Limiting the collective right to exclude.

• Author: Boyack, Andrea J.
• Position: Special Issue on Affordable Housing

ABSTRACT

For decades, society's disparate interests and priorities have stymied attempts to resolve issues of housing affordability and equity. Zoning law and servitude law, both of which have been robustly empowered by decades of jurisprudence, effectively grant communities the legal right and ability to exclude various sorts of residences from their wealthiest neighborhoods. Exclusion by housing type results in exclusion of categories of people, namely, renters, the relatively poor, and racial minorities. Although our society's housing woes may indeed be intractable if we continue to treat a group's right to exclude with the level of deference that such exclusionary efforts currently enjoy, this treatment is unjustifiable. Courts should acknowledge and consider the broad public and private costs that are created by a group's unfettered right to exclude. A more balanced approach would weigh individual autonomy to control property and various public harms resulting from community exclusions against legitimate community needs to exclude certain residents and uses. Judicial limits of the collective right to exclude may enable real progress toward fair and affordable housing to be achieved at last.

TABLE OF CONTENTS Introduction 452 I. Justifications for the Collective Right to Exclude 456 A. The Core Right in Property's Proverbial Bundle of Sticks 456 B. Justifications for a Collective Right to Exclude 458 C. Promoting Property Values by Limiting Housing Supply 469 II. Calculating the Costs of Collective Exclusion 477 III. How To Limit the Collective Right to Exclude 482 A. Ineffectiveness of Top-Down Control of Local Housing Exclusion 483 B. Economic Motivators and Market Meddling 487 C. An Individual Rights Approach to Controlling the Collective 489 Conclusion 495 INTRODUCTION

At first glance, there is nothing remarkable about judicial enforcement of local use-based zoning restrictions or private community regulations prohibiting rental housing in a given community. Most courts agree that public and private community interests in maximizing property values and development harmony amply justify far-reaching zoning and servitude limitations on an individual owner's control of her property. In some cases, the public good might actually warrant such limitations on individual property rights, but perhaps not in cases where asserted public benefits are outweighed by actual public harms. The question of whether a community can exclude certain uses and residents from its midst should be determined by balancing not only purported community benefits against the autonomy impact of limitations on a particular owner's right to use, but should also weigh the broader societal harms caused by a collective right to exclude, including ill-effects on non-owners, including would-be residents, and on the housing market as a whole. Such broader effects could in many cases justify limitations on a group's right to exclude. By limiting a community's ability to exclude, courts may be able to break through the land-use stalemate that currently renders America's housing system unsustainable and unfair and may allow market forces and individual owner self-interest to increase housing supply, affordability, and equity.

In his thought-provoking article, "Affordable Housing" As Metaphor, (1) Professor Steven J. Eagle articulates and addresses the systemic challenges that plague efforts to achieve three affordable housing goals: (1) developing an ample supply of a range of housing that maximizes economic productivity, (2) preserving neighborhood accessibility and value for existing residents, and (3) improving housing affordability and equity. (2) Although noting that scholars and government agencies have broadly asserted the need for society to achieve all three of these housing goals, Eagle points out that numerous social and economic forces prevent each of these important objectives from being achieved. (3) Affordable/fair housing problems are indeed multifaceted and tangled, and we lack an adequate weapon to cleanly and quickly slice through them a la Gordian Knot. Acknowledging that there can be no quick and easy solution without the unlikely "broad change in political will leading to a consensus on goals and priorities," (4) Eagle suggests that we settle for a series of Burkean incremental changes that may eventually work marginal improvements in housing supply, neighborhood quality, and integration. (5) Eagle is correct that housing problems will not self-resolve, (6) but a bold new approach to a group right to exclude could possibly give housing a needed push.

In many cases, upholding a community's right to exclude reflects the long-held governmental polity preference for homeownership over rental residency. (7) Federal legislatures and courts have consistently upheld the right of local governments to use zoning laws to exclude rental populations and rental uses from a community, (8) even in cases where owner-occupant segregation has disparately impacted populations protected under the Fair Housing Act. (9) Very few states have pushed back against local self-determination when it comes to neighborhood content. (10) Homeowners who vote ("homevoters") have captured local governments to some extent, and this has inspired some scholars and legislators to advocate for more federal oversight with respect to local land use decisions and their effect. (11) The federal government may be unable to engineer a top-down solution, however, because Congress also remains beholden to public opinion, and public opinion can be illogical, and fickle. (12)

Even if competing constituent objectives inhibit a comprehensive political solution to the decades-old affordable housing crisis, the legal system can still take steps to disengage housing issues from the tug-of-war of opposing interest groups. Instead of merely waiting for a political consensus to develop, courts should de-politicize the issue of affordable housing so that market forces could naturally work to increase housing supply, affordability, and equity. This can be done by reining in the properly right of a community to exclude certain uses and populations from its boundaries. (13) By adopting a more skeptical view of a group's asserted exclusionary justifications, and by promoting individuals' rights to control the possession and use of their private property, courts might counteract one of the principal causes of housing unaffordability and unfairness: the broadly supported right of communities to exclude. If housing production and location can be somewhat freed from community zoning and servitude control, economic motivators may provide leverage to break through our current political stalemate and, ultimately, create more efficient and fair housing.

Part I of this Article explains the various justifications that have been cited in upholding a group's collective right to exclude and acknowledges that limiting a group's right to exclude would reduce the community's power of self-determination. As articulated in Part II, however, limiting the collective right to exclude may in some cases be warranted based on the costs that certain group exclusions impose on individuals (owners and non-owners) and on society as a whole. Part III briefly considers how a group's right to exclude might be constrained through a new judicial approach to zoning and servitude law, even in the absence of sufficient political will to enact federal or state regulations of local exclusionary powers. This Article concludes that judicial limits on collective rights to exclude could remove market barriers to equitable and affordable housing.

1. JUSTIFICATIONS FOR THE COLLECTIVE RIGHT TO EXCLUDE

   1. The Core Right in Property's Proverbial Bundle of Sticks

      Every first-year law student learns that property is a collection, or "bundle," of legal rights with respect to a given thing. Like the empowered pigs in Orwell's Animal Farm, (14) however, some sticks in this proverbial bundle seem to have become "more equal than others." (15) Courts and scholars have christened the right to exclude the superlative right among all property rights. (16) Recent property scholarship has shown a renewed theoretical interest in the core right to exclude, but its property law primacy is foundational. (17) William Blackstone himself famously defined property in terms of the right to exclude, explaining that property is "that sole and despotic dominion which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the universe." (18) Indeed, the essence of an owner's specifically enforceable right to exclude at her whim is what distinguishes what Professors Calabresi and Melamed term a "property" sort of right from other sorts of rights. (19) The right to exclude is part of what enables an owner's property rights to protect her autonomy, (20) liberty, (21) privacy, (22) and personhood. (23) In American jurisprudence, an individual's property right to exclude is, in a word, "sacred." (24)

   2. Justifications for a Collective Right to Exclude

      The right to exclude may be a critical component of an individual's property rights, but that does not render the right to exclude inviolable, particularly in the context of such a right exercised by a collective rather than an individual. Neighborhoods, communities, and municipalities assert the right to exclude (and other property rights) through planning, zoning and restrictive covenants, and some courts and scholars conflate such asserted group rights (including the right to control communal property and to control property uses and inhabitants in a neighborhood), with individual property rights in order to evidence their legitimacy. (25) In fact, however, the underlying justifications for protecting owners' individual rights to exclude are quite distinct from the relevant concerns in the context of a group, and the impacts of...