In a helpful recent Vox article, Rachel Cohen suggests the "YIMBY" ("yes in my backyard") housing deregulation movement may be "divided against itself":
These days, it seems as though everyone is something of a YIMBY: a "Yes in My Backyard" activist advocating for more housing and fewer barriers to making that happen…
Yet as three recently published books reveal, this YIMBY-ish agreement across the political spectrum can mask deeper divides, including about property rights, community development, and the very meaning of democracy in housing policy. Escaping the Housing Trap by urbanists Charles Marohn and Daniel Herriges of Strong Towns advocates for a slower-paced, locally driven form of development that they believe will be more sustainable over the long term. On the Housing Crisis by journalist Jerusalem Demsas challenges this kind of incrementalism, arguing the severity of today's housing shortage demands bolder intervention. And in Nowhere to Live, James Burling, a lawyer with the libertarian Pacific Legal Foundation, frames the housing shortage as the result of diminished respect for private property, something he argues will have to be reversed for any real change.
Read together, these new books tell us that while it has become mainstream to say that America needs more homes — and even to acknowledge that zoning rules and self-interested homeowners play a role in blocking new housing — there's not a clear consensus about what kinds of homes we should build, how we should build them, and who should decide where they go. While it's tempting to think a pro-housing consensus at least forecasts positive changes, the authors say a close read of history should leave us unconvinced that policymakers will ultimately take the necessary steps for reform. There's an opportunity, but we should be clear-eyed about the obstacles.
I agree there are various tensions within the YIMBY movement. But they are not as great as Cohen suggests. Legislation and constitutional litigation are not mutually exclusive paths to curbing exclusionary zoning. To the contrary, the history of previous reform movements shows they are mutually reinforcing. Each can help advance the other. Josh Braver and I discuss this in our recent Texas Law Review article, which explains why exclusionary zoning violates the Takings Clause of the Fifth Amendment, and also describes synergies between litigation and political reform efforts. For a shorter version of our argument, see our June article in the Atlantic.
Some progressive YIMBYs may object to supporting judicial review of "economic" policies like zoning. But, as Braver (himself a progressive constitutional theorist), and I explain, judicial invalidation of much exclusionary zoning is well-supported by a variety of progressive "living constitution" theories, as well as by originalist ones.
Local and state-wide reform efforts also aren't mutually exclusive, though - like Cohen - I am skeptical that the former are likely to be highly effective, given the disproportionate power of "NIMBY" forces at the local level. I also agree with Demsas and Burling that we need more sweeping reforms than most localities are likely to be willing to enact on their own. That said, YIMBYism is actually the ultimate "localism," in so far as it lets each property owner decide how to use his or her own property. That's a greater degree of decentralization and local control than letting zoning boards and other munincipal government agencies decide.
There are unavoidable internal tensions in a YIMBY movement that draws on people with widely divergent interests and ideologies. But those disagreements need not be as severe as they sometimes seem. Reform should be pursued on multiple tracks, not just one.
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