Using State Constitutions to Combat Exclusionary Zoning

Exclusionary zoning is probably the biggest cause of the housing crisis besetting many parts of the United States. A broad cross-ideological array of economists and land-use scholars has concluded that such zoning is responsible for massive housing shortages, and that it also cuts off millions of people — particularly the poor and minorities — from economic and social opportunities. But relief is possible — state constitutional law can potentially do much to address this issue in ways that other pathways to reform cannot readily match.

Exclusionary zoning involves restrictions on land use that constrain the amount and type of housing that can be built in particular areas. Most notably, some 70 percent of all residential property in the United States is zoned for single-family residences only. This, combined with other restrictions like minimum lot sizes and parking mandates, makes it difficult or impossible to build new housing in response to demand in many areas, particularly those that are most attractive for people seeking job and educational opportunities.

In a 2024 Texas Law Review article and a shorter version in The Atlantic, Joshua Braver and I explained why most exclusionary zoning violates the Takings Clause of the Fifth Amendment, which requires payment of “just compensation” whenever the government takes private property. The basic idea is simple: The property right protected by the Takings Clause includes the right to use property, and the right to use is severely constrained by zoning restrictions that block housing construction. We showed that both originalism and leading versions of living constitutionalism — two traditionally opposed approaches to constitutional theory — lead to the same conclusion.

While we hope federal courts eventually adopt this position, it could take a long time. In a recently posted article, “The State Constitutional Case Against Exclusionary Zoning, ” currently under submission to law journals, Braver and I build on our 2024 publications, and explain how great progress can be achieved by using state constitutional law. This can be done both by litigation under existing state constitutional provisions and through potential constitutional amendments.

Braver is a progressive living constitutionalist; I am a libertarian and an originalist. Despite ideological and jurisprudential differences, we are united on this important issue, and we hope others might join us.

Improving Existing State Constitutional Doctrine

Our new article is the first comprehensive assessment of where each state’s constitutional law currently stands on the issue of exclusionary zoning, and what can be done to improve things. All 50 state constitutions have takings clauses similar to that of the Fifth Amendment. The current precedent on most of them is highly permissive, imposing few takings constraints on exclusionary zoning. Much of it seems to be based on near-blind imitation of badly flawed federal Takings Clause precedent. Only Alaska, Connecticut, and New Hampshire have takings standards that are meaningfully less deferential to zoning than the notoriously lax standards applied by the U.S. Supreme Court under its decisions in Village of Euclid v. Ambler Realty Company (1926) and Penn Central Transportation Company v. New York City (1978). The former upheld exclusionary zoning against constitutional challenge, while the latter established a standard for “regulatory takings” claims that subjects them to a three-factor test that is usually applied in ways that are highly deferential to the government.

Several states — most notably New Jersey, New York, and Pennsylvania — constrain exclusionary zoning under the state constitutional due process clauses. Courts in these states generally apply variants of New Jersey’s famous Mount Laurel line of cases. While these doctrines impose some meaningful constraints on zoning, they require courts to apply complex, policy-oriented balancing tests intended to assess a community’s “fair share” of affordable housing, and whether current zoning rules fall short of it. A few other states use different due process tests with at least a modicum of bite.

The overall landscape, then, is far from ideal. There is plenty of room for improvement, justified under both originalist and living constitutionalist approaches to interpretation. Many state constitutional takings clauses could be effectively reinterpreted by applying many of the same points we have developed in our article about the federal Takings Clause.

Numerous state takings clauses were initially enacted or reenacted during the period from 1865 to 1900, at a time when the right to use property was widely understood to be an element of the property rights protected by takings clauses. Others have their origins in the immediate pre-Civil War era, or at the time of the founding, when the right to use also enjoyed wide acceptance, promoted by such influential figures as the British jurist William Blackstone, whose work heavily influenced the founding generation, and James Madison, principal drafter of the federal Takings Clause.

From a living Constitution point of view, stronger judicial scrutiny of exclusionary zoning is justified by theories focusing on enhancing autonomy and opportunity, and on providing “representation-reinforcement” — protecting people who cannot effectively protect themselves in the political process. Exclusionary zoning victimizes minorities, the poor, and — most obviously — those who lack representation in the localities adopting zoning policies because those very policies prevent them from being able to move there.

While takings clauses are generally the best path to curbing exclusionary zoning, we also offer strategies for improving state due process zoning jurisprudence. The New Jersey approach and others like it can be modified to have stronger bright-line rules constraining exclusionary zoning, as opposed to difficult-to-use balancing tests. The former would simultaneously provide more protection for property owners and people seeking housing and require much less in the way of discretionary policy-like decisions by courts.

Reform Through State Constitutional Amendment

We also outline ways in which zoning reform can be achieved through state constitutional amendments. The federal Constitution is notoriously difficult to amend. Most state constitutions are much more easily changed. Seventeen states allow amendment by a simple majority vote in a citizen-initiated referendum. In 10 others, it can be done by a vote of the state legislature, followed by a popular vote.

Public opinion research on zoning reform finds equivocal results. Much depends on the wording of questions. But the evidence indicates that strong majorities support ending most exclusionary zoning if it is presented to them as a way of lowering housing prices and allowing property owners to build what they want on their own land. Moreover, voters are unlikely to pay close attention to the specific details of referendum initiatives. This creates potential opportunities to enact sweeping reforms by constitutional amendment.

We propose several possible options for doing so. The best and most obvious is a simple categorical ban on exclusionary zoning, with strictly limited exceptions for situations where housing construction poses a serious threat to public health or safety. But we also outline more moderate alternatives, such as just banning the more egregious and widespread types of exclusion, such as single-family-only zoning.

In recent years, some states — most notably California, Montana, and Texas — have enacted significant zoning reform through the ordinary legislative process. In different ways, these laws all make it possible to build new multi-family housing in areas where it was previously difficult or impossible to do so. But serious constraints remain even there, and in many key states little or nothing has been accomplished, such as in New York and Virginia. “NIMBY” (not in my backyard) interest groups are often able to stifle or severely constrain reform at the state and local level.

Experience with eminent-domain reform shows that property rights reforms enacted by citizen-initiated referendum are likely to be much stronger than those that must go through a state legislature. In the aftermath of the Supreme Court’s controversial 2005 decision in Kelo v. City of New London, which upheld the condemnation of homes for private “economic development, ” there was an immense political backlash, leading 45 states to enact reform laws. But many of the reforms turned out be ineffective, primarily because interest groups that benefited from broad eminent domain authority were able to water them down in the legislative process, creating the appearance of change without the substance. Reforms enacted by citizen-initiated referenda were almost always effective, by contrast, because they were drafted by property rights advocates who could bypass the state legislature and go directly to voters. And, significantly, most such reforms passed by large margins. Zoning reformers would do well to learn from this experience.

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Jurists ranging from liberal Supreme Court Justice William Brennan to prominent conservative Judge Jeffrey Sutton have argued that states often can and should use their constitutions to protect rights more broadly than the Supreme Court’s interpretation of the federal Constitution. Combatting exclusionary zoning is an area where this can be done.

Moreover, state constitutional law avoids common objections often raised against federal judicial intervention. Relative to federal constitutional law, the state version can take more account of local and regional variation — and be enforced by judges who face greater political accountability because many do not have life tenure.

Ultimately, state constitutional litigation and state constitutional amendment should be used in conjunction with conventional political efforts at zoning reform. Efforts to reform federal takings doctrine through litigation should also continue. Past successful constitutional reform efforts — including on civil rights, same-sex marriage, gun rights, and eminent domain issues — all used a combination of strategies. Zoning reformers should follow the same multifaceted path to success.