Beyond the Double Veto: Land Use Plans as Preemptive Intergovernmental Contracts

Published: 2018 | Christopher S. Elmendorf | UC Davis Legal Studies Research Paper Series

Abstract

The problem of local-government barriers to housing supply is finally enjoying its moment in the sun. For decades, the states did little to remedy this problem and arguably they made it worse. But spurred by the emerging Yes In My Backyard (YIMBY) movement, state legislatures are now trying to make local governments plan for more housing, allow greater density in existing residential zones, and follow their own rules when reviewing development applications. This Article describes the new state housing initiatives, relating them to preexisting Northeastern and West Coast approaches to the housing-supply problem; to the legal literature on land-use planning; and, going a bit further afield, to the federal government’s efforts to protect the voting rights of African Americans in the Jim Crow South. Of particular interest, we will see that in California, ground zero for the housing crisis, the general plan is evolving into something that resembles less a traditional plan than a preemptive and self-executing intergovernmental contract for development permitting, one which supersedes other local ordinances until the local government has produced its quota of housing for the planning cycle. After tracing the emergence of this notion of the plan, I consider what further reforms would be necessary to complete its realization, and I take stock of its strengths and weaknesses.