Scholars Propose State Constitutional Strategies to Combat Exclusionary Zoning
Law professors have released a new paper outlining how state constitutions can be used to challenge exclusionary zoning through lawsuits and amendments.
A newly posted paper on SSRN, written by Josh Braver and a libertarian co-author, presents a comprehensive analysis of state constitutional approaches to fighting exclusionary zoning, which they identify as a primary driver of the U.S. housing shortage. The study catalogs case law across every state, finding that most courts mirror federal takings doctrine, though New York, Pennsylvania, and New Jersey have occasionally diverged.
Rejecting the view that courts are ineffective, the authors outline two practical methods: suing under state takings and due-process clauses, and pursuing constitutional amendments that would mandate compensation, prohibit specific zoning tactics, or introduce limited reforms. The work builds on their earlier Texas Law Review article and a popular Atlantic essay, aiming to spur quicker state-level action while awaiting potential federal developments. The paper is currently free to download and will soon be submitted to law reviews for publication.
Why it matters
State constitutional tools could provide faster relief from housing shortages caused by exclusionary zoning.
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