But an exclusive focus on municipal-level zoning alone misses other important issues, namely: lower income households' access to public services and higher wages. In contrast to the traditional focus on interlocal externalities, we argue here that the problem of exclusive zoning must first and foremost be seen from the perspective of lower-income households.' Exclusion zoning's longstanding focus on the content of local ordinances rather than on these broader exclusion dynamics has defined the problem of exclusion zoning too narrowly.
The Local Focus of Exclusionary Zoning
In addition to blatant discrimination, there are fiscal reasons for exclusionary zoning that are readily observable and well developed in the academic literature.12 Where public services are largely financed by property taxes, owners of lower-value housing contribute less to those services, an implicit received subsidy from owners of higher value property." While this traditional account of exclusionary zoning has focused primarily on the relationship between exclusionary devices and the preservation of property values, scholars have also highlighted the preservation of neighborhood character as an underlying motivation for Laurel , exclusionary zoning creates a kind of inter-local externality, imposing costs on neighboring communities that are forced to house a disproportionate share of lower-income households.24 For example, Mount Laurel's exclusionary zoning was primarily to the detriment of Philadelphia, Camden and Trenton, the nearby urban centers.25 But that same dynamic played out across the country, with suburbs enacting exclusionary zoning ordinances that forced the cost of lower-income households onto the urban core.
The Spatial Dynamics of Exclusionary Zoning
Regional and sub-local exclusion can be just as problematic as exclusion at municipal level. When it comes to affordable housing options, a lower-income household may be relatively indifferent to local jurisdictional boundaries (subject to some caveats, explored below). The question for the household is simply whether there are affordable housing options in a safe neighborhood with adequate access to basic needs (jobs, schools, services, medical care, and so on).
The Needs of Lower-Income Households
Judged by this broader criterion, the problem of exclusionary zoning can occur at both the sub-local and the regional level. Such mobility reduces wage differences between regions, provides labor in places where work is relatively abundant and workers are needed, and provides a path up the economic ladder for lower income workers.36. However, there is some evidence that interregional mobility is declining, and some further evidence that one cause may be land-use controls—particularly land-use controls imposed in higher-income states." This is troubling as an economic phenomenon, and also suggests significant challenges for lower-income workers who may not be able to access regions with higher wages.
After all, zoning can be used to protect affluent neighborhoods and separate lower-income households into distinct groups within a given municipality. Common interest communities also sometimes use fine-grained private land use controls in their masterpieces to exclude lower-income households. The XL revitalization of many cities from the 1980s through today is characterized by greater power of individual communities reclaiming control over zoning, services and spending at the sub-local level to break the broader city's downward spiral that characterized the previous decades.' By exercising sublocal control over services and, in some cases, even revenues (through TIFs, special assessments, and the like), affluent neighborhoods within a municipality can benefit by excluding lower-income households.
Viewed solely through the lens of inter-local competition, sub-local exclusionary zoning should be of no concern. It does not matter where municipalities provide housing for lower-income households, as long as they accommodate their fair share. On the largest scale, it is concerned with the distribution of lower-income households across the country.
And at the smallest scale, it concerns the distribution of lower-income households at neighborhood or even block or building level.
The Problem of Exclusion Reassessed
One way a lower-income household can improve its situation is to move to a municipality with better public services, at least until those public services are fully reflected in that household's housing costs (including property taxes). A lower-income household may benefit from purchasing a lower-value property in a municipality that offers higher-value services. services are largely capitalized in housing costs. For a lower-income household, access to a municipality with good public services does not help if these services are not available to everyone in the community.
For example, good schools may only be available to children in wealthy neighborhoods; police may provide different levels of protection and investment in public infrastructure may also vary.46 If the value of these services is fully capitalized in housing costs, there is little meaningful access for lower-income households. If the "full" value of this school is reflected in real estate values, then it provides little real access to lower-income households. A suburb with only one public school will not be able to exclude lower-income residents from that school, but in larger jurisdictions and urban areas there is clearly an opportunity for sub-local exclusion.
10 (2010), available at http://furmancenter.org/files/publications/RezoningsFurmanCenterPolicyBrief March 2010.pdf ("[U]pzoned lots were located in areas with significantly lower incomes than the city median..."). Employment opportunities are not evenly distributed across the country, nor are higher-wage jobs.52 Even if each local government houses a proportionate share of the region's lower-income households, the region as a whole may not fair share of employment. of lower-income households in the country. And that simply repeats the conventional problem of zoning exclusion at the regional level, where wealthy regions – especially on the coasts – can use regulatory pressure to limit affordability.3 This in turn means that there will be a greater number of households with lower income remains. where they are located (primarily in the South and Midwest), they contribute less to the regional tax base and put pressure on public infrastructure.
According to them, a common path to economic improvement for lower-income households is to move from a region with lower wages to a region with higher wages.
Modern Forms of Exclusion
Rejecting an Ordinance-Centric Focus
Fast forward thirty years, however, and the affordability of housing options is not high on the list of problems facing some of these inner suburbs. local governments "face common issues of managing growth"). See Ganong & Shoag, supra note 35, at 22 ("The US is increasingly characterized by segregation along economic dimensions, with limited access for most workers to America's most productive cities."). 10,000 costs to demolish a house - but the decay of neighborhoods and lack of services means few people want to move."
Height limits, or limits on floor area ratio,94 can still significantly limit supply relative to given demand, even in neighborhoods with true urban density." And simply adding density may not hurt. exclusionary results if this .. the center and attraction of central cities nor the attractive residential environments of outer ring suburbs on the metropolitan fringe."). Courts, in particular, tend not to recognize market forces operating at different scales when analyzing whether an ordinance is impermissibly exclusionary." Even courts that have imposed equitable duties on municipalities have not done so in response to interregional concerns, but only inter-local ones.” Similarly, courts rarely touch on the possibility of sub-local exclusion, and thus the denial of a meaningful opportunity to access quality public services provided within the boundaries of a municipality.
Courts have broadened their spatial framework slightly to consider problems of interlocal externalities and cumulative region-wide impacts. And this broadened view has revealed exceptions that would almost certainly have been missed by a purely localized analysis." An example of this can be found in the divergent approaches to zoning that the Northern District of California and the Ninth Circuit took in Industry Construction Ass'n of Sonoma County v. Petaluma.'o3 The ordinance there had limited the number of multifamily units that could be had been developed over a five-year period in Petaluma, a suburb outside San Francisco.'" But interestingly, the ordinance allowed several multifamily developments where none had previously been permitted.' The ordinance also set aside some of that new development for lower-income families. Notably, there was some discussion in the Ninth Circuit opinion about how Petaluma's ordinance planned for a somewhat even distribution of multifamily housing throughout the city so as not to crowd new development into isolated neighborhoods."' But regardless of this recognition, there was no explicit discussion of the exclusionary sub-local dynamics or the possibility of unequal distribution of municipal services.'12.
The city of Livermore completely banned all new development indefinitely, without drawing the familiar distinction between expensive and affordable housing conventionally characterized as exclusionary ordinances.114 Because Livermore's plan did not exclude affordable housing development, the court rejected . any reliance on exclusionary zoning cases that involved large lot zoning or other density restrictions."' The California Supreme Court emphasized how the impact of an ordinance is not uniform with municipal boundaries, but in almost the same breath distinguishes ordinances that more directly wealth has. -based implications and those that do not." An article published in this magazine in 1975 by James Quinn noted that even in cases where courts have found that municipalities have a legal obligation to provide their fair share of affordable housing within a region, the concept of demand was not expressed with any precision."9 Quinn referred to the Pennsylvania Supreme Court's decision in Appeal of Girsh,20 where the court's assessment of demand was again based on a purely localized criterion: whether there was a developer who ' wanted to pursue an affordable housing project within the municipality." 21. Without a well-thought-out spatial framework, courts are likely to miss their boundaries and cannot be parochially limited to the alleged good of the municipality in question.").
