Scholarship

Courts, scholars, and commentators routinely criticize or demand an end to “exclusionary zoning.”  These critiques often fail to provide a clear or consistent definition of what constitutes exclusionary zoning.  Specific zoning devices are sometimes provided as examples, such as zoning districts that permit only single-family housing and ordinances that prohibit any multi-family housing.  Often it is not clear whether these devices are deemed per se exclusionary, or if a determination of their status demands a more nuanced, contextual assessment.  With regards to single-family zoning and prohibitions on multi-family housing, the line between acceptable and exclusionary zoning is typically left unstated.  If a zoning ordinance’s least dense district allows duplexes, is it still exclusionary?  Rather than pinpoint specific practices that render zoning exclusionary, some analyses focus on the broader effects of a zoning regime, examining whether it increases the cost of housing production and makes it more difficult for lower-income and minority households to move to a community.  But this demands a determination of the proper baseline.  Is it a world with no land use regulations, since nearly any regulation may increase costs for someone? 

Greater specificity regarding those zoning devices that always (or sometimes) problematically exclude and how precisely they should be reformed would compel critics and supporters of existing zoning to take and defend more concrete positions.  This essay examines some of the challenges of identifying exclusionary zoning and frames them as reflective of longstanding questions involving line-drawing in the context of land use regulation.  These challenges reveal, in part, an uncertainty that has persisted since the early days of zoning regarding the scope of the police power and the determination of whether zoning provisions advance legitimate health, safety, and welfare concerns.   This brief essay is not intended as an exhaustive treatment of exclusionary zoning, but rather a more focused inquiry into how the term might be defined in a manner that would improve scholarly discourse and aid both courts and legislatures seeking to confront or eliminate it.

The housing shortage and affordability crisis have elicited calls for a reappraisal of the allocation of zoning power between state and local governments. Although scholars have given significant attention to potential legal reforms, there has been little discussion of the local administration of zoning codes. Over the course of the twentieth century, local governments embraced more flexible approaches to regulating land use, allowing regulations to adjust to changing conditions and demands and local governments to extract benefits from new development. This flexibility relies in part on the exercise of discretion by administrative agencies, most notably zoning boards of appeal. Flexibility and the exercise of discretion are not without costs, particularly in terms of predictability. They also frequently lead zoning boards to ignore relevant legal standards and exceed the scope of their delegated authority.

Recent scholarship has shed new light on the unique attributes of local administrative law. At the same time, scholars of administrative law more generally have explored the merits and contours of increased transparency. This Article draws on this scholarship and explores how deeper consideration of the administrative structure and functioning of local land use law might inform legal reforms.

Presenting an empirical analysis of the twenty-five most populous cities in the United States, it assesses the transparency of zoning administration in these jurisdictions. I argue that increasing the transparency of and public access to information related to variance applications and decisions will improve the predictability and consistency of these decisions. It will also make the need for reform more salient and help target those reforms. 

Single-family zoning is increasingly under attack in both the popular press and scholarly journals. Critics highlight how zoning districts that allow only detached, single-family homes exacerbate racial and economic segregation and perpetuate wealth disparities. While a few local and state legislatures have eased regulations and permitted denser development in single-family neighborhoods, such neighborhoods remain the dominant component of American zoning. The power of local governments to impose zoning derives from the police power – traditionally understood as the power to legislate in furtherance of health, safety, and the public welfare. These traditional concerns seem to provide little justification for prohibiting duplexes and triplexes in single-family enclaves. Recognizing this, many early zoning proponents feared that courts would strike down exclusively single-family districts. They confronted criticism that such zoning was merely aesthetic in nature and any actual benefits it conferred were problematically limited to those wealthy enough to live in a single-family home.

This Article provides an intellectual and legal history of how early supporters of zoning responded to these criticisms and defended the legitimacy of single-family districts specifically. While others have documented the history of zoning generally, the discrete justifications for single-family zoning have not been closely examined. This Article explains how zoning’s early supporters, through writings and speeches, formulated distinct arguments in defense of single-family districting and refined those arguments in the face of legal challenges. Supporters justified single-family zoning as one component of a comprehensive zoning regime grounded in careful consideration of a community’s existing needs and future demands. Because comprehensive zoning itself constituted a valid exercise of the police power, they argued, it rendered valid individual components, including single-family districts, that may not have independently been justified.

Little contemporary zoning, however, reflects the comprehensive approach espoused by these early proponents. This reality suggests that even the fragile early legal arguments for single-family districting cannot withstand critique. By carefully documenting the intellectual and legal history of single-family zoning, this Article sharpens contemporary criticism and can inform the efforts of zoning reformers. Singling out single-family zoning will enable scholars, reformers, and courts to both unbundle a particularly questionable element of zoning and reemphasize the importance of a more modestly comprehensive approach to zoning.

There is perhaps no area of land use law where practice departs more from legal doctrine than the realm of zoning variances. According to the legal doctrine, variances are to be granted sparingly, providing a “safety valve” that alleviates unique hardships encountered by a property owner. In practice, variances are granted at high rates—often around ninety percent of applications are approved—and, in some jurisdictions, in high volumes. In such cases, variances effectively serve as a rezoning, enabling jurisdictions to permit otherwise prohibited uses and allow growth and development to occur without addressing needed zoning reforms. By allowing neighbors the opportunity to weigh in on the smallest of changes, with little attention to the relevant legal doctrine, they also create significant uncertainty, delay, and cost for property owners. This problem is particularly acute in the City of Boston, where the city grants thousands of variances each year. In this symposium contribution, we share the results of an empirical study of variance decisions in Boston. We compare Boston to three neighboring jurisdictions: Cambridge, Brookline, and Somerville. We find that variances in Boston are, consistent with prior studies elsewhere, granted at a very high rate. Looking at the substance of these decisions, we find that little attention is given to the legal requirements for a variance. Instead, decisions are shaped by a desire to help individual applicants, a willingness to permit development consistent with the neighborhood, and the policy preferences of board members. This study suggests a number of lessons for reformers. Variance decisions shed light on particularly onerous elements of local zoning, revealing targets for reform. The process itself highlights how local residents understand zoning and their expectations regarding their own role in land use decision-making. In jurisdictions that rely heavily on variances to permit new development, reformers will need to grapple with how they might substitute the voice residents currently exercise through the variance process.

Despite an academic consensus that easing land use regulations to increase the supply of housing can help lower housing prices, local opposition to new development remains prevalent. Onerous zoning regulations and resistance to new housing persist not only in wealthy suburbs, but also in lower-income urban neighborhoods. In addition to making housing more expensive, such policies increase residential segregation, exacerbate urban sprawl, and have detrimental environmental effects. If increasing supply tends to reduce costs, what explains this opposition, particularly during a period of rising housing costs?

One factor is concern about the localized costs of greater density and its effect on neighborhood character and livability. There is a perception that new development may, by changing the character and desirability of its immediate neighborhood, play some role in increasing housing prices and exacerbating gentrification and displacement in lower-income communities. Empirical evidence suggests this is not the case, but efforts to exclude new development and demands for greater local control over land use persist in lower-income urban neighborhoods. These tendencies mirror responses in wealthier communities.

This Article compares these exclusionary tendencies and asks whether there is a normative basis for differentiating them. It concludes that there is a modest case for distinct treatment, based on a combination of factors including the historical treatment of lower-income urban communities, the more fragile relationship between property and personhood in such neighborhoods, the structure of local government law, and the principle of subsidiarity. However, any preferential treatment must avoid undermining broader efforts towards reducing regulatory and procedural obstacles to denser development and increased housing supply. It should primarily address concerns about neighborhood character and the claims of long-term residents to a distinct stake in the neighborhood that entitles them to some degree of deference and perhaps some share of the increased property values generated by a zoning change. Rather than provide additional process or opportunities for public participation, legal responses should carefully circumscribe local authority in the realm of planning and grant individual residents a property entitlement they can freely transfer. This entitlement, granted to both owners and tenants, would allow residents to derive some benefit from new development while strengthening the voice of a more representative share of the local population. 

Commentators have long decried the pernicious effects that overly restrictive land use regulations, which stifle new development, have on housing supply and affordability, regional and national economic growth, social mobility, and racial integration. The fragmented nature of zoning rules in the United States, which are set primarily at the local level, renders it seemingly impossible to address these concerns systematically. Although there have been some efforts to address local exclusionary tendencies and their suboptimal effects by means of greater state control, these efforts, which remain contentious, have been limited to just a few states. In the past few years, a new wave of state interventions in local zoning has appeared. These interventions are motivated in part by the harsh reality of housing shortages and skyrocketing costs in significant parts of the country, which have made housing affordability a salient issue for a broader segment of the population. At the same time, states have grown increasingly willing to preempt local governments across a range of policy realms. This Article contends that the confluence of these and other factors suggests the potential for a recalibration of the balance of power between state and local governments in the realms of housing and land use regulation. State governments are increasingly displacing local restrictions on new development, mandating that municipalities permit certain forms of housing, and providing incentives for local governments to adopt certain forms of housing. I argue that the current housing crisis justifies bold new forms of state intervention. Such interventions should expressly preempt certain narrow elements of local law, rather than, as an earlier generation of interventions did, add additional planning requirements, procedural steps, or potential appeals. At the same time, these interventions can, and should, provide clear mechanisms for addressing significant countervailing local interests. 

Property rights and religious liberty seem to share little in common. Yet surprisingly similar claims have long been made on their behalf, including bold assertions that each of these two rights uniquely limits the power of the state and serves as the foundation for other rights. This Article reframes the conception of property rights and religious liberty as foundational by foregrounding communitarian aspects of each right. Property and religious freedom are a foundation for other rights, but in a different manner than traditional accounts suggest. It is not the individual exercise of these rights that provides a foundation for other rights, but rather the complementary roles these rights play in the formation of normative communities that, in turn, serve as counterweights to the state.

This Article makes three distinct contributions to existing legal literature. First, it reveals the significant similarities in historical and theoretical conceptions of the foundational status of these two rights. Second, it integrates the developing scholarly literature on the communal and institutional nature of these two rights. Third, it builds upon this literature to contend that the right to property and religious freedom can indeed provide important foundations for rights more generally, but only if we sufficiently protect and nurture, through law, the communities and institutions upon which these rights depend. The Article concludes by suggesting new approaches to assessing a diverse set of contemporary legal disputes: religious communities seeking to locate in the face of local government opposition, Native American communities challenging government actions on sacred lands, and Sanctuary churches opposing immigration enforcement by sheltering individuals on their property.

Seemingly overnight, companies like Uber, Lyft, Airbnb, WeWork, Taskrabbit, Shyp, and many others have transformed transportation, accommodations, personal services, and other sectors. The evolving regulatory response to this “sharing economy” presents an intriguing puzzle. Where telephone, broadband, early Internet companies, and similar previous technologies were shaped by battles with federal regulators, the fate of sharing enterprises is playing out in front of taxi and limousine commissions, zoning boards, and city councils.

The reason for this atypical dynamic, this Article argues, is that — unlike prior technological disruptions — the sharing economy is fundamentally an urban phenomenon. The platforms that enable sharing leverage or confront conditions of density, proximity, specialization, and even anonymity that mark city life. And many sharing companies flourish through a kind of regulatory arbitrage that finds value in frictions and barriers generated by urban regulatory regimes.

A fascinating experimentalist dialectic is emerging from the resulting decentralized regulatory landscape. Local economic, political, legal, and social conditions are generating regulatory responses that range from full embrace to open hostility. And sharing enterprises are responding by adjusting their business models and reconciling in various ways to these regulatory constraints. These compromises are generating creative solutions to balancing innovation and public welfare.

The interaction between urban governance and the sharing economy, however, flows both ways. Local governments are being pushed to be more transparent about their policy interests, creating spillover effects in regulatory regimes beyond the sharing economy. And the sharing economy is transforming cities themselves. The shift from ownership to access is altering development and mobility patterns as traditional links between transportation, housing, and labor markets and the shape of metropolitan space morph.

By framing the sharing economy as an urban phenomenon, this Article sheds important new light on a rapidly emerging scholarly discourse. To date, scholars have failed to recognize the sharing economy’s deep reliance on the urban fabric and its potential to mold that fabric. Understanding this relationship will also lead to better calibrated regulatory responses that reflect the sharing economy’s holistic impact on cities. Equally important, it will firmly ground our understanding of the sharing economy in its urban birthplace as it matures.

Only one in four eligible households receives some form of rental assistance from the federal government. Nonetheless, there is no time limit for the receipt of this assistance; individuals can continue to receive benefits as long as they satisfy eligibility requirements. In addition, individuals who do obtain assistance frequently have higher incomes than those denied it. Beyond simply providing housing, federal rental assistance is enlisted to serve a myriad of additional policy goals — including furthering economic integration and providing access to better neighborhoods — that can exacerbate inequities between those who receive benefits and those denied assistance. These broader objectives often increase the cost of housing assistance and reduce the number of households served.

Given increasingly limited resources and the growing demand for rental assistance, difficult decisions must be made regarding how to satisfy a range of conflicting programmatic goals. Although for at least four decades legal scholars, economists, public policy experts, and politicians have denounced the inequities in existing housing policy, no one has provided a detailed analysis of the specific ways in which this policy departs from norms of distributive justice and of how it might be made more equitable. This Article moves the conversation beyond simply decrying existing inequities and instead carefully analyzes federal housing policy in light of specific theories of distributive justice. Drawing on the philosophical literature, it evaluates the specifics of existing policies, and their distributional impacts, in light of five theories of distributive justice. It then proposes a new structure for federal rental assistance, which would allow recipients to choose among a set of “housing resource bundles.” This approach will not only satisfy the most salient understandings of distributive justice, but will also advance the concerns that underpin other distributive justice theories and allow federal housing policy to more effectively embrace a plurality of programmatic goals.

The Supreme Court’s recent decision in Hosanna-Tabor Evangelical Lutheran Church and School v. E.E.O.C. declared that the First Amendment “gives special solicitude to the rights of religious organizations.” This recognition of institutional free exercise rights has important implications for religious land uses. The Religious Land Use and Institutionalized Persons Act (RLUIPA) protects religious landowners from the imposition, through a land use regulation, of a substantial burden on religious exercise. Most RLUIPA claims are brought by the religious institution that owns property subject to a regulation. Nonetheless, courts and commentators evaluate these claims by applying a standard derived from cases involving individual free exercise rights. This approach has contributed to the significant lack of clarity regarding what constitutes a substantial burden, leaving property owners and local governments without a firm conception of the scope of land use protections for religious institutions.

This Article contends that courts and commentators have failed to consider the implications of the institutional identity of the vast majority of land use claimants under RLUIPA. Both the concept of institutional free exercise and the treatment of institutions in other land use contexts shed significant light on how to clarify land use protections for religious institutions. Institutional free exercise provides a touchstone for distinguishing between the religious exercise of religious institutions and individual adherents and for understanding the distinct ways in which these institutions experience burdens. The treatment of nonprofit institutions in comparable land use contexts, particularly hardship claims under landmark laws, can help shape an analysis sensitive to the distinct, non-commercial concerns of religious property owners.

The analysis proposed in this Article reframes the interpretation of RLUIPA and provides insights applicable to evaluating hardships on other civil society institutions. It also offers broader insights into the relationship between religious institutions and the state and a starting point for further scholarship on how Hosanna-Tabor and the concept of institutional free exercise should affect institutional claims in other contexts.

This Article analyzes the tensions between the anti-assignment provision of the Social Security Act-which exempts benefits from garnishment by creditors seeking payment for outstanding debts-and state-law garnishment procedures. Although federal law explicitly prohibits the garnishment of Social Security and other federal benefits, recipients routinely discover that these funds, which they believed were safely deposited in a bank account, have been temporarily frozen or, even worse, permanently garnished at the behest of a judgment creditor. The problem has been exacerbated in recent years as the collection industry has grown and changes in state laws have made it easier for creditors to garnish bank accounts. At the same time, increasing numbers of benefit recipients are receiving direct electronic deposits, further complicating matters.

Banks, seeking to avoid liability under state law, typically comply with garnishment orders and automatically freeze accounts. This often causes substantial hardship for low-income benefit recipients, who can be left for weeks without access to funds they rely upon for subsistence. A few states have attempted to remedy the problem through legislative and administrative solutions, with mixed success. Congress has also recently held hearings on the issue and federal agencies have proposed a possible response. This Article analyzes these efforts and discusses their limitations before urging a federal legislative response in the form of a five-part policy proposal.

The article expands upon an unpublished working paper written with support from the National Academy of Social Insurance and the Rockefeller Foundation through their Strengthening Social Security for Vulnerable Groups project.

This Article builds upon prior work providing an intellectual and legal history of the early development of single-family zoning. In the early twentieth century proponents of zoning sought to justify what was arguably the most controversial component of zoning ordinances: districts restricted exclusively to single-family residences. This Articles examines how this national discourse over the legal merits of zoning affected debates on the ground in two cities: Seattle, Washington and Boston, Massachusetts. In the context of government deliberation and in the popular press, proponents of zoning in these cities defended this new form of regulation as a valid exercise of the police power: the traditional power of government to regulate in furtherance of health, safety, and the general welfare. They responded to criticism that use districting problematically differentiated between neighborhoods and favored a narrow class of people. Emphasizing the comprehensive nature of their zoning ordinances, they also sought to expand the role of planning experts and encourage deference to expert determinations.

In Boston height limits preceded zoning and debates over their merits foreshadowed early arguments over use districting. In Seattle disputes ensued over whether to have only one residential district or multiple residential districts, and if residential uses were differentiated, whether the most restrictive district should also allow two-family residences. Drawing on archival research, I examine how the justifications for single-family zoning developed by prominent national leaders in the zoning movement were enlisted by zoning proponents in these two cities. This history suggests lessons for contemporary zoning reform efforts.

State attempts to reform and loosen local zoning regulations in furtherance of new housing production often encounter resistance from advocates of local control.  Defenders of local parochialism argue such reforms are insensitive to local conditions and usurp inherent local powers.  Others question the relationships between supply, demand, and pricing. This Essay explores a recent reform in Massachusetts that, despite its limited scope, significant deference to local decision making, and expected modest contribution to housing supply, has faced some pushback.

Massachusetts’ 2021 MBTA Communities Act (MBTA-C) requires local governments to zone for a district of reasonable size, within one-half mile of transit, in which multi-family zoning at a minimum gross density of 15 units per acre can be built as of right.  Guidelines issued by a state agency pursuant to the statute specify how many units of multi-family housing each municipality’s zoning must permit. Critics have assailed the law as an assault on local control of land use.  These critiques are misplaced for multiple reasons.  First, the law maintains significant local control over zoning.  While municipalities must rezone to create a district (or set of districts) of a reasonable size and that allow a certain number of units of housing to be built, they have significant latitude in determining the location and precise details of these districts.  Second, zoning is not legally or historically a sovereign power of local governments, as some critics suggest.  Instead, zoning is instituted subject to the state’s police power, which it delegates to local governments.  It must be exercised in furtherance of the common good of the state. 

In sum, the MBTA-C law represents a modest reform that, in contrast with bolder interventions in other states, channels, rather than displaces or preempts, local decision-making.  It channels the local exercise of the zoning power in furtherance of vital statewide interests the police power serves.  While this approach is clearly within the scope of the state’s authority, it is ultimately too modest to significantly address the demand for new housing supply.  Massachusetts can, and should, go further to remove local zoning barriers.

This book review, written for the ABA Journal of Affordable Housing and Community Development Law, discusses three recent books that examine America’s housing crisis: James S. Burling/s Nowhere to Live: The Hidden Story of America's Housing Crisis (2024), Sara C. Bronin’s Key to the City: How Zoning Shapes Our World (2024), and Jerusalem Demsas’ On the Housing Crisis: Land, Development, Democracy (2024). While all three authors agree that overly restrictive land use regulations contribute to the housing crisis, they differ in their proposed solutions. Burling, a property rights lawyer, advocates reducing government regulations and strengthening protection of private property rights through more robust judicial enforcement of regulatory takings doctrine. Bronin, a former zoning commission chair and a law professor, argues for “smarter zoning” that provides greater regulatory flexibility while still advancing a community vision. Demsas, a journalist, emphasizes democratic failures in local governance, contending that the housing crisis stems from structural problems in how land use decisions are made and who participates in those processes.

Land use and planning law, which to the uninitiated might appear a dry and technical subject, has received increased (and well-deserved) attention in recent years. Land use regulations significantly affect pressing local and national concerns, including housing supply and affordability, regional and national economic growth, social mobility, economic equality, racial integration, and the environment. Growing recognition of the importance of land use and planning law in the United States has given rise to heated discussions regarding the merits of zoning reform, the appropriate scope of local control, the effects of and potential responses to gentrification, and a host of other issues. In this volume leading scholars in law, economics, political science, and planning identify gaps in the existing research regarding specific aspects of land use and planning law and frame questions for future study. In this Introduction, we situate the volume by providing an overview of significant trends in research over the past century. While this Introduction does not exhaust the field, it seeks to provide readers with a representative sample of some of the most influential scholarly work and debates, setting the stage for the chapters that follow.

Furthering Fair Housing provides a detailed account of the long history leading to the 2015 affirmatively further fair housing rule, an evaluation of the short-lived rule’s effects and potential flaws, and a robust set of insights and recommendations for both federal officials revising the rule and local officials tasked with implementing it going forward. This review summarizes the volume’s individual chapters before discussing a few themes that run across the volume. These include, among others, the question of whether to prioritize planning or legal enforcement in crafting the rule, the tensions between mobility strategies and place-based investment, and the proper scope of local control and flexibility in developing strategies to further fair housing.

This invited symposium piece on David Ruccio’s blog, Occasional Links & Commentary on Economics, Culture and Society, briefly addresses Ruccio’s treatment of Catholic theology and social thought and suggests some implications of his writings (and of Marxian analysis more generally) for property law and theory generally, as well as for efforts to reform land-use controls, such as zoning.

This symposium essay applies insights from Professor Lee Fennell’s Slices and Lumps: Division and Aggregation in Law and Life to two distinct issues in zoning and land use regulation. The first is the use of transferable development rights (TDRs). TDRs provide an ideal vehicle for considering the interaction of slices and lumps, the advantages (and disadvantages) of both slicing and aggregating entitlements, and the relationship between what might be termed naturally occurring lumps and the artificial lumps created by law. The conceptual framework developed in Slices and Lumps also sheds light on recent high-profile zoning reforms and the potential for further reform.

Slicing, transferring, and aggregating development rights and recalibrating the scale or unit at which we apply density restrictions can enable new development and increase housing supply. They offer mechanisms for preserving a desirable variety of old and new structures and uses in urban neighborhoods by reducing development pressures on individual lots. At the same time, allowing the addition of new dwelling units to existing single-family lots minimally reconfigures existing lumps in a manner that may not upset the expectations of neighbors grown accustomed to the lumps next door and that may, in the aggregate, also make a significant contribution to the supply of housing. Slices and Lumps provides a rich and rewarding framework for thinking about the costs and benefits of these and other reconfigurations of our existing land uses and their regulatory regimes. 

The sharing economy is grounded — situated in place — in ways that many other recent technological transformations have not been. And, as we have argued in prior work, the sharing economy is a particularly urban phenomenon. Appreciating the place of the sharing economy sheds light not only on the nature of this phenomenon, but also on the regulatory landscape it has engendered.

This chapter, which will appear in the forthcoming Cambridge Handbook on the Law of the Sharing Economy, examines how the political economy of regulation and innovation in this sector has grown more complex as some sharing firms have circumvented local authorities and bargained for more favorable and uniform regulation at the state level. The result has been tensions not just between regulators and the regulated, but in some cases among regulators themselves as states and cities pursue different agendas. The tension between allowing space for local innovation — economic and regulatory — and establishing uniformity and oversight up the geographic scale is not unique to the sharing economy but is increasingly central to understanding the regulatory landscape.

The chapter surveys these tensions and argues for a (cautious) presumption in favor of retaining a strong role for local regulation. While legitimate concerns about local parochialism and capture bear consideration, the advantages of experimentation and the reflection of local preferences auger against overly aggressive state preemption.

This short essay uses four interrelated issues as a framework for examining recent challenges posed by the sharing economy, particularly for urban areas. First, in the realm of short-term rentals there is increasing concern – and a growing set of studies that support it – that as these rentals proliferate across municipalities they are moving existing housing off of the long-term rental market, exacerbating affordability crises in many cities. Second, there is a related concern that short-term rentals are changing the character of existing neighborhoods and undermining the goals of local planning and zoning. Third, in the realm of transportation network companies, a growing body of research links Uber and Lyft to increased traffic congestion in dense urban areas. And fourth, ridesharing services threaten to pull riders away from public transportation, further exacerbating congestion while simultaneously harming cash-strapped transportation systems. The essay considers these challenges in light of the contributions to the recently published Cambridge Handbook of the Law of the Sharing Economy, of which the author is a co-editor, drawing on insights from those contributions and highlighting chapters within the volume of most relevance for zoning and planning law. It then surveys potential responses to these challenges, drawing both on the Handbook and on recent developments in a small number of representative jurisdictions.

This is a review of Evidence and Innovation in Housing Policy, edited by Professors Lee Anne Fennell of the University of Chicago Law School and Benjamin Keys of the Wharton School at the University of Pennsylvania and published in 2018 by Cambridge University Press. The volume contains thirteen essays by scholars from multiple disciplinary and methodological perspectives. Early chapters concentrate on how land use regulations, including historic preservation, constrain new development, reduce supply, and drive up housing costs. The book then shifts to focus on community formation in relationship to both the individual home and urban redevelopment more broadly. Later chapters examine the relationship between housing and personal wealth, as well as the roles that financial regulation and access to credit play in this regard. Concern for housing affordability runs throughout most of the essays. This review, written for the Journal of Affordable Housing and Community Development Law, briefly summarizes each of the thirteen chapters, before highlighting a few themes that run across the volume.

This article, written for the Fordham Urban Law Journal’s symposium entitled Sharing Economy, Sharing City: Urban Law and the New Economy, explores the interaction between the sharing or peer-to-peer economy and new forms of housing, particularly micro-units. Certain components of the sharing economy, such as car sharing and co-working, rely on sufficient demand, typically produced by residents within close proximity to an asset-hub. Trade in the idle capacity of privately-owned goods frequently depends upon potential users sufficiently nearby to render sharing convenient. Land use regulations that permit development of micro-units may increase density to levels that better support a sharing economy infrastructure. The sharing economy is also frequently invoked to explain consumer demand for such units – as potential residents choose to forego space and rely on shared resources. Developers have sought to make micro-units more attractive to potential residents by providing access, sometimes on-site, to car and bicycle sharing. Such resources also may ease worries of neighbors concerned about increased density and some local governments have begun to consider the provision of sharing economy infrastructure in the land use approval process. In addition, certain new forms of residential development more expressly incorporate a culture of sharing and at times explicitly identify as a component of the sharing economy.

Available housing units frequently fail to match the needs of a city’s evolving household forms. In response to unmet demand and illegal units, some jurisdictions have altered regulations to permit the development of different types of housing, including both accessory dwelling units (ADUs) and micro-units. Developers in a variety of jurisdictions, however, have shown interest in both unit types. This Article provides the first comprehensive study of regulatory challenges to both ADUs and micro-units in a geographically diverse range of jurisdictions, focusing on micro-unit and ADU development in New York, Washington, D.C., Austin, Denver, and Seattle. The Article discusses how changing household composition is resulting in a mismatch between housing needs and existing housing supply, and it reviews the claimed benefits and potential criticisms of micro-units and ADUs. Finally, the Article evaluates whether demand for these units is a passing fad or signals a more substantial shift in housing and planning patterns.

In Regulating Sharing: The Sharing Economy as an Alternative Capitalist System, Professor Rashmi Dyal-Chand challenges the assumption – implicit in the fast-growing legal literature on the “sharing economy” – that companies in this sector operate in the manner of traditional firms. Framing the sharing economy as a “nascent form of a coordinated market economy”, Dyal-Chand calls for regulation rooted in a deeper understanding of the institutions – both the technological platforms most commonly associated with the sharing economy (Uber, Airbnb, TaskRabbit, and their ilk) and a burgeoning collection of more organic and democratic organizations — that shape this economy.

This short invited Response focuses on the potential of this second category of institutions to achieve a more equitable distribution of the economic benefits of the sharing economy. While I agree that much can be gained from a more critical reflection on the nature of the institutions that shape the sharing economy, I harbor skepticism regarding the current vitality and future potential of these alternative institutions. I first explore how intermediary institutions might strengthen the position of workers in the sharing economy. I then express a few hesitations regarding the prospects of intermediary institutions to adequately counterbalance the technological platforms that dominate the sharing economy. Finally, I offer suggestions for how, by drawing on discussions of the role of institutions in other areas of legal doctrine; an “institutional turn” in thinking about the sharing economy might inform both legal scholarship and regulation.

This Essay, written for the David G. Trager Public Policy Symposium at Brooklyn Law School, examines the changing role of transferable development rights (TDRs) in New York City. TDR programs allow property owners to sell unused development capacity at their property and transfer it to another site, where it is typically used to increase the permitted size of a development. New York City’s original TDR programs served two central purposes. First, in the form of Zoning Lot Mergers, they operated as a form of density zoning, allowing property owners to shift development capacity within a defined area. Second, they served to offset the burdens imposed by restrictions on development, particularly landmark preservation regulations. In recent years, TDRs have been used in increasingly sophisticated ways. In reviewing these newer TDR programs, we identify three common attributes: an increased focus on directing the location and density at sites that receive development rights; the use of TDRs as an integral component of more comprehensive rezoning initiatives; and the creation of regulatory incentives that strengthen the market for TDRs. We conclude that TDRs in New York can no longer be understood just as a creative mechanism to soften the effect of rigid zoning restrictions, but should be recognized as well as a tool land use decision makers can use in place of, or in tandem with, upzonings, bonuses, and other devices for increasing density. 

The Earned Income Tax Credit (EITC) provides financial assistance to low-income workers through a refundable tax credit. The EITC, which has received strong bipartisan support since its introduction in 1975, now represents the nation’s largest anti-poverty program for non-elderly individuals. In this Note, I contend that the EITC’s historical development failed to account for (and prior scholarly analysis of its impact on labor supply decisions have ignored) the important role of informal employment in the lives of the working poor. This Note presents the first analysis of the financial impact of government transfer and tax programs on the decision to report informal income—income that, were it reported, would be otherwise legal. As the Note’s analysis reveals, while drastic changes in both tax and transfer programs may be necessary to provide financial incentives for many households with children to report informal income, more targeted changes to the EITC could pro- vide strong incentives for childless informal workers to report. The Note argues that the benefits to both individuals and society, financial and otherwise, of tax reporting by low-income individuals engaged in informal work merits reconsideration of the EITC’s overall structure and administration. Administrative and policy innovations described in the Note are also necessary to maximize reporting compliance.