Keith Mack
The question of whether states can preempt local zoning laws is a complex and controversial issue, with proponents and critics offering compelling arguments. State preemption occurs when a higher level of government, such as a state legislature, overrides or restricts the authority of a lower level of government, such as a city or county. In the context of land use planning, state preemption has been invoked to address issues like rising housing costs, automobile dependency, and climate change by encouraging denser housing developments. While some states have successfully preempted local zoning laws, others have faced challenges and opposition from communities advocating for local control and self-determination. The debate surrounding state preemption of local zoning laws highlights the tension between state and local powers, with legal battles frequently arising over the extent of state intervention in local affairs.
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What You'll Learn
- State preemption of local zoning laws as intersectional climate policy
- State preemption efforts to create affordable housing
- State preemption of local zoning laws to allow more housing near public transit routes
- State preemption of local zoning laws to allow residential construction in commercial zones
- State preemption of local gun safety measures
State preemption of local zoning laws as intersectional climate policy
State preemption is invoked when state and local laws conflict. In the context of land use planning, state preemption can override local single-family zoning codes, which has been a controversial proposition. While it can be a tool for self-determination for property owners and communities, state preemption can also be used to impose higher levels of regulation. In recent years, state preemption has played an increasingly prominent role in land use regulation, with states exerting legal power over local governments on issues like the zoning of single-family neighborhoods.
Several states have passed or considered laws that impinge on local power by preempting restrictive local zoning regulations in favor of regulations that encourage denser housing development. These laws typically mandate that land zoned for single-family housing allows for "middle housing," such as duplexes, triplexes, and similar constructions. Advocates hope that removing barriers to multifamily housing will lead to more housing units at more reasonable prices. This type of policy addresses overlapping crises, including climate change, housing unaffordability, and racial segregation.
Oregon passed the most ambitious zoning preemption law in 2019, becoming the first state to preempt local zoning policy with House Bill 2001. This law requires cities to allow the development of "middle housing" types, including duplexes, triplexes, quadplexes, cottage clusters, and townhouses, in areas zoned for residential use that previously allowed only single-family dwellings. Other states, such as Virginia, Washington, Nebraska, California, and Maryland, have also explored similar preemption measures to open single-family neighborhoods to denser housing forms.
State preemption of local zoning laws can be a powerful tool for addressing the intersecting crises of climate change, housing affordability, and racial segregation. Progressive advocates and academics recognize that these crises are interconnected and require comprehensive solutions. By exploiting the synergies between these issues, state legislatures can enact laws that win broad-based support and better utilize scarce funding sources. For example, increasing housing density through state preemption can help mitigate climate change while also addressing housing unaffordability.
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State preemption efforts to create affordable housing
State preemption laws have been a significant point of contention in the efforts to create affordable housing. While state preemption can be invoked to override restrictive local zoning regulations and promote denser housing, it can also be used to block progressive local initiatives aimed at increasing housing affordability. This dual-edged sword nature of state preemption has led to a complex dynamic between state and local governments in addressing the affordable housing crisis.
On one hand, state preemption has been employed to remove barriers to multifamily housing development. Several states, including Oregon, Virginia, Nebraska, California, and Washington, have passed laws that preempt local zoning policies restricting land use to single-family housing. These laws encourage the development of "middle housing," such as duplexes, triplexes, and quadplexes, on land previously reserved for single-family homes. Advocates argue that by allowing denser housing, developers will be incentivized to build more units at more reasonable prices, increasing housing affordability.
However, state preemption laws have also been criticized for hindering local efforts to create affordable housing. In Southern states, for example, state preemption laws have been enacted to prevent local governments from implementing rent control and inclusionary zoning policies. These laws restrict the ability of local governments to regulate rents and ensure that new developments include affordable units for low and middle-income households. Additionally, some states have preempted local regulations on short-term rentals, such as Airbnb, which can impact the availability and affordability of housing for long-term residents.
The conflict between state and local governments over affordable housing policies often arises due to differing ideological preferences and priorities. While state preemption can provide local governments with more power in certain instances, it can also limit their autonomy and ability to address specific local challenges. This dynamic has been observed in cities like Durham, North Carolina, where local leaders are grappling with the dual challenges of a history of racist policies and rising gentrification and home prices, made more difficult by state preemption laws.
To navigate these complexities, local governments have explored alternative approaches to promote affordable housing. For example, cities like New Orleans have considered using their budgets as moral documents to support discretionary funding for initiatives that promote housing affordability. Additionally, inclusionary housing programs in some states provide incentives for developers to include affordable units in their projects, such as tax abatements or the right to build at higher densities. These programs aim to strike a balance between promoting affordable housing and ensuring the economic viability of market-rate projects.
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State preemption of local zoning laws to allow more housing near public transit routes
State preemption of local zoning laws is a highly controversial proposition, especially when it comes to land use regulation. While state preemption can be used to loosen local regulations, it can also impose higher levels of regulation. In the context of land use planning, state preemption has been invoked to override local single-family zoning codes, allowing for denser housing types such as duplexes and triplexes. This has been done to increase housing density and affordability, as well as to mitigate climate change.
Oregon was the first state to pass such a law in 2019, requiring cities to allow the development of "middle housing" on land previously reserved for single-family houses. Since then, several other states, including California, Virginia, Washington, and Maryland, have proposed or passed similar laws. These laws aim to increase housing density and affordability by removing barriers to multifamily housing development.
While state preemption can help address housing affordability and density issues, it is not a magic solution. Other strategies, such as allowing accessory dwelling units in single-family neighborhoods and banning minimum parking requirements, can also be part of a multifaceted state-level strategy to increase housing availability. Additionally, broader state preemption efforts are needed to address the housing needs of suburban areas, where parking requirements can inhibit development.
In conclusion, state preemption of local zoning laws to allow more housing near public transit routes is a complex issue that requires careful consideration of the benefits and drawbacks of increased state control over local land use regulations. While it has the potential to increase housing density and affordability, it is essential to respect local autonomy and engage in ongoing litigation between state and local governments.
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State preemption of local zoning laws to allow residential construction in commercial zones
State preemption is invoked when state and local laws conflict. In the context of land use regulation, state preemption can override local single-family zoning codes. This has been a controversial proposition, especially when it comes to land use regulation, as property owners and communities tend to advocate for local control as a tool of self-determination. While state preemption can loosen local regulations, it can also impose higher levels of regulation.
In recent years, several states have considered or passed laws that impinge on local power by preempting restrictive local zoning regulations in favor of regulations that encourage the development of denser housing. These laws typically mandate that any land zoned for single-family housing allows "middle housing", such as duplexes, triplexes, and similar types of housing. Oregon, for instance, passed House Bill 2001 in 2019, which requires cities to allow the development of duplexes, triplexes, fourplexes, and "cottage clusters" on land previously reserved for single-family houses. Since then, numerous other states, including Maryland, Virginia, Nebraska, California, and Washington, have explored similar preemption of local land-use power to open single-family neighborhoods to other forms of residential construction.
To address these challenges, a multifaceted state-level strategy is necessary. This could include allowing accessory dwelling units in single-family neighborhoods, banning single-family zoning altogether, and creating state-level housing appeals boards. Additionally, states can play a role in reducing the barriers for commercial-to-residential conversions, such as by providing access to federal loan, grant, and tax credit programs. By implementing these strategies, states can work towards increasing housing affordability and creating more sustainable, integrated communities.
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State preemption of local gun safety measures
State preemption is invoked when state and local laws conflict, which can occur when local laws duplicate, contradict, or cover areas already addressed by state laws. In the context of land use planning, state preemption has been used to override local single-family zoning codes, allowing for denser housing developments.
Similarly, state preemption of local gun safety measures has become a contentious issue in recent years. Historically, local governments in the United States had the authority to enact their own firearm regulations to address public safety concerns unique to their communities. However, due to lobbying efforts by the National Rifle Association (NRA) and the gun lobby, most states have passed broad firearm preemption laws that prohibit local governments from adopting gun laws tailored to their specific needs.
As of 2023, 42 states have broad firearm preemption laws, with only California, Connecticut, Hawaii, Illinois, Massachusetts, Nebraska, New Jersey, and New York generally allowing local officials to pass firearms-related public safety laws. These preemption laws remove regulatory power from local officials, including mayors and police chiefs, who are often most familiar with local criminal activity and how to address it effectively.
The impact of state preemption in this context is concerning. It creates a dangerous gap between those passing laws and those living with them daily, ignoring important local variations in preventing gun violence. For example, urban and rural communities have different needs and approaches to gun regulation. State preemption laws also hinder enforcement and thwart local innovation in gun violence prevention strategies.
Furthermore, some states have enacted extreme preemption laws that subject local officials to personal liability and removal from office for attempting to address gun violence. For instance, Florida's preemption law imposes fines of up to $5,000 on local officials who enact firearm rules, while Kentucky's law allows individuals and organizations to seek damages and litigation fees from officials who violate "the spirit" of the state's firearm preemption statute. These punitive measures deter qualified individuals from seeking office or taking legislative actions to protect their communities from gun violence.
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Frequently asked questions
State preemption occurs when a higher level of government, such as a state legislature, overrides the authority of a lower level of government, such as a city council.
States may preempt local zoning laws to address rising housing costs and automobile dependency. For example, states may require cities to allow the development of duplexes, triplexes, and fourplexes on land previously reserved for single-family houses.
State preemption is always a controversial proposition, especially in matters of land use regulation. While states have the legal power to preempt local laws, local control is important as city officials and residents often have a better understanding of their community's needs and goals.
In 2019, Oregon became the first state to pass a law requiring cities to allow the development of multi-family housing on land previously zoned for single-family housing. Since then, several other states, including California, Washington, and Vermont, have passed similar laws or are considering doing so.
Potential benefits include increasing housing supply and affordability, while drawbacks may include infringing on local autonomy and community preferences for single-family zoning.
