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Joe Selvaggi talks with George Mason Law Professor Ilya Somin about the costs, benefits, and legal foundations of exclusionary zoning argued in his recent paper: The Constitutional Case Against Exclusionary Zoning.
Guest:
Ilya Somin is a Professor of Law at George Mason University. His research focuses on constitutional law, property law, democratic theory, federalism, and migration rights. He is the author of his most recent book, Free to Move: Foot Voting, Migration, and Political Freedom (Oxford University Press, 2020, revised and expanded edition, 2021). Somin’s writings have been cited in decisions by the United States Supreme Court, multiple state supreme courts and lower federal courts, and the Supreme Court of Israel. He has testified on the use of drones for targeted killing in the War on Terror before the U.S. Senate Judiciary Subcommittee on the Constitution, Civil Rights, and Human Rights. Before joining the faculty at George Mason, Somin was the John M. Olin Fellow in Law at Northwestern University Law School from 2002-2003. In 2001-2002, he clerked for the Hon. Judge Jerry E. Smith of the U.S. Court of Appeals for the Fifth Circuit. Professor Somin earned his BA, Summa Cum Laude, at Amherst College, MA in Political Science from Harvard University, and JD from Yale Law School.
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I don’t agree that exclusionary zoning is such a clear taking under the Constitution. If your use of the land prevents someone else of the full use of their land, then you are depriving them of their property rights.
For example, Somin mentions Houston as this mecca of a city without zoning. But there are significant problems that arise without zoning. In an upscale neighborhood with narrow, tree-lined streets, someone bought a house and demolished it. They planned to build a 23-story Ashby high-rise apartments on a 1.6-acre tract. It was a major fight the entire time I lived in Houston, and I think the neighborhood eventually lost. So now they have all the cars from that high-rise building parking on their streets. People can look out of their apartments down into the yards of neighbors. I didn’t live in the neighborhood, so it wasn’t my problem, but I would have been outraged to have such a monstrosity built next door to me.
There is an important role for exclusionary zoning to play whenever people live close together. Yes, it can be and is abused. But it is also essential in some form.