4 ms·

The Constitutional Case Against Exclusionary Zoning (Texas Law Review)

3 points by pcaharrier 2y ago

bell-cot 2y ago
> We argue that exclusionary zoning—the imposition of restrictions on the amount and types of housing that property owners are allowed to build— is unconstitutional because it violates the Takings Clause of the Fifth Amendment. ... Haven't the courts already repealed the 5th Amendment, with stuff like Civil Asset Forfeiture?
- pcaharrier 2y ago
  Heh and also oof. That being said, no, I don't think anyone thinks that the 5th Amendment is completely a dead letter . . . yet.
- maxwell 2y ago
  Whatever the case federally, States can ban asset forfeiture. Mine became the fourth to do so in 2021: https://reason.com/2021/07/14/maine-becomes-4th-state-to-repeal-civil-asset-forfeiture https://reason.com/2021/07/14/maine-becomes-4th-state-to-rep... Same with exclusionary zoning. State laws can strike down Euclid. SB 9 in California appears to move in that direction: https://focus.senate.ca.gov/sb9 https://focus.senate.ca.gov/sb9
  - pcaharrier 2y ago
    The authors briefly mention SB9: "SB 9, a recent reform enacted in 2021, allows owners of single-family homes to subdivide their property; but a recent court decision held that the provision is illegal under the state’s constitution as applied to California’s 121 charter cities.
Kon-Peki 2y ago
There's a bunch of case law surrounding people who have bought property for a specific use and then the city rezones it to prevent that use. The purchasers generally always win in court, because they have obviously had something taken from them. But here it is not so clear. We are 100 years from this Euclid decision, so essentially anything you have purchased already had the rights taken from it. You knew that there was zoning when you bought it. It is some previous owner that was wronged (100 years ago!), not you. So where is your standing to file a challenge? Please note that I am very much in favor of someone else using their own money to mount a challenge, and I wish them luck :)

3 points by pcaharrier 2y ago

> We argue that exclusionary zoning—the imposition of restrictions on the amount and types of housing that property owners are allowed to build— is unconstitutional because it violates the Takings Clause of the Fifth Amendment. ... Haven't the courts already repealed the 5th Amendment, with stuff like Civil Asset Forfeiture?

pcaharrier 2y ago
Heh and also oof. That being said, no, I don't think anyone thinks that the 5th Amendment is completely a dead letter . . . yet.
maxwell 2y ago
Whatever the case federally, States can ban asset forfeiture. Mine became the fourth to do so in 2021: https://reason.com/2021/07/14/maine-becomes-4th-state-to-repeal-civil-asset-forfeiture https://reason.com/2021/07/14/maine-becomes-4th-state-to-rep... Same with exclusionary zoning. State laws can strike down Euclid. SB 9 in California appears to move in that direction: https://focus.senate.ca.gov/sb9 https://focus.senate.ca.gov/sb9
- pcaharrier 2y ago
  The authors briefly mention SB9: "SB 9, a recent reform enacted in 2021, allows owners of single-family homes to subdivide their property; but a recent court decision held that the provision is illegal under the state’s constitution as applied to California’s 121 charter cities.

Kon-Peki 2y ago

There's a bunch of case law surrounding people who have bought property for a specific use and then the city rezones it to prevent that use. The purchasers generally always win in court, because they have obviously had something taken from them. But here it is not so clear. We are 100 years from this Euclid decision, so essentially anything you have purchased already had the rights taken from it. You knew that there was zoning when you bought it. It is some previous owner that was wronged (100 years ago!), not you. So where is your standing to file a challenge? Please note that I am very much in favor of someone else using their own money to mount a challenge, and I wish them luck :)