72 Fla. L. Rev. 1271 (2020)
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Land Use LawProperty Law


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

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. Instead, 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