attend the march. Yet, lending his name and effort to the protest helped publicize open housing issues facing Illinois suburbs as well as many other communities across the country. Furthermore, his efforts in suburbs are not widely known  as compared to efforts in large cities in which he spent significant amounts of time.

Open housing officially came through Congress in 1968 after MLK was assassinated. The Fermilab facility broke ground in December 1968 and operated as a premier science facility for decades. DuPage County continued to have a reputation of few minorities for decades and a long-running lawsuit alleged exclusionary zoning in the county and the county public housing authority faced issues. And while increasing numbers of minorities have moved to the suburbs in recent decades, the suburbs can still be exclusive and exclusionary.

Sources:

Chicago Tribune. 1967. “King Admits His Movement Loses Ground.” Chicago Tribune, June 24, 10.

Chicago Tribune. 1967. “Marchers Protest Weston.” Chicago Tribune, June 25, 7.

Hoddeson, Lillian, Adrienne W. Kolb, and Catherine Westfall. 2008. Fermilab: Physics, the Frontier, and Megascience. Chicago: University of Chicago Press.\

Johnson, Michelle Kimberly. 2016. “”Who Speaks for Chicago?” Civil Rights, Community Organization and Coalition, 1910-1971.” https://www.brown.edu/academics/history/sites/academics-history/files/images/MJohnson%20Who%20Speaks%20for%20Chicago.pdf

Keating, Ann Durkin. 2017. “”Behind the Suburban Curtain”: The Campaign for Open Occupancy in Naperville.” Journal of the Illinois State Historical Society 110(1):59-86.

 

Zoning, defining “family,” and exclusion

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Zoning is a tool municipalities can use to control what kind of developments – and by extension, what kinds of people – can be in their community. A recent law review article looks at how zoning guidelines extend to defining families for the purposes of who can live in a residential unit:

Today, when courts ask “what makes a family?” they often look beyond blood, marriage, and adoption to see if people have made other meaningful, familial commitments that qualify for the obligations and benefits that family law provides. As functional family law developed, cohabitation became one of the most important factors, if not the determining factor, in these kinds of cases. The problem is that zoning laws often prevent these same functional families from living together in the first place. Through this underlying connection to zoning, functional developments in family law are much more vulnerable than they appear.

“Formal family” regulations in zoning are pervasive, and come with the imprimatur of the nation’s highest court. In the 1974 case Village of Belle Terre v. Boraas, the U.S. Supreme Court ruled that municipalities can legally differentiate between related and unrelated families. In the intervening years, courts in 14 states have ruled that “formal-family” zoning is permitted by state constitutions, and the issue remains undecided in an additional 30 states. Only four state courts, in New Jersey, California, Michigan, and New York, have refused to sanction this form of discrimination, and lawmakers in Iowa recently became the first legislators to ban it. The Supreme Court has only revisited the issue once, in 1978, to clarify that the zoning definition of family cannot prevent blood relatives from living together…

The good news is that formal family zoning is of surprisingly recent vintage. There is a long history of functional family approaches to zoning in American jurisprudence, dating back to the early 20th century advent of zoning law. The first zoning ordinances didn’t define “family,” at all, and throughout the first 50 years of their operation, courts often ruled that functional families of all kinds—from gay couples and religious adherents to cult followers and sororities—could live together in peace. Even as “blood, marriage, or adoption” ordinances became more common, courts continued to rule that functional families fell within their wide interpretive ambit….

Formal family zoning is a familiar song—the same legal mechanisms that famously reinforced housing discrimination on the basis of race, also discriminate against families that vary from the nuclear ideal of a heterosexual couple raising their biological children. There is also compelling evidence that low-density zoning, like formal family ordinances, is a significant driver of racial and class segregation. In short, formal family zoning discriminates against non-normative families, but it also reinforces the racial and economic segregation effects of low-density zoning in general.

When they want to be, communities can be creative in developing zoning and other mechanisms that bring in the kind of residents and businesses that they feel fits their community (often along the lines of race and class).

I wonder how these family guidelines are related to zoning restrictions on overcrowding and the number of people allowed in dwellings. Court cases have dealt with this and it seems like the conditions could be similar at times to guidelines against functional families.

If functional families are not as desirable for some communities, perhaps another trend in households is more to their liking: the rise in single-person households. On one hand, suburban housing can be too big and not provide certain amenities like walkable places and public transportation. On the other hand, people in single-person households may use fewer public services and may be willing to purchase smaller, newer units (many suburbs want to build and sell condos and townhomes near downtowns or community focal points). Or, does zoning truly privilege the formal nuclear family in ways that do not extend to any other kinds of household configurations?

Can proposed legislation on housing prompt a public discussion?

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A new bill proposed in the Senate by Elizabeth Warren attempts to address housing issues:

It aims to lower the cost of developing housing so landlords don’t have to make rents so high, coming at the issue from two different angles. From one end, it tries to increase the supply of affordable housing by pouring billions of federal dollars into programs that subsidize developments in rural, low-income, and middle-income communities.

From the other end, the bill attempts to strip away the zoning laws that made developing housing so expensive in the first place. Many of these zoning laws limit low-income residents from moving to wealthier neighborhoods. In Tegeler’s opinion, the laws are one of the main drivers of housing unaffordability. Those laws typically exist at a local level, so in order to target them, Warren’s bill creates a competitive block grant program. The grant money could be spent flexibly—on schools or parks, for example—and is intended to appeal to suburban communities with stricter zoning laws.  Those communities can only access grants if they reexamine and redress their land restrictions.

The bill also focuses on the ways housing inequality falls along racial lines. Notably, it assists populations that federal housing policy has historically failed: formerly segregated African American populations and families whose housing wealth was destroyed in the financial crisis. Under the bill, black families long denied mortgages by the federal government qualify for down payment assistance, helping many in formerly segregated communities to become first-time home buyers. The bill also invests two billion dollars to support borrowers still recovering from the financial crisis with negative equity on their mortgages.

The bill also restructures the Community Reinvestment Act (CRA), a 1977 law proposed to monitor banks with discriminatory loan policies against communities of color. Warren’s bill gives the CRA more enforcement mechanisms and expands its policing power to include credit unions and nonbank mortgage companies, which were not as ubiquitous when the bill was passed. Lastly, the bill strengthens anti-discrimination laws by expanding Fair Housing Act protections to include gender identity, sexual orientation, marital status, and source of income, attempting to limit housing segregation in the future.

It sounds like the bill tries to strike a balance between incentives for communities and developers and strengthening enforcement of guidelines against housing discrimination.

It will be interesting to see what tone the public debate takes, if it even reaches the level of public discussion. Housing issues are not on the national political radar screen. Historically, many Americans are reluctant to address housing concerns through the federal government. They would rather leave these matters to local governments, if government should address the matter at all. Support for public housing has always been limited.

Similarly, even stating an intention of trying to encourage certain suburban communities to open up their doors to different kinds of residents is a hard sell. Minorities and immigrants are indeed moving to suburbia but where they locate or can live is not necessarily even. (See this recent example from the Chicago suburbs of high black homeownership in certain communities.) A good number of suburbanites would attribute the residential segregation patterns to economic options and/or the ability of local communities to draw up guidelines of what kind of community they want to be (such as one without certain kinds of housing).

I would not expect such a bill to be an easy sell or even one that can garner much attention, even if it addresses issues that affect millions of Americans.

Wealthy Americans: “Zip code is who we are”

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I would argue this is not just true of “the new American aristocracy“; where people live has a significant impact on their lives.

Zip code is who we are. It defines our style, announces our values, establishes our status, preserves our wealth, and allows us to pass it along to our children.

On an everyday basis, living in a certain location could affect these aspects of life:

  • social networks and local relationships with different groups of people (race/ethnicity, social class, similar interests)
  • schools
  • access to jobs
  • other local amenities such as community services, recreation, shopping
  • health

Now, the upper class may use their zip code in unique ways. The full paragraph that includes the excerpt at the beginning of the post suggests the zip code becomes a way to keep others out:

Zip code is who we are. It defines our style, announces our values, establishes our status, preserves our wealth, and allows us to pass it along to our children. It’s also slowly strangling our economy and killing our democracy. It is the brick-and-mortar version of the Gatsby Curve. The traditional story of economic growth in America has been one of arriving, building, inviting friends, and building some more. The story we’re writing looks more like one of slamming doors shut behind us and slowly suffocating under a mass of commercial-grade kitchen appliances.

This has been happening for decades in the United States as residents of particular races and ethnicities (primarily whites) and social class (primarily the middle and upper classes) had various mechanisms, now some illegal and others more nebulous (such as exclusionary zoning), to keep those they did not like away from their residences. And this will likely continue for decades more, perhaps particularly for the top 10%.

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

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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.