STATE PREEMPTION OF LOCAL ZONING LAWS AS INTERSECTIONAL CLIMATE POLICY.

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Date: Apr. 2022
From: Harvard Law Review(Vol. 135, Issue 6)
Publisher: Harvard Law Review Association
Document Type: Article
Length: 11,376 words
Lexile Measure: 1880L

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Since the inception of zoning in the early twentieth century, municipal governments have dominated land use decisionmaking. Cities and towns decide where, what, and how to build, almost entirely without state oversight. This system, which has contributed to the housing crisis Americans face today, goes largely without question. (1)

That may soon change. Recently, several states have considered or passed laws that impinge on this area of traditionally local power. (2) These laws, which have surfaced in both blue and red states, preempt restrictive local zoning regulations in favor of regulations that encourage the development of denser housing. Most typically, these states mandate that any land zoned for single-family housing--the majority of residentially zoned land in the United States (3)--allow "middle housing," typically defined as duplexes, triplexes, and the like. (4) Advocates of these laws hope that by removing barriers to multifamily housing, developers will build more units of housing at more reasonable prices. (5)

These laws merit attention for their potential to mitigate climate change. Today, transportation accounts for the largest share of America's emissions; urban sprawl contributes heavily to the problem. (6) Single-family homes located far from city centers are energy inefficient and, more importantly, force residents to drive longer distances. (7) Denser zoning reduces greenhouse gas (GHG) emissions on both accounts,8 but the climate benefits of encouraging density are not always discussed by those who advocate for density-enhancing measures.

This chapter identifies recent state attempts to preempt local zoning regulations, situates them within the broader framework of climate policymaking, and analyzes whether this type of state preemption is normatively desirable. Section A opens with a short history of U.S. zoning law, explaining how it emerged at the beginning of the twentieth century largely as a response to wealthy homeowners' attempts to isolate themselves from poor people and people of color. In the following decades, restrictive, single-family zoning continued to spread, causing the sprawl, segregation, and unaffordability that characterize the American housing market today. One consequence of this pervasive sprawl is high levels of GHG emissions. This section concludes by summarizing the research regarding the link between zoning and climate, which, while mixed, supports the contention that denser zoning leads to lower rates of vehicle use.

From there, section B describes the recent spate of state zoning legislation in more detail and explains how this legislation, though not always described in climate terms, is ultimately climate policy. In fact, this type of policy, which addresses the multiple overlapping crises of climate change, housing unaffordability, and racial segregation, is exactly what policymakers should advocate for. Not only does this type of "intersectional" climate policy better utilize scarce funding sources, but it may also be more politically palatable across the ideological spectrum, as it could appeal to constituencies who do not prioritize climate change as a policy problem and could motivate actors who do care about climate change, but have yet to devote adequate attention to the problem.

The Chapter ends by addressing arguments against the use of state zoning...

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Gale Document Number: GALE|A702381252