Author:Boudreaux, Paul

TABLE OF CONTENTS Introduction 596 I. The Changing and Expanding American Population 598 A. A Million New Households Each Year 598 B. A Majority of Small Households 599 C. An Urbanized, Coastal Nation 603 II. The Outmoded Discrimination Against Apartment Housing 606 A. American Law's Low-Density Bias 606 B. Case Studies of Knowledge Economy Areas 608 1. Washington, D.C 609 2. San Francisco Bay Area 615 3. National Trends 618 III. Increased Demand + Legally Restrained Supply = "The Rent Is Too Damn High" 619 A. The Cost Burden of Rent 619 B. The Challenge of "Affordable" Housing 623 C. Traditional Approaches to Affordable Housing 626 IV. Apartment Infill 633 A. The Market as a Tool for Lower Housing Costs 634 B. Zoning Expansion Infill 644 1. Federal Law Approaches 644 2. State Law Approaches 646 3. Expanding Apartment Zoning Districts 646 Conclusion 657 INTRODUCTION

Where will future Americans live? The United States grows by more than two million persons and one million new households each year. (1) Meanwhile, more Americans are living in urban areas and without a spouse or family; more than sixty percent of households consist of only one or two persons. (2) Despite these changes, however, the laws that govern housing remain mired in outmoded twentieth century ideas. These laws stemmed from the early-century factual assumption that most Americans live in a family with two parents and children and the late-century policy assumption that it is optimal for local governments to discourage the construction of new housing because of financial, social, and environmental costs. (3) Local land use laws, which often tightly restrain the construction of new housing--especially apartment housing--reflect this outdated thinking. (4) One result is that apartment housing has become progressively more expensive. (5) Strikingly, in the current decade, almost half of American renters, and most low-income Americans, are "cost-burdened," in that they pay more than thirty percent of their income in rent. (6)

This Article argues that the new century and new demographics demand a new approach to housing construction, especially in the high-cost metropolitan areas that are the centers of the new knowledge-based economy. As it currently stands, restrictions on housing construction in these areas have driven up prices beyond the reach of large segments of the population. (7) To mesh with modern concerns over suburban sprawl, our laws should be revised to allow the building of more infill housing--units within built-up metro area boundaries. (8) More specifically, our laws should allow for many more apartments, (9) which are increasingly demanded by the changing demographic makeup, yet have long been discriminated against under American land use laws. (10) This Article proposes a legal mechanism of zoning expansion infill, through which cities expand current high-density residential districts to meet modern housing needs. (11)

Part I highlights the extraordinary demographic changes in the modern United States, especially the tremendous growth in small households, which are less likely to demand a traditional single-family house and more likely to prefer an apartment, in an increasingly urbanized nation. Part II exposes the legal discrimination against apartments, highlighting examples of such discrimination in the Washington, D.C., and San Francisco Bay areas. Part III analyzes the corrosive effects of restrictive zoning laws on the affordability of housing, especially for low-income Americans. Part IV analyzes proposals for legal reform to spur apartment infill, including the technique of zoning expansion infill.


    The American population in the twenty-first century (a) rapidly expands, (b) lives in decreasingly smaller households, and (c) is congregating in urban and coastal areas. These trends point to the need for more housing construction within our most popular metro areas. This Part highlights in turn these three modern demographic changes.

    1. A Million New Households Each Year

      Since the first U.S. Census, the United States population has continued to grow. As of early 2018, the nation's population exceeded more than 327 million. (12) The population is more than two million larger than it was a year before. (13) The United States adds a new baby every eight seconds (and experiences one death every eleven seconds); and gains another person by net migration every twenty-six seconds. (14) In all, the American population grows by one every fifteen seconds. (15) The robust growth of the United States stands in contrasts to the populations of other affluent nations, such as Germany, Italy, and Japan, all which recently have experienced little or even negative growth. (16) This is attributable, at least in part, to their extremely low birth rates as compared to the United States. (17) But the United States, which trails only China and India among the world's most populous nations, continues to grow fairly rapidly, both because of its relatively strong birth rate among affluent nations and because it continues to be, as it has been for more than two centuries, the leading focus of emigration on the planet. (18)

      More people means a greater demand for homes. But the population rise understates the rapid increase in the need for housing. The Census defines a household as a person or persons living together in a unit. (19) Because the average size of a typical household in the United States has fallen dramatically over the past century, the number of households has risen even faster than the population. (20) For example, while the overall population rose by a little less than 10% between the 2000 and 2010 censuses, (21) the number of households grew by considerably more than 10%, to greater than 116 million households in 2010, (22) and to an estimated 125 million households in 2016. (23) The total number of households is 50% larger than in it was in 1980, when it was just over 80 million, and more than twice the number in 1960, when the United States held only about 53 million households. (24) Put simply, the United States in the twenty-first century needs to add housing for more than one million new households each year. (25)

    2. A Majority of Small Households

      Moreover, the makeup of American households has changed dramatically in recent decades. More specifically, the traditional idea of a household as being parents with children is no longer the norm. In 2012, more than 60% of households (more than three in five households) consisted of only one or two persons. (26) The stereotype of a family with children is fading; the share of households consisting of married parents with children shrunk from more than 40% in 1970 to less than 20% in 2012-a collapse of more than 50%. (27) In 1970, more than half of all households had three or more people, with more than 20% consisting of large families of five or more persons, as demonstrated in Figure 1. (28) In 2012, by contrast, the share of large families of five or more persons--such as the traditional Dunphy household in the popular twenty-first-century television show Modern Family (29)--had plummeted to less than 10%. (30)

      At the same time, one-person or two-person households (sometimes a couple, sometimes a single parent with a single child) have taken up a larger and larger share of the overall number of households. The most rapidly growing type of household is one person living alone. In what the Census Bureau calls "the rise of living alone," the total number of single-person households skyrocketed nearly six-fold from 1960, when there were only six million such households, to today, when more than 35 million Americans live alone. (31) Overall, the share of those living alone mushroomed from only about 13% of households in 1960 to 28% of households in 2016. (32)

      Figure 1. U.S. Household by Size, 1970 to 2012 (33) (in percent) 5 people or more 4 people 3 people 2 people 1 person 1970 20.9 15.8 17.3 28.9 17.1 1980 12.8 15.7 17.5 31.4 22.7 1990 10.4 15.5 17.3 32.3 24.6 1995 10.4 15.5 17.0 32.2 25.0 2000 10.4 14.6 16.4 33.1 25.5 2005 9.8 14.5 16.1 33.0 26.6 2010 10.1 13.7 15.9 33.6 26.7 2012 9.6 13.3 15.9 33.8 27.4 Source: U.S. Census Bureau, Current Population Survey. Annual Social and Economic Supplement, selected years. 1970 to 2012. Note: Table made from bar graph. The reasons for these changes are straightforward. First, Americans have fewer children today than did generations past. (34) While the typical woman had 3.8 children in 1957, a typical woman today has 1.9 children. (35) This phenomenon is attributable both to the widespread availability of contraceptives and the empowerment of women, who are choosing to engage in other life activities, such as pursuing a career, rather than in the traditional role of focusing on children. (36)

      Second, Americans are living alone more often both as young adults and as older persons. Young people are marrying later: the median age at first marriage is now over twenty-eight years old (a number that has risen sharply in recent years), as compared to less than twenty-three years old in 1960. (37) This is attributable to a number of factors, including the fact that more people are cohabitating without marriage and choosing not to form a household couple. (38) At the same time, modern Americans divorce more often than they did a century ago. (39) While there were more than seven marriages for every divorce in 1920, the ratio fell to just over two-to-one by 1990, although it has since risen slightly. (40) As of 2010, 14% of Americans were divorced or separated and 28% had never married--a record share--because of later and fewer marriages and more divorces. (41) In sum, the fraction of adult Americans (eighteen and older) who are married is down to barely half at 51%--an all-time low. (42)

      Just as significant, the number of elderly people in the United States has rapidly grown over the past...

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