Moira O’Neill (University of California, College of the Law, San Francisco; University of California, Berkeley – Institute for Urban and Regional Development) has posted Toward an Equilibrium: When State Preemption of Zoning Serves Localism on SSRN. Here is the abstract:
Cities’ power over land use is substantial but not absolute. When local zoning blocks affordable housing for low- and middle-income people, states may step in to take back local zoning power previously granted to cities. In the latter half of the twentieth century, states did just this: Some states required cities to zone for their fair share of housing affordable to low-income households. Other states allowed property owners developing affordable housing to bypass local zoning. Still, the national housing crisis persists, and most scholars agree that the inadequate supply of affordable housing is at the heart of this crisis. Early adopters of preemption to curb parochialism have since strengthened and expanded upon existing law, and more states have begun to use these strategies.
And yet scholars and politicians also argue against more state intervention into local zoning power. Critics contend that today’s preemption springs from a twentieth-century paradigm of affluent suburbs and distressed core cities; it cannot help expensive cities cope with neighborhood change and the risk of displacing low-income residents. Preemption, in this view, is ineffectual even as it imposes steep trade-offs: To take back zoning power in service of statewide housing policy is to target localism and cripple redistributive policymaking. Here zoning is leverage—democratic power over development that enables cities to negotiate with developers for what cities need to protect poor people in a time of city resurgence. A growing political movement argues the same.
Is today’s preemption to curb parochialism relevant to the housing crisis unfolding in expensive cities? Does such preemption undermine localism? This paper examines the broader claims regarding preemption and its effect on localism against empirical evidence derived from San Francisco’s experience under recent changes to California’s housing law: A city may use exclusionary zoning to the disadvantage of low-income residents within the city and the region, undermining the democratic justifications for localism as it reproduces inequality. Housing unaffordability will not be solved by either local or state governments acting alone. Some preemption may support power equilibria between two levels of government and between parts of local government.
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