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62 Case W. Res. L. Rev. 81 (2011-2012)
Balancing the Zoning Budget

handle is hein.journals/cwrlrv62 and id is 85 raw text is: BALANCING THE ZONING BUDGET
Roderick M Hills, Jr. t
David N. Schleichertt
The politics of urban land use frustrate even the best intentions. A
number of cities have made strong political commitments to
increasing their local housing supply in the face of a crisis of
affordability and availability in urban housing. However decisions to
engage in up-zoning,yor increasing the areas in which new housing
can be built, are often offset by even more down-zoning, laws that
decrease the ability of residents in a designated area to build new
housing as-of-right. The result is that housing availability does not
increase by anywhere near the amount that elected officials promised
In this Article, we argue that the difficulty cities face in increasing
local housing supply is a result of the seriatim nature of local land-
use decisions. Because each down-zoning decision has only a small
effect on the housing supply, citywide forces spend little political
capital fighting them, leaving the field to neighborhood groups who
care deeply. Further, because down-zoning decisions are made in
advance of any proposed new development, the most active interest
group in favor of new housing-developers-takes a pass on
lobbying. The result is an uneven playing field that favors down-
Drawing on examples of extra-congressional procedure like the
federal base closing commissions and the Reciprocal Trade Act of
1933, we argue that local governments can solve this problem by
changing the procedure by which they consider zoning decisions.
t William T. Comfort, Ill, Professor of Law, New York University Law School.
tt Assistant Professor of Law, George Mason University Law School. The authors would
like to thank Vicki Been, Steve Eagle, Bruce Johnsen, Josh Wright and the participants in the
Manne Faculty Forum, the Virginia Junior Faculty Forum, and the Levy Fellows Workshop at
George Mason for their comments and advice.


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