Chapter 6 explores five outlier cases, called “The Unfortunate Five,” in which the US Supreme Court rejected landowners’ challenges to land use and environmental regulations despite the Court’s strong protection of private property rights against regulations generally. These five cases have one factor in common: the developers’ plans to build affordable housing. After exploring the potential that Supreme Court justices are motivated by explicit race and class biases, the chapter delves into the potential for implicit bias to explain why these cases deviate from the norm: the justices believe that they are protecting the private property interests of neighboring landowners against unwanted affordable housing developments. Strategies are proposed, based on a number of empirical studies, for convincing courts that affordable housing does not pose a threat to the property values of nearby landowners and that, therefore, many government policies reflect an unconstitutional, irrational prejudice against low-income people of color who need affordable housing and the developers who seek to build it.

Chapter 9’s case study of a major market-driven development project in Baltimore, the Port Covington project, explores how racial segregation and economic segregation are implicitly assumed to be normal parts of zoning’s spatial ordering of American cities. Inner cities are now places where private developers in a global neoliberal economy seek to use both public and private investments to create new exclusive, elite spaces for higher wealth consumers. Port Covington, a forty-two-block multi-use redevelopment of a vacant industrial site, is one such example on a massive scale. Although Baltimore’s relatively weak inclusionary zoning ordinance forced the developers to agree to include a limited number of affordable housing units in its new development plan, there were no discussions about whether or how to remedy Baltimore’s racialized geography and its legal and policy history of segregation, exclusion, and unequal opportunity. Major land-use decisions should not only embrace mixed-income and mixed-use policy goals but also government-provided affordable housing units and robust inclusionary measures to redress the subordinating dynamics of entrenched structural racism in local zoning.

There is a substantial difference between the housing that older Americans prefer and the housing that the market supplies. While market failures and seniors’ resource constraints explain part of this mismatch, zoning laws, Medicare and Medicaid reimbursement policies, and health law also loom large. Older Americans strongly prefer to age in place, in home-like environments. This chapter focuses on two types of housing that facilitate that manner of aging: Green House nursing homes and accessory dwelling units. The chapter discusses the substantial benefits for seniors who rely on others for care, and those who can live independently, in these respective kinds of housing. These benefits include substantial health and quality-of-life advantages as well as the ability to maintain connectedness within existing social networks. The chapter further examines the legal impediments to the proliferation of these housing types and the measures that some forward-looking jurisdictions are taking to facilitate their growth.

This chapter defends the State’s fiduciary duties discussed in the previous chapter. It demonstrates why various other ameliorative or coercive governmental measures either fail to mitigate domination or exacerbate it. These governmental measures include increased shelter spaces, zoning, concentration strategies, and dispersal tactics. The final parts of this chapter demonstrate why encampments are a partially justifiable response to homelessness. Yet the State must provide access to housing because individuals cannot justifiably establish encampments as a form of self-help .

Beginning after the end of Reconstruction, this chapter looks at the ways in which the police power emerged to facilitate an increasingly bold project of regulation. Key Supreme Court decisions supported the use of the police power to undertake and implement the objectives of a growing economy and a widening sphere of government. State power accompanied expanding national power and all levels of government tackled myriad persistent and new problems. In a case from the early twentieth century, for example, the Court upheld a vaccine requirement as a reasonable exercise of the public health authority of the state. Regulatory power was called into question by the Supreme Court’s Lochner-era decisions, but even this two-decades-long movement did not seriously threaten the ability of state governments to carry out ambitious regulatory agendas. Significantly, the Court put its imprimatur on the government’s zoning power in key cases from the late 1920s. And though the Court would message to the states that there were limits on how far they could go in restricting property rights, through doctrines such as “regulatory takings,” what emerged by the end of World War II was a robust conception of the state police power, one that gave government a wide sphere of action and authority to protect the general welfare.

Chapter 3 takes a closer look at place-specific restrictions on public protest. It examines the rules that apply under the First Amendment’s “public forum” and “time, place, and manner” doctrines. These doctrines are the foundation for enforcement of public order laws, the zoning of protest, and the targeting of specific protest locations including healthcare facilities, abortion clinics, funerals, and residences. The chapter critically analyzes the basis for and scope of spatial restrictions on public protest and dissent.

The past decade has brought on some of the worst cases of flooding due to natural disasters and the resulting leaching of some of the most hazardous environmental contaminants back into nearby, often low-income, communities. There is also a serious inequity when it comes to access to recovery based on average income levels of neighborhoods. As cities assess modifications to zoning, land use, and real estate development, it is critical to acknowledge climate science, however inconvenient, and take measures to address disaster preparedness, aimed particularly at helping the most vulnerable communities. Instead of waiting for changes to federal environmental laws, this chapter argues that state legislators and planners should be planning and executing rules that acknowledge climate data, actively engaging community leaders and businesses to assist low-income communities, and enhancing, not suspending, the oversight process of industries capable of leaching environmental contaminants during and after a hurricane.

Ms. Justice Lenhardt delivered the opinion of the Court.1

Imagine a family. Black and poor, its members differ in various ways. But they share a critical connection: a common history and bond. Like many families, especially those of color, they pool their resources, as well as the love they all bring to the endeavor of survival navigating the challenges posed by racial discrimination, poverty, and stigma in a way that makes family flourishing and well-being possible. Coming together in this way means not merely Sunday dinners after church. Those gatherings remain important. They are a source of both connection and renewal. But they stand alongside shared housing; childcare for two boys living without a biological mother and other caregiving; food, and other resources; and emotional support, especially in trying times. Even more, they help to secure a sense of belonging hard to achieve in a context in which poverty and blackness remain disqualifying in so many areas of life.

Using historical, ethnographic, and archival research, this chapter examines the intersection of environmental policies and community well-being through the lens of community psychology, particularly its attention to the entwinement of socioeconomic and environmental conditions. Focusing on the Gowanus community in Brooklyn, New York, which is midway through a federally mandated environmental cleanup as a Superfund site, we describe how advancing the collective well-being at the scale of the neighborhood can also entail challenging entrenched power structures that have supported systemic inequalities and working within a diverse group. The collective efforts of the Gowanus Canal Community Advisory Group illustrate how chronic toxic environmental degradation can be addressed within an extended collaborative process. We conclude that while endeavoring to improve the surrounding physical environment, the Group’s efforts have also strengthened collaborative engagement across groups to foster community well-being and social justice.

Chapter 6 describes how some local governments have given rights of citizenship, including voting rights, to nonresident landowners; in some cases, municipalities have actually limited the franchise exclusively to landowners. Once again, this is indicative of the distinctive nature of local citizenship. Property ownership ceased being a prerequisite for voting in state and federal elections by the 1850s, as citizenship was coming to be seen primarily in ethno-nationalist terms as a matter of shared identity. Local governments, reflecting their history as commercial entities, have been more open to tying the franchise to landownership, and as a de facto matter, many cities today use zoning regulations to ensure that anyone who cannot afford to purchase a home cannot acquire residence, and therefore the right to vote. This de facto property qualification for local citizenship illustrates that local citizenship is constructed as purely private and liberal, predicated upon consumer choice, mobility, and self-interest rather than identity or civic activity.

Chapter 2 details how the distinction between the public and private spheres of citizenship has been implemented through jurisdictional scale, or federalism. Through a mosaic of laws regarding suffrage, immigration, education and public benefits, zoning, civil rights and others, our federal system has designated the national government as the public sphere of identity and civic activity, and local governments as the private sphere of the market and the family. The potential for conflict among the various conceptions of citizenship is muted because their contradictory components are divided into separate spheres and each is then confined to its designated sphere. This chapter also describes, however, how globalization has caused the public/private distinction to break down, and with it, the line between local and national citizenship to become blurred. As that has happened, the contradictions among the three conceptions of citizenship have become more pronounced, resulting in a crisis in the meaning of citizenship and increasing hostility between cities and the state.

Sovereignty and Property: uses the US Supreme Court’s 1989 decision in the case of Brendale v. Confederated Tribes as a vehicle for exploring ways in which the United States government, and the United States Supreme Court in particular, has treated Indian property differently than it treats property owned by non-Indians. In Brendale the Court concluded that tribes possessed the ability to zone only those parts of the reservation which retained their ‘Indian character.’ Singer demonstrates that the Court’s inconsistent treatment of tribal governments - sometimes treating them like sovereign governments and sometimes like private property owners – is driven by a particularly Western European philosophical conception of property.

Chapter 4 directly links the regulations introduced in Chapter 3 with public meetings. This chapter focuses on why proposals end up in public meetings and what types of issues members of the public and zoning officials raise. We introduce the novel data on meeting minutes from Massachusetts cities and towns that we use in Chapters 4, 5, and 6. Using these meeting minutes, we trace 100 randomly selected proposals in which we collected especially detailed project and meeting information. We show that once a project requires a public hearing, members of the public raise any and all concerns—not just those directly pertaining to the regulations that necessitated a meeting in the first place. The regulations described in Chapter 3 provide the opportunities for neighborhood defenders to air virtually all of their concerns and objections.

Chapter 2 develops our theory, highlighting how land use regulations and participatory inequalities come together to constrain the supply of new housing. We use a detailed case study of a Catholic Church redevelopment project to illustrate how neighbors opposed to development are able to delay development and reduce what gets built by participating in the planning and permitting process.

Chapter 1 uses several illustrative case studies to introduce the central argument of this book: that land use institutions ostensibly designed to empower underrepresented neighborhood groups actually amplify the power of neighborhood defenders to stop and delay the construction of new housing. We then situate this argument in the broader context of rising national housing costs, and the negative social, economic, and environmental consequences of the nationwide housing crunch.

Chapter 3 uses land use regulation and housing permitting data to: (1) clearly describe how land use regulations operate and (2) statistically link their proliferation with a diminished housing supply. We show how regulations create opportunities for opponents to file lawsuits, and how these lawsuits in turn reduce development. In order to address potential selection bias in our empirical analyses, we then use the redevelopment of Catholic Church properties across the greater Boston area as a natural experiment, and show that zoning regulations of all types decreased the density of the housing built on former church sites.

Chapters 5 and 6 turn to members of the public. In Chapter 5, we combine a novel data set of all citizen participants in planning and zoning board meetings in the greater Boston area with the state voter file to describe the demographic and attitudinal attributes of meeting attendees. We demonstrate that these individuals are overwhelmingly opposed to new housing and demographically unrepresentative of their broader communities across a number of important domains.