Exclusionary Zoning or Highway Funds, Your Pick: A Viable Mechanism for Federal Action on Zoning
The United States is short 3.8 million units of housing, largely due to artificial limits on housing in high-demand areas driven by outdated zoning and building codes. The mandated underbuilding of US housing in rich coastal cities led to an estimated 36% loss in growth from 1964 to 2009 (newer estimates are smaller but still are significant amounts of lost value). As a result, according to US Housing and Urban Development (HUD) criteria, some 22 million renters qualified as rent-burdened in 2021. We propose that the federal government use highway funding as a legal mechanism to force states to adopt zoning reform. Since the legislative process is slow, we also propose immediate executive action to nudge state and local agencies on minor factors limiting housing supply, including building codes.
Legal precedent for our proposal is 23 U.S.C. §158, which imposed a national minimum drinking age by taking away recalcitrant states’ highway funding. Furthermore, there are ample existing models for federal legislation to take: for example, California’s extensive reforms, including but not limited to allowing by-right construction of Accessory Dwelling Units and preempting San Francisco’s zoning policy, and Montana’s reforms, which require by-right zoning approvals and allowing of up to quadplexes for almost all cities above 5,000 in population. We propose mimicking the New Jersey Mount Laurel doctrine or the California Housing Elements legislation, imposing a requirement for looser regulations on states containing cities with a rent crisis.
Legislative Recommendation
Congress should pass legislation following 23 U.S.C. §158 requiring each state with a Metropolitan Statistical Area where the median renter is rent-burdened (i.e., median rent is at least 30% of area median income) and where area median income exceeds the US median income to submit a plan to HUD detailing how they will address the rent crisis in their state.
- Strategies to submit to HUD may include:
- Requiring every lot allow the construction of four attached units, two attached units, two detached units, or any less dense combination.
- Allowing accessory Dwelling Units to be built without affecting any mandates that apply to the lot.
- Not allowing parking minimums to exceed one space per bedroom for a residential unit.
- Limiting impact fees and other charges cities bring on developers.
- A catch-all clause banning unreasonable burdens on the construction of housing.
- Private right of action similar to California’s builder’s remedy, allowing for a lawsuit to gain by-right approval if the law is violated.
Any state whose proposal is found to not expeditiously move it to a place where the median renter is no longer rent-burdened can lose appropriations from the Highway Trust Fund.
Congress should also appropriate $1 billion to fund planning studies in states affected by this law.
Executive Recommendation
The U.S. Department of Transportation and the Federal Transit Administration should start using allowed population density within a catchment area as a scoring criterion for competitive transit grants.
The Federal Emergency Management Agency should, in its building code modernization project, examine if building code changes can allow for the building of more housing and align with peer countries’ regulations.
- For example, examining whether single stair access designs are safe.
Some might argue that a congressionally driven strategy is too difficult. We disagree, as coalitions for legislative housing reform have been able to form in urban NIMBY and progressive California, rural-Republican dominated Montana, and suburban, new Republican-leaning Florida. We propose fostering an urban-rural coalition by targeting separate messages to each party. Specifically, we would target urban Democrats by focusing on the socioeconomic disparities fostered by exclusionary zoning, and target (rural) Republicans by pointing out that restrictive zoning is an infringement on property rights, and its resultant sprawl threatens the rural character of communities. Some might argue that highway funding and housing are unrelated. However, the federal government has an interest in ensuring its transportation is an efficient use of taxpayer money, and under exclusionary zoning, development is encouraged to unnecessarily sprawl overloading interstate highways, thus forcing expensive highway widenings; essentially, arguing that housing and transportation are inexorably linked.
If our proposed bill is passed, gains on housing affordability will be locked in and restrictions preventing the average American from owning or renting where they want to live will begin to fade, unlocking the potential of the American economy.
This idea of merit originated from our Housing Ideas Challenge, in partnership with Learning Collider, National Zoning Atlas, and Cornell’s Legal Constructs Lab. Find additional ideas to address the housing shortage here.