America is suffering from a severe housing shortage, and one of the main culprits is exclusionary zoning: regulations that restrict the amount and type of housing that property owners are allowed to construct on their land. Exclusionary zoning slows economic growth, severely limits economic mobility, and imposes burdens that disproportionately fall on racial minorities.
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.
Just as there is substantial cross-ideological agreement on the policy aspects of zoning reform, there can be similar broad agreement on the constitutional dimension of this issue. One of us, Ilya Somin, is a libertarian sympathetic to originalism. The other, Joshua Braver, is a progressive living constitutionalist. We differ on many things, but agree here.
The most significant type of exclusionary-zoning restriction is single-family-home zoning, which restricts housing construction in an area to homes that house only one family. Some 70 percent of all land zoned for residential use in the United States is limited to single-family residences only. Other types of exclusionary-zoning restrictions in many areas include minimum lot sizes, parking mandates, height restrictions, and more.
Exclusionary zoning severely reduces the housing supply in many jurisdictions, thereby preventing people from moving to areas where they could find better jobs and educational opportunities. It also increases homelessness by pricing poor residents out of the housing market. Exclusionary zoning causes enormous harm.