Category Archives: Pacific Legal Foundation

Frozen Land isn’t navigable water (despite what the Clean Water Act says)

Richard Schok owns a pipe fabricating company in North Pole, Alaska. After decades of building a successful business, Richard decided to purchase property to relocate and expand his company. The new property was next to a junk car dealer, a scrap metal dealer, and a concrete product supply company. Not exactly the pristine wetlands one thinks of when hearing about the Clean Water Act.

Unfortunately for Richard, the Army Corps of Engineers decided that his property was a wetland under the Clean Water Act. The agency decided that the property (despite being bordered by other businesses) was adjacent to a navigable water body because the town of North Pole is located between two rivers. Even worse, the only “wetland” the Army Corps found on Richard’s property was permafrost—land that’s frozen all year long.

PLF represented Richard and his company and challenged the Army Corps’ determination that frozen land is navigable water under the Clean Water Act. Unfortunately, the courts ruled against him, and it looked like he couldn’t follow through with his business plans.

But earlier this year, the Trump administration adopted a new rule about what land is regulated under the Clean Water Act. The new rule is far from perfect, but it does make several improvements. Richard is one example of how the new rule can help small business owners.

The new rule changes how the Army Corps and the EPA determine whether a wetland is “adjacent” to a body of water and, therefore, can be regulated by the agencies. Specifically, the new rule says that, when a road or other barrier separates a wetland from a river or stream, that wetland will not be covered by the Clean Water Act. That means Richard’s property, which is surrounded by other industrial businesses, is outside the Army Corps’ jurisdiction.

Based on the new rule, Richard asked the Army Corps to reconsider its determination that his property is covered under the Clean Water Act. Earlier this month, the Army Corps agreed that it could not regulate the property. While the Army Corps still views permafrost as a “wetland,” it can no longer regulate the permafrost on Richard’s property.

Pacific Legal Foundation Article dated Dec 1 2020

Opinion – New York Daily News: Canceling rent won’t solve housing woes

As Americans stagger through a bewildering pandemic summer, buffeted by shutdowns and job losses, millions face each coming month with an additional dread: making their rent payments.

In response to the crisis, numerous states and localities have enacted eviction bans and rent deferral schemes. Unfortunately, such extreme measures are unjust, unlawful and counterproductive.

Governments have taken varied approaches to the threat of people being ousted from their homes en masse. California’s courts closed their doors to all eviction proceedings, even if the reason for eviction had no relationship to the pandemic. Seattle banned evictions related to non-payment so long as a tenant can “self-certify” they aren’t paying rent due to economic hardship brought on by the pandemic, and landlords must allow tenants 18 months from the end of the city’s state of emergency to repay that money. And Ithaca, N.Y., became the first — but likely not the last — city to attempt to forgive rent altogether.

While it may seem intuitive to absolve renters of their obligations during an emergency, such laws force one group to bear the burden of the crisis: landlords. They don’t get much sympathy, but landlords are often ordinary people facing the same challenges we all face. Continue reading

Strengthening property rights will improve affordable housing in America’s cities


Our nation is in the midst of a severe and ever-worsening housing crisis. For decades, we have seen far too few homes being built. And those homes that are built are often too expensive—particularly in major urban centers, where poor and middle-class families increasingly find themselves priced out of homes and apartments located near the best jobs, schools, and other opportunities. Indeed, a recent article from The Washington Post reports that “in recent years prices for the lowest-priced houses have grown consistently twice as fast as prices for the highest-priced houses and now exceed what many families of modest means can pay.”

This crisis largely finds its roots in unnecessarily restrictive zoning laws, such as exclusive large lot zoning, which creates an artificial shortage in buildable land by limiting what type of homes can be built and where they can be located. These zoning rules are often the most restrictive in the very communities that have the most pronounced need for new housing, like Los Angeles, where an “affordable” apartment can fetch up to $1 million.

Making matters worse, local governments often look at new development as an opportunity to raise funds for public projects like public housing, new parks, or infrastructure improvements. Thus, in areas like Seattle, the regulatory fees needed to secure a building permit are estimated to make up over half the purchase price of each new home. Although these fees are often justified as providing public benefits at no cost to the general public, they actually exacerbate the affordable housing crisis. In West Hollywood, for example, the city demanded that the owner of a proposed small 10-unit affordable apartment project pay over a half-million dollars in “affordable housing” fees, which drove up the cost of each unit. In order to make a profit in this circumstance, the owner, like many other developers, was compelled to abandon his focus on affordable units in favor of high-end residences that could cover the additional costs.

The solution to this problem is clear: we must free property owners and developers to build more homes—especially in those communities that have been marginalized by past zoning policies. When combined with rolling back unnecessary fees, such action will encourage the type of entrepreneurship that will result in new housing being developed at all price points. It’s a simple solution that is proven to work. Continue reading

Will the voters freeze new housing development in November?

If a poison causes a disease, the obvious cure has to be even more poison, right? To most of us, that prescription sounds insane—but it’s a fair description of California’s approach to addressing the disease that is the state’s affordable housing shortage. Because much of the existing shortage is caused by government interference with the housing market, the solution, some people reason, must be even more government meddling.

That certainly seems to be the theory behind the misleadingly titled “Rental Affordability Act” appearing on California’s November ballot. This latest misguided scheme, which would allow cities to enact rent control caps on most homes at least 15 years old, will only worsen the affordable housing crisis.

Why is affordable housing such a problem in California? There are a variety of reasons, including restrictive zoning laws, environmental restrictions and other regulatory burdens, punishing impact fees, and NIMBY opposition from other landowners.

But when it comes to building new apartments, one disincentive looms above all others: rent control. Rent control first arose in California in the 1970s in response to changing residential demographics. With a scarcity of affordable single-family homes, more Californians moved into apartments. That, in turn, led to a shortage of apartments. With the supply low and demand high, rents correspondingly rose. In response, liberal enclaves like Santa Monica and San Francisco imposed rent control schemes.

The impact on housing supplies was predictable: Builders feared losing money in rent-controlled jurisdictions, so they took their business and investment elsewhere.

In 1995, the legislature stepped in to limit the damage by passing the bi-partisan Costa-Hawkins Rental Housing Act. That law prohibited cities from imposing rent control on single-family homes and condominiums. Most importantly, newly built apartment buildings would be free from rent control. Moreover, once an existing tenant vacated a rent-controlled apartment, the rent could be reset to match market conditions. While too many other restrictions remained in place to fully address the housing shortage, it did help. More new apartments were built once developers knew they’d be free from rent control.

Until now, that is. In 2018, a group of activists tried to use a ballot measure to toss Costa-Hawkins and allow rent control to be imposed throughout the state. Fortunately, that proposal lost overwhelmingly, with 62% of California voters rejecting the new rent control scheme.

Now the same activists are back with a slightly scaled-back version. Once again, they want to toss Costa-Hawkins and make rent control safe for ambitious politicians. If they get away with it this time, it will make California’s housing crisis much worse than it already is.

Economists are in near-universal agreement on rent control: In a 2012 survey of professional economists, 98% agreed that rent control doesn’t work. By making housing shortages worse, rent control forces prices higher. Any benefit to those living in rent-controlled apartments is more than offset by higher housing costs for everyone else. Even left-leaning economist Paul Krugman warns of the perils of rent control, calling it “predictable” that in a rent-controlled environment there will be “sky-high rents on uncontrolled apartments, because desperate renters have nowhere to go—and the absence of new apartment construction, despite those high rents, because landlords fear that controls will be extended.”

A recent study of San Francisco, where  older apartments are largely free from the effects of Costa-Hawkins, found that rent control failed to keep costs low, and instead resulted in a net loss of affordable housing units. Again, this was predictable: When prices of any good are forced below the market price, the demand for the price-controlled good increases, while the incentive to supply that good decreases. A shortage develops.

And the Rental Affordability Act, if passed in November, will have precisely the same effect. We’re all familiar with the old saying that “the definition of insanity is doing the same thing over and over again and expecting a different result.” There’s no better illustration of that principle than this latest effort to dress up failed rent control schemes as a solution to the affordable housing crisis. Here’s hoping voters get the message and reject this poisonous ballot initiative, so we can focus on solutions that will actually improve the situation, like changes to zoning laws and regulatory reform that will allow for more new construction.

Pacific Legal Foundation article July 09, 2020 By JAMES BURLING



WSJ: Seattle and the State Supreme Court Wage War on Property Rights

Landlords are forced to rent to the first person who walks in—even if he has a criminal record.

Affordable-housing shortages are an abiding challenge for cities around the nation. But often policies meant to alleviate the problem aggravate it instead. That’s certainly the case in Seattle, where the City Council imposed a pair of ordinances aimed at restricting property owners’ right to choose their tenants.

These misguided laws, recently upheld by the Washington Supreme Court, attempt to solve problems caused by the housing shortage by destroying property rights. Property owners in other cities should take note: Such reforms have a tendency to spread once they take root.

The two ordinances in question strip landlords of the right to decide who will occupy their property. Seattle’s “first in time” rule requires landlords to set rental criteria in advance and then rent to the first person who walks in the door with an adequate application. There are plenty of good reasons a landlord might prefer a different tenant, including socially beneficial ones such as a desire to help a struggling family.

The second law prohibits a landlord from inquiring about or considering an applicant’s criminal history—deemed an “unfair practice” that can subject the landlord to severe civil penalties. The federal government requires background checks for federally assisted housing, and for good reason: Criminal history bears directly on factors like reliability, creditworthiness and safety.

Both Seattle laws purport to reduce discrimination in housing and help beleaguered minorities, even though there’s no evidence that Seattle landlords engage in widespread discrimination. Taken together, these laws thrust landlords blindly into long-term lease relationships with renters they didn’t choose.

A small band of mom-and-pop landlords, represented by the Pacific Legal Foundation, sued the city over both ordinances. Marilyn Yim owns a triplex in Seattle. She lives with her husband and children in one of the units and rents out the other two. She shares the yard and her home with her tenants, so she has understandable concerns about compatibility and safety. Plus, she’s occasionally had to help her tenants find roommates. She has always considered a criminal-background check an essential service she provides a tenant looking for a roommate, for obvious reasons that apparently elude the Seattle City Council.

Another plaintiff, Kelly Lyles, is a single woman and local artist whose income derives mostly from a small single-family home she inherited from a relative. She’s also a survivor of multiple sexual assaults and domestic violence. The City Council barreled onward with its first-in-time rule and the ban on criminal-background checks despite Ms. Lyles’s tearful plea.

These plaintiffs challenged both laws as violations of their property rights under well-established Washington state case law. Washington courts have recognized that if government regulation destroys a “fundamental attribute” of property ownership, the regulation amounts to an unconstitutional taking unless the government compensates the owner. And if a regulation of property is “unduly oppressive,” Washington courts have traditionally struck it down as a violation of due process. But in a remarkable pair of decisions issued Nov. 14, the state high court mowed down longstanding protections for property owners by overturning 61 of its own prior decisions. By clear-cutting decades of decisions protecting property owners from overregulation, the court forged a path for two of the most radical housing regulations in the nation.

Courts are usually cautious about overturning precedent. A court that goes out of its way to overturn 61 cases in a single go seems intent on making the point that no constitutional right is secure if it conflicts with the orthodoxy of the day. Now Washington property owners will have to turn to the notoriously labyrinthine and hostile world of federal takings law for relief, and the city government is free to oppress property owners so long as the oppression has a “rational basis.”

Landlords aren’t the only victims. Renters will suffer too. As owners like Ms. Yim and Ms. Lyles flee the housing market because they can’t bear the regulatory burden, the contraction in supply will further inflate rents. Remaining landlords will raise prices even more to underwrite the risks they face because they can’t adequately vet rental applicants.

Meanwhile, Seattle officials, emboldened by this win, will continue churning out false solutions that pander to their collectivist constituency, comfortable in the knowledge that longstanding constitutional protections aren’t the obstacles they once seemed.

But the fight isn’t over. Pacific Legal Foundation will ask the U.S. Supreme Court to review the first-in-time case and affirm that Seattle landowners do, in fact, have property rights protected by the Constitution. And the criminal background check case will now go to a federal district court, which may yet state the obvious: Property owners should have some say over who occupies their land. Until then, the state court’s decision means the housing crisis in Seattle will only grow more severe.

Pacific Legal Foundation article January 31, 2020 I By ETHAN BLEVINS

This op-ed was originally published by The Wall Street Journal on January 31, 2020.


Yim v. City of Seattle
May 01, 2018

The Hill: Local governments are undermining state laws that encourage ‘granny flats’

It’s well known that California is in the midst of a housing crisis that grows more severe all the time. For decades, we have seen too few homes built, and those that are built are too expensive. The poor and middle class suffer the most from the housing shortage, increasingly finding themselves priced out of homes and apartments located near good jobs and schools.

This problem has been well documented, so there is no excuse when our cities refuse to allow individuals to take steps to alleviate the housing shortage. Yet communities across California continue to oppose the simplest of housing reforms: allowing property owners to build accessory dwelling units, or ADUs, commonly known as “granny flats” or “in-law apartments.”

As far back as 1981, the state legislature recognized that the lack of developable land is one of the key obstacles to increasing housing supply. There is land available to build on in California cities, but zoning codes strictly limit the use of undeveloped land. To open up more capacity, California adopted a statewide law that legalized the production of ADUs.

It was a win-win solution. By legalizing ADUs, the state unlocked previously unusable land, resulting in a massive increase of potential housing. Owners could build a rental unit to help with their mortgage payments, or build a cottage where their parents could age in place. Better yet, the cost of an ADU is typically a fraction of a stand-alone house or apartment unit, resulting in the potential for new affordable housing.

Many cities, however, continued to resist this modest reform, even as the housing shortage reached critical mass. So the state pushed back again in 2016 and 2019, amending the law to require — rather than request — that cities allow ADU development as a right of ownership. The state law directs California cities to approve ADU permits that satisfy certain conditions, such as unit and lot size, without the lengthy and costly process typical of building permits.

Communities that implemented this law, such as Los Angeles and San Diego, have seen a surge in the production of new affordable housing. But still, the state’s ADU mandate wasn’t enough to convince many cities to take the plunge into granny flats.

In San Marino, for example, Cordelia Donnelly applied for a permit to build an ADU above her detached garage. Although her proposal met all of the state requirements, city officials still rejected it because, under the city’s strict standards, Donnelly’s lot was too small, her proposed ADU was too big (the same footprint as the garage), and her garage was too close to the house.

Donnelly has petitioned San Marino’s decision to the California Supreme Court, arguing that the city cannot adopt standards that ban exactly what the state allows by right. The court’s decision about whether to take her case will have significant implications for meaningful housing reform.

San Marino’s situation highlights one of the root causes of the housing crisis: needlessly restrictive zoning laws result in fewer homes being built, with those that are built carrying higher price tags. The word “needlessly” is intentional. The only justification for the city’s strict ADU rules is to protect established neighborhoods from change that could result from building more affordable homes. It is a policy of exclusion.

The exclusionary character of single-family zoning can be seen clearly in Village of Euclid v. Ambler Realty Co. (1926), in which the U.S. Supreme Court upheld a zoning law that barred multi-family residences. The court concluded that apartments are a “parasite” because they “take advantage of the open spaces and attractive surroundings created by the residential character of the district.” Simply put, zoning excludes new people and opportunities from coming into the community. Such a policy has no place in modern society.

Donnelly’s case shows that reform often occurs at the fringes. While the ADU option will provide a limited number of homes for a limited number of people, their legalization has the potential to open the door to much broader reform that can spur housing production.

The state’s decision to streamline the permit approval process by recognizing a right to build ADUs on residential-zoned property has removed much of the cost, time and uncertainty that continues to drive up housing costs and rent. If California were to extend the same type of recognition to other types of homes, the state could potentially turn a modest reform into a housing revolution.

Pacific Legal Foundation article June 22, 2020 By BRIAN HODGES. This op-ed was originally published by The Hill on June 22, 2020.


Donnelly v. City of San Marino
May 19, 2020

The Orange County Register: COVID-19 has exposed the extent of the affordable housing crisis. Here’s how to start fixing it.

Restrictive housing policies put low-income city residents at risk during COVID-19
April 30, 2020 I By JAMES BURLING

The Government-Created Housing Shortage
April 07, 2020 I By LARRY SALZMAN


Opinion: Rebuilding economy will require rethinking government’s role

To better understand the recent surge of criticism and resistance against government-mandated lockdowns and stay-at-home orders, take a closer look at the Commerce Department jobs report published last week.

In April, the United States lost a staggering 20.5 million jobs, with the unemployment rate skyrocketing to 14.7 percent.

Those numbers suggest the economic costs of the COVID-19 pandemic response will be staggering. The losses will be compounded by the countless number of small businesses that will likely never reopen, diminished household incomes and savings, and massive public debt.

As the hard work of rebuilding the economy begins in the months to come, one lesson should be clear: The way forward will require government to get out of the way so that the private sector can focus on building, producing and innovating. And the most important contribution the government can make to the recovery is to reduce the senseless laws and regulations that restrain growth.

To be sure, the government has played a significant — though sometimes controversial — role in the pandemic response, through its power to coerce and restrain.

Imposing quarantines, shutting down businesses, sending stimulus checks and issuing stay-at-home orders are genuinely debatable steps, but perhaps they were necessary, at least in the short term, to address a public health emergency marked by unknown risks.

But we’ve also seen substantial evidence that the government’s regulatory powers have made things worse. Across a wide range of areas — restricting healthcare licensing regimes, barriers to entrepreneurship and misguided land use regulations — government policies are hurting more than they’re helping.

Right now, especially as states and localities begin phased reopenings, is an ideal time to rethink many of the policies that hold back growth and innovation. The organization I lead, Pacific Legal Foundation (PLF), published a report detailing four areas in which federal, state and local government leaders can help by simply getting out of the way.

First, it’s time to liberate the healthcare sector by ending counter-productive regulations.

For years, we’ve fought to end “certificate of need” laws, which prohibit healthcare providers from increasing the supply of services without permission from the government. These changes would bring more entrepreneurial energy into the healthcare sector, where such energy is desperately needed to respond to new challenges.

Likewise, PLF has called for easing the restrictions on healthcare professionals working across state lines and reforming licensing laws for healthcare workers, both of which would allow these vital service providers to adapt to changing conditions and shift resources to where the better belong.

Second, we’ve appealed to lawmakers to lift restrictions on entrepreneurship so that Americans can get back to work.

By reducing the burden of occupational licensing requirements, liberating freelancers and gig workers to pursue their chosen work, and lifting restrictions on home-based businesses, governments will unleash a wave of entrepreneurial energy that will make it easier for American workers to get back on their feet.

Third, PLF makes the case that protecting property rights are key to expanding economic opportunity.

Easing restrictive policies like occupancy restrictions, unnecessary limits on development and endless permit reviews will go a long way toward boosting the recovery, while at the same time addressing the need for more affordable housing. Sheltering in place, after all, requires shelter. In addition, we need to speed the ability to redevelop and repurpose shuttered offices, hotels, and other businesses.

Finally, we’ve advocated for reducing the role of administrative bureaucracy over American life.

While entrepreneurs and workers look to step up to create the new businesses and opportunities that will move the economy toward recovery, it’s time we diminish the power of regulators, rule makers and bureaucrats.

Reducing outdated and burdensome regulations, and restoring the constitutionally required separation of powers that limits government authority, will be critical steps in transferring more control and responsibility to the people, and away from Washington and state capitals.

The public health emergency we’re facing isn’t over, but we must begin thinking about what comes next.

The private sector will have to lead the way to get the economy back on its feet. Government at all levels — federal, state and local — should focus on doing what it can to step aside so that the nation’s entrepreneurial energies can be unleashed.

Otherwise, the coronavirus tragedy will be further compounded by economic disaster.

This op-ed was originally published by InsideSources on June 3, 2020.

Pacific Legal Foundation Op-Ed June 03, 2020  By STEVEN D. ANDERSON

Trump’s New ‘Navigable Waters’ Rule Is an Improvement, but Still Murky

The Trump administration published this spring its new definition of “navigable waters” (also known as “waters of the United States”) under the Clean Water Act.

The long-awaited action reversed course on decades of bureaucratic overreach by the Environmental Protection Agency and by the U.S. Army Corps of Engineers, the EPA’s partner in the abuse of property rights.

Those two agencies misused their Clean Water Act authority to control private property well beyond the limits set by the Constitution and congressional authorization. Those abuses culminated in a 2015 regulation by the Obama administration, widely referred to as the “waters of the United States” rule.

The new rule, published April 21, is a significant retreat from the extreme land grab that prior administrations carried out under the Clean Water Act. Fewer acres of remote or physically isolated wetlands will fall under EPA control. Fewer homebuilders will need the Army Corps of Engineers’ permission to provide housing. Continue reading

The Government-Created Housing Shortage

The American spirit is synonymous with a can-do attitude—we are builders, creators, and innovators. The remarkable construction of New York’s legendary Empire State Building symbolizes that spirit: from start to finish, the completion of this American landmark took a single year.

But that spirit now seems diminished. Many U.S. cities face a housing shortage thanks to prohibitive and heavy-handed regulations pushed by local governments—and the shortage has pushed median rents and purchase prices too high for ordinary incomes to afford.

The way to make housing more affordable is to build more housing. Americans of yesteryear could have made short work of the problem: build, baby, build!  But as PLF’s cases show, property owners and developers today must navigate a minefield of land-use regulations that stymie or punish development. The result? Dwindling new construction of homes, higher costs, and, ultimately, stagnation.

Consider a few examples:

  • For years, PLF litigated against “urban growth boundaries” in Seattle, which constrained the supply of housing by effectively prohibiting homebuilding beyond a politically-established ring drawn on a map around the city.
  • Or PLF’s recent case involving small developers Jonathan and Shelah Lehrer-Graiwer in West Hollywood, California. They bought several lots with older single-family homes, which they wanted to demolish and replace with an 11-unit condominium complex. City officials welcomed the project because it increased the housing supply. The city then demanded an extraordinary fee of more than a half million dollars as a condition of the building permit to subsidize a government-run affordable housing program.
  • Or consider a case out of Berkeley, California, where the city blocked the construction of a large, modern apartment building by abusing an “historical preservation” ordinance to prohibit the property owner from first razing a smaller, aging apartment building. The city justified its decision on the grounds that it was important to preserve the last wood-shingle-sided apartment building in the city.

These anecdotes merely hint at the gauntlet property owners face today when exercising their right to build on their own land.

Cities and counties throughout the country routinely require lot sizes of one, five, or even more acres per home; they demand the dedication of free “open space”; they prohibit multi-family housing in large segments of a community; they demand all manner of studies, fees, and restrictions under the guise of environmental restrictions with dubious connection to public health or safety; and they wield zoning ordinances so detailed that they effectively allow the government to control the style, building materials, and even landscaping of every home proposed.

In New York, an estimated 40 percent of today’s buildings could not be built again under the state’s complicated and prohibitive land-use laws. Some of America’s most loved historic neighborhoods in other large cities, like the Los Feliz neighborhood of Los Angeles, Boston’s Beacon Hill, or New Orleans’ French Quarter are effectively outlawed in our modern regulatory state. Beyond cities, many suburban land-use policies are arguably worse, as the cases of Seattle and West Hollywood above suggest.

All this has the predictable result of creating skyrocketing prices in the most regulated cities. Prohibitive local regulations act like a tax, sometimes adding 50 percent or more to housing prices, according to Wharton economist Joseph Gyorko. Left-leaning economist Paul Krugman has pointed out that California’s high housing prices “owe a lot to policies that sharply limit construction.”

But it doesn’t have to be this way. Houston, Texas, for instance—one of America’s largest and fastest growing cities—has one of the nation’s most lightly-regulated housing markets, allowing for an orderly but relatively free market in housing production.

Many people today find their budgets stretched to put a roof over their head—maybe including you or your children or your grandchildren—and can’t afford to live in the neighborhoods where they grew up. The root of that problem is regulation, which needlessly limits the supply and raises the cost of housing. The only long-term solution lies in respect for property rights and a renewal of the American spirit of building.

Pacific Legal Foundation Article  of April 07, 2020 By LARRY SALZMAN




Restrictive housing policies put low-income city residents at risk during COVID-19

In the 19th century, epidemics and crowded tenement housing went hand in hand. Cholera, smallpox, and even the bubonic plague swept through America’s slum housing in numbers that make the COVID-19 epidemic seem like a case of the sniffles.

Unfortunately, today’s housing policies in many urban areas make low-income and minority city residents most at risk of catching infectious diseases. And as the COVID-19 pandemic’s tragic results in cities like New York have now made clear, housing and zoning reform is one of the best ways to protect many city residents.

As early as 1820, the link between overcrowded housing and health was established in official reports, according to A History of Housing in New York City, by Richard Plunz. He notes that one out of every 27 New Yorkers died in 1859, as a result of “urban killers” like cholera, smallpox, typhoid fever, malaria, yellow fever, and tuberculosis.

In 1890, an influential reformist book, How the Other Half Lives, by Jacob Riis, chronicled tenement living with as much contempt for the bad housing as for the people who lived there. Riis described, block by block, the overcrowded, unsanitary housing, while criticizing the poor, ethnic residents as “content to live in a pig sty,” ignorant, lazy, thieves, beggars, tramps, drunkards, greedy, stupid, and so on.

Riis noted that the tenements were “hot-beds of the epidemics that carry death to rich and poor alike.” And that prejudiced outlook drove much of the urban housing reform movement: It was one thing for the “contemptible” classes to die in their slums but quite another for their diseases to spread to “respectable” Americans.

Housing reform throughout the 19th and 20th centuries had a common tactic: The best way to address the problem was by getting rid of the poor, and the best way to get rid of the poor was to get rid of their dwellings. Indeed, the primary reason conservative members of the Supreme Court voted to uphold one of the nation’s first zoning laws in 1926 was to prevent the spread of “apartment houses,” as the slum tenements were known, because they would become parasitic nuisances in otherwise-nice neighborhoods.

In more recent times, “urban redevelopment” and central-city highway construction had a particularly adverse impact on minority neighborhoods. Much poor and working-class urban housing was destroyed, but little was rebuilt.

But whether it was early reform efforts to punch windows in airless apartments, mandating air shafts, or setting minimum building standards, there were gradual improvements. These reforms, combined with economic growth and modern medicine, did much to relieve the urban overcrowding and disease so prevalent in the 19th and early 20th centuries.

That history makes today’s zoning and land use policies appear quite ironic. Instead of allowing people to create and move to lower-density housing if they so choose, today’s planners and politicians strive to pack more people into denser cities, serviced by crowded rail and bus systems. This is all necessary, we are told, to protect environmental habitat and save the climate.

Thus, urban growth lines have been drawn, outside of which—in some cities, such as Portland—it is nearly impossible to build. Urban economist Randal O’Toole has described this so-called “smart-growth” planning model as one that is not building for the American dream, but as the title of his book puts it, for the American Nightmare: How Government Undermines the Dream of Home Ownership.

But the irony on top of irony is that environmental and zoning restrictions have reduced new home and apartment construction in coastal regions to a fraction of what is needed to maintain existing population trends. As a result, existing housing has become outrageously expensive. Families once again are doubling up. Worse, our streets are filling with homeless encampments as bad as any of the slums of the 19th century.

And like those slums of yesteryear, the homeless camps are becoming beset by illness, through no fault of the people forced to live in them. Diseases once thought eradicated from America are back with a vengeance, as cases of antibiotic-resistant tuberculosis and cholera surge among the homeless. Now, with COVID-19, some of the homeless are being sheltered in empty hotel rooms in order to protect the rest of us. But how long will this stop-gap altruism last?

And even aside from the homeless camps, dense urban living is far from ideal. With greater density comes greater crime, worse schools, and more opportunity for disease. With COVID-19, who wants to ride on a crowded train or bus, if given a choice? How many social-distancing urban dwellers cooped up in small and crowded apartments would not rather live elsewhere?

Don’t let the past be our future. Unless we free up the housing markets and let people build and buy the homes they want to build and buy, conditions in the urban core will only get worse. Instead of planning our way back into the 19th century, we should build into the 21st.

Pacific Legal Foundation Article April 30, 2020 I By JAMES BURLING