Commodity & Propriety in Contemporary New York City: Essay

Cornell Journal of Law and Public Policy Cornell Journal of Law and Public Policy

Volume 29 Issue 3 Spring 2020

Article 12

Commodity & Propriety in Contemporary New York City: Essay Commodity & Propriety in Contemporary New York City: Essay

Katrina M. Wyman NYU School of Law

Part of the Property Law and Real Estate Commons

ESSAY

COMMODITY & PROPRIETY IN CONTEMPORARY NEW YORK CITY

748 756

One of Professor Greg Alexander's central contributions to property scholarship is his emphasis on the multiple understandings of private property in the American legal tradition. Private property, he underscored in Commodity & Propriety: Competing Visions of Property in American Legal Thought 1776-1970, has never been understood by American legal elites solely as a commodity providing owners with a robust right to pursue their private preferences and accumulate wealth unfettered by government regulation.1 For hundreds of years, private property also has been regarded as a tool of "propriety" through which governments promote social purposes, the specifics of which have been contested and varied over time.2

The competing visions of property as commodity and propriety are on view today in New York City ("the City"). It is no longer the decrepit

symbol of urban decay that President Ford told to "drop dead" in 1975 according to the famous New York Daily News headline.3 America's most populous city is one of the nation's small number of superstar cities,4 home to a booming economy, as people and industries value the density that it provides.

Land is very much a commodity, bought, sold and developed for private gain in today's metropolis. This is evident in the recently opened Hudson Yards development on the west side of Manhattan.5 It is a contemporary symbol of property as commodity, or, more precisely, private property in land being used for private benefit.6 The centerpieces of the new development are high-end office buildings, a mall filled with luxury stores like Dior, and luxury condominiums, although it also includes a relatively new subway station and greenspace.7 Not only is the project essentially an office complex, a home and a playground for the wealthy, but to add insult to injury it was financed with extensive government assistance.8 Perhaps the most egregious element of that assistance is New York State's gerrymandering of the boundaries of a zone to enable the developers of Hudson Yards to finance the project partly using a federal program intended to encourage foreign investment in economically distressed areas.9

Hudson Yards notwithstanding, the proprietarian vision of property in land as a tool for promoting the public good remains alive and well in New York City. It is evident in discussions about how to address the high cost of housing in the City. Housing affordability is once again a major political issue in New York, as it has been on and off for over a hundred years.10 Today, close to 70% of New York City households rent, compared with between 30-40% nationwide.11 Over half of renter households are rent burdened, meaning they spend over 30% of their pretax income on rent.12 The share of the population that is rent burdened has grown over time and includes middle- as well as low-income earners13 as rents have increased faster than incomes.14 Renting is costlythe average monthly rent in the City is $1,59515-even though almost half of privately owned apartments are rent regulated,16 and there is a

considerable amount of City-owned public housing in which rents are geared to incomes.17

This Essay analyzes the ongoing debate among a small number of legal and urban planning academics about how to address the high cost of housing in New York City. In a city where over two-thirds of households rent, this essentially is a debate about how to bring rents more in line with incomes. This Essay might be regarded as a piece of fan (non)fiction. Its focus is similar to Commodity & Propriety on elite views, it takes the book's analytical structure as a starting point,18 and it offers a supplemental chapter.19

The academics on whom I focus have converged on the idea that the City's land use regulations should be changed to make housing more affordable, but they disagree profoundly about how these regulations should be changed. This is a debate among proprietarians. All of the academics agree that government should be regulating privately owned land to improve life in the City by making housing more affordable.20 They devote surprisingly little attention to ways other than changing land use regulation to improve housing affordability, such as the strategy that New York City adopted in the early twentieth century of building out transportation infrastructure to enable people to move out from the central city.21 The two camps of academics on which I focus have different

views about what the City should be doing in regulating land use to make housing more affordable. In Professor Alexander's terms, the camps have different conceptions of "the proper social order" for the City.22

In one camp are the contemporary urban adherents of what I call a "centralist" tradition that aims for continued economic growth for the jurisdiction as a whole and sees a strong central government led by a powerful executive branch as a useful tool for spurring the desired growth. Of the narratives discussed in Commodity & Propriety, Hamiltonianism comes closest to what I call "centralism," although Hamiltonianism was focused on nation-building rather than city-building.23 The academics that I label urban centralists believe that the City should aspire to economic growth and development in order to provide opportunities for people from the City and elsewhere in the U.S. and abroad. They see housing as a commodity that is susceptible to the laws of supply and demand and favor neighborhood-wide upzonings, initiated by the mayoral administration, to enable the private sector to build more new housing to enable the City's population to continue to grow.24 They anticipate that the private sector will take advantage of the new opportunities, and that the resulting increase in the housing supply will over time help to moderate housing prices-certainly compared to what they otherwise would be if development remains as constrained by regulation as it currently is.25 Urban centralism embraces a spectrum of views: while some centralists mainly emphasize the importance of development to enable economic growth, an important constituency of centralists subscribes to a vision of inclusive growth, in which opportunities are open to people of different incomes and races.26 Those who seek inclusive growth see a role for government in stimulating private development of low-income housing in particular, through policies such as mandatory

inclusionary zoning,27 and making available city-owned land for the construction of affordable housing.

in the

that emerged

late eighteenth century in opposition

Opposing the centralists are the "localists." Localism privileges the preservation of small-scale communities nested within a larger whole.28 It is suspicious of strong centralized authority, and of a powerful executive that is likely to enhance such authority. Jeffersonianism, the ideology to Hamiltonianism, is a prime example of localism discussed in Commodity & Propriety. However, it would not be appropriate to label contemporary urban localists "Jeffersonians" because the communities that these localists seek to defend are vastly different from the agrarian communities of fee simple landowners that concerned the slave-owning Jefferson29 Contemporary urban localists focus on defending New York City neighborhoods.30 They see the city as an assemblage of neighborhoods that need to be carefully preserved and nurtured.31 Their emphasis on protecting neighborhoods recalls Jane Jacobs' defense of districts32 and Professor Alexander's belief that belonging to a stable, supportive community is conducive to a good life.33 Localists are especially concerned that promoting growth will displace longtime residents of low-income

communities of color who bore many of the costs of past racially discriminatory land use policies and who are often renters. Localists emphasize that the neighborhood upzonings that the City had approved as of the end of 2018 under Mayor Bill de Blasio were in low-income communities of color.34

What I label modern-day localism dismisses neighborhood upzonings as a response to the affordable housing crisis. The localists argue that private developers will merely seize the new scope for development to build high-priced housing in currently affordable neighborhoods; they doubt that low-income people will benefit from any trickle-down effects from an increase in the supply of housing that they cannot afford.35 The localists maintain that government itself must build new publicly-owned housing. Moreover, they warn that merely talking about upzoning currently affordable neighborhoods increases land prices and rents in these areas, leading to the displacement of low-income people of color. Rather than city-led upzonings, the localists favor community-based planning, giving neighborhoods much greater say-perhaps even an implicit veto-over land use regulation.

Until recently, the centralists were clearly more politically powerful In line in New York City than the neighborhood-defending localists. with the centralist vision, as of June 2019, the City had completed six major neighborhood upzonings to increase the scope for development of new housing, and additional neighborhood rezonings were advancing.36 The City also had introduced a new Mandatory Inclusionary Housing (MIH) policy and other changes to prod developers to build new lowincome housing.37 However, the criticisms that led Amazon to announce that it will not build a headquarters in New York City, and the State legislature's tightening in June 2019 of rent regulation to increase protections for tenants, suggest that the localists are now ascendant.38

Whether the centralist vision will continue to dominate may depend on how successful it is in reducing the share of the population that is burdened by high rent.39 It also may depend on whether urban economic growth is sabotaged by recession and anti-urban Trump administration policies, such as curbs on immigration that could curtail urban population growth, and tax changes that increase the cost of living in high tax urban areas.40 Critics of New York State's 2019 reforms to rent regulation also suggest that they could reduce the development of new housing in the City, and therefore contribute to an economic slowdown.41 If urban economic growth wanes, then the centralist approach of steering the market to increase affordable housing may stall as the private development on which it hinges is curtailed. To be sure, reducing urban economic growth also might ease the escalation of housing prices in New York City, and therefore lower the level of political concern about housing affordability. But we should be careful about what we wish for: economic stasis or decline would give rise to a new set of public policy concerns.

As Professor Alexander emphasizes, legal elites have always taken an interest in the actual "predicaments" of their times,42 and so it is not surprising that there is a small group of legal academics in New York City and other areas of the country with high housing prices that have been writing about how to address them. These academics include my

colleague Vicki Been, who was Commissioner of Housing Preservation and Development for three years in Mayor de Blasio's first term and is now Deputy Mayor for Housing and Economic Development;43 my other colleague Rick Hills; David Schleicher;44 John Infranca;45 Chris Elmendorf;46 and Eric Biber.47 John Mangin also belongs on the list; he is an attorney with the New York City Department of City Planning and an adjunct professor of urban planning who has published about land use regulation.48

Although they do not frame their views in this way, and there are differences among them, reading between the lines, these academics broadly seem to share what I call a centralist vision for the city. This vision prioritizes continued economic growth for the city so that it can remain a magnet of opportunity. Some centralist scholars also emphasize that urban growth is necessary to promote national economic growth, drawing on economic literature indicating that restrictive municipal land use regulation is inhibiting national economic development and increasing inequality by inhibiting lower-income earners from relocating to more productive cities.49 Some of the urban centralists are not only interested in aggregate economic growth, but also inclusive growth that provides opportunities to people from a variety of backgrounds, including low-income backgrounds. For example, Professors Been, Ellen and

O'Regan "recommend that new development include housing rented or sold at a variety of price points (using subsidies as needed), so that growth is balanced among the various income levels in the community."50 The centralists tend to view a city government with strong mayoral authority over land use regulation as integral to promoting economic growth.51 The mayor is likely well-positioned to advance an agenda that is in the interests of the city as a whole because the mayor is elected by voters from across the city, not particular neighborhoods like city council members, and the administration controlled by the mayor has more resources to develop and implement policy than the council. However, some of the centralists support greater centralization of authority over land use only equivocally as a means in contemporary circumstances of realizing their primary goal of relaxing land use regulation to increase housing supply; they implicitly recognize that a strong center could favor restrictive land use regulation if the political winds shift.52

tradition deeply

Contemporary urban centralism is a modern instantiation of an intellectual thought. Hamiltonianism is a prime example of an earlier incarnation of centralism that is analyzed in Commodity & Propriety.53 Alexander Hamilton sought to promote national economic development so that the U.S. could become a major power, and saw a centralized federal government with a

in American political

rooted

strong executive as integral to the nation-building project.54 The executive would provide the vigor that would propel the central government to steer the country on the course to imperial greatness.55 Hamilton's emphasis on growth for greatness, subordinating the sub-parts for the whole, and a strong executive, are echoed in the contemporary urban centralist agenda. Urban centralism sees city government, and in particular the executive, as an "engine" to steer a community toward prosperity and opportunity,56 although it focuses on urban rather than national greatness, and prioritizes the interests of the city as a whole over those of neighborhoods, as contrasted with the nation's interests relative to those of the states. In an earlier draft, I called urban centralism modern-day Hamiltonianism.57 Although the label is not a perfect match for today's urban centralists, Hamilton was a champion of New York City. He sought to make the City the capital of the new country-until he "traded" a capital on the Potomac in exchange for congressional support for part of his financial plan to strengthen the new country.58

While the centralist academics have not been explicit about their vision for New York or other cities, they have delineated how they think the city needs to change its land use policies to lower housing costs to promote growth. They argue that cities such as New York should be addressing them by relaxing land use regulation through upzonings and

other means in order to facilitate private sector development of new housing.59 They draw on a substantial body of work by economists such as Professor Edward Glaeser that shows that more stringent land use regulations reduce new construction of housing and increase housing costs.60 They anticipate that changing land use regulation to enable more development will lead private developers to build more housing, and that an increase in supply will moderate housing prices over time-certainly compared with what they might be if regulation continues to constrain development.61 In other words, these academics think that housing is a commodity that is responsive to the laws of supply and demand. Mangin bluntly urges affordable housing advocates to recognize that "[h]ousing markets, like other markets, are fundamentally a function of supply and demand,"62 and to "embrace an agenda that accepts and advocates for increased housing development of all types as a way to blunt rising housing costs in the country's most expensive markets."63

Taking as a given that land use regulation needs to be relaxed, Professors Hills, Schleicher, Infranca and Elmendorf have proposed novel ways of overcoming the political hurdles to making the necessary regulatory changes and analyzed the tools that some jurisdictions are using to facilitate new private development.64 The scholarship tends to advocate having more land use decisions made at the city level65-or the state level, in the case of Massachusetts- and California-based scholars.66 The assumption is that elevating decision-making to a higher level might help to overcome the anti-development NIMBYism that scholars see dominating at lower levels, such as in neighborhoods.67 Nonetheless, all would retain some level of local input into fundamental land use deci-

sion-making, and as mentioned earlier, some are only contingently supportive of stronger city or state control over land use decision-making, seeing it as a vehicle today to achieve their primary goal of relaxing land use regulation to boost the housing supply.

To be clear, the legal scholarship does not argue that new private development enabled by the relaxation of land use regulation will be a panacea that will bring down housing prices for everyone and solve the affordable housing crisis. Prominent scholars, in particular Professors Been, Ellen and O'Regan, expressly emphasize the need for government to subsidize and incentivize housing for low-income earners because of the high costs of building and maintaining such housing.68 In a (perhaps strained) historical parallel, Hamilton also supported government subsidies to industry to achieve public goals-in his case, subsidies to promote the development of manufacturing.69

The modern-day localists dismiss the proffered subsidies and incentives-such as Mandatory Inclusionary Housing-as insufficient to meet the need for low-income housing and to avoid what they foresee as the displacement of existing low-income communities of color from upzoning to allow for new development.70 But as already suggested, the cen-

tralists and the localists have vastly different visions for the City: the former favor growth that benefits the city as a whole, while the latter prioritize the preservation and development of neighborhoods within the city. Policies that some centralists endorse to maintain and increase lowincome housing might assist some of the members of the communities about which the localists are concerned, but these policies are unlikely to preserve these communities intact. However, it is not clear that a city can explicitly seek to maintain existing communities of color in light of anti-discrimination laws and constitutional provisions.71 Even if a City does not upzone low-income neighborhoods inhabited by many people of color to facilitate new development, higher income-individuals may move into these areas, outbidding existing residents for the limited existing housing, and disrupting longstanding communities.72 In the past two decades, as more higher-income individuals have come to prefer living in cities rather than suburbs, increasing numbers of higher-income whites have been buying properties in low-income, predominantly African-American communities near city centers across the United States.73 As The New York Times reported in 2019, "[i]n city after city, a map of racial change shows predominantly minority neighborhoods near downtown growing whiter, while suburban neighborhoods that were once largely white are experiencing an increased share of black, Hispanic and Asian-American residents."74

While there is an identifiable group of legal scholars arguing for relaxing land use regulations to enable the private sector to expand the housing supply, it is harder to identify legal scholars offering a contrasting set of recommendations for reducing high housing prices.75 Local-

ism is more of a grassroots movement, articulated by neighborhood and community groups. I take the scholarship of Professor Tom Angotti, an emeritus professor of urban planning at Hunter College, as exemplifying the main opposing viewpoint to urban centralism.

Professor Angotti's primary unit of concern is the neighborhood, not the City as a whole.76 He seems more interested in maintaining communities than in continued citywide growth. Implicit in his defense of neighborhoods is a sense that small-scale community is integral to human flourishing (to use one of Professor Alexander's signature phrases).77 Professor Angotti also seems to perceive preserving neighborhoods as important to the political clout of historically marginalized communities. He is especially concerned with protecting urban neighborhoods that are home to low-income communities of color, which he emphasizes are more likely to be upzoned than higher-income whiter areas with more political clout to resist new development.78 These were the neighborhoods where many people of color lived during the decades when whites fled cities for suburbs, and suburbs built an apparatus of zoning to exclude low-income people and people of color.79 For many years these neighborhoods suffered from racially discriminatory land use policies and practices, such as government disinvestment and redlining.80 Now that these urban areas are once again perceived by whites as attractive places to live, he worries that the resident low-income communities

of color will be displaced, and blocked from reaping the benefits of revitalized urban cores.81

Professor Angotti argues that upzonings will aggravate displacement already occurring due to market forces in a number of ways.82 He maintains that even before the City Council approves a rezoning, the City's announcement of a proposal to upzone leads landlords to push out tenants-even rent-regulated ones-and increase rents in anticipation of further neighborhood development.83 He rejects the idea that expanding the scope for development through upzoning will lead to more supply of housing that will bring down rents.84 He argues that "the bulk of new housing built after upzonings is for the luxury market, is off-limits to most people in the neighborhood, and drives up rents and housing costs instead of lowering them."85 He also criticizes the City for failing to analyze whether its rezonings "have a disparate effect on racial minorities" and for the methodology that the City uses to assess displacement following rezonings as part of the environmental review process.86

Nor

is Professor Angotti

impressed by the policies, such as Mandatory Inclusionary Housing, implemented by the City to require private developers building in upzoned neighborhoods to set aside a certain amount of their developments for affordable housing. He doubts that the resulting housing "will be truly affordable" to the residents at risk of being displaced from upzoned areas because of how the City policy defines affordability.87 He warns that "MIH will be used as a Trojan Horse to convince communities to accept rezoning schemes that will result in substantial new market-rate housing and significant displacement."88 Even if the policy creates housing for some residents who otherwise might be priced out of the revitalized neighborhood, the policy does little to insulate the neighborhood from demographic change.

Unlike some of the centralists who warn about giving neighborhoods too much decision-making authority, Professor Angotti sees neighborhoods as too politically weak. He favors increasing the power of neighborhood-based community boards (which currently are relegated to an advisory role in the City's land use regulatory process).89 As a complement, he appears inclined to reduce the power of the mayor.90 Unconvinced that the private sector can be incentivized to supply much genuinely low-income housing, Angotti argues that the City should get back into the business of building such housing.91 He would have com-

is philomunity land trusts own publicly-subsidized housing; this idea sophically in line with his other efforts to strengthen the control of communities over land.92

Angotti's policy prescriptions are the polar opposite of the centralists' in a number of respects. He wants to strengthen the role of neighborhoods in land use, and therefore make it harder for the mayor to realize citywide land use goals; he openly suggests that government should resume building and managing new low-income housing rather than merely seek to steer and incentivize the private sector to provide it. Given the differences of opinion it is perhaps not surprising that Professor Angotti derides what I call urban centralism as a "laissez-faire ideology that all growth is good and the way to solve the housing crisis is by stimulating new market-rate housing construction."93 The centralists variously describe the viewpoint that I see Professor Angotti as exemplifying as "supply-side skepticism"94 or "the new exclusionary zoning."95 The latter label, which Mangin originated, suggests that there is a parallel between the relatively recent efforts of urban, low-income minority neighborhood residents to use zoning to protect their neighborhoods with the efforts of predominantly white suburbanites to protect theirs.96 However, other centralists, such as Professor Been, are careful to note distinctions between the new urban, and the old suburban, opposition to new development.97

thought.

Localism is an enduring counterpoint to centralism in American poto Jeffersonianism, which developed litical Hamiltonianism in the 1790s, is a prime example of localism analyzed in Commodity & Propriety.98 The Jeffersonians were concerned with protecting states' rights within the emerging nation;99 contemporary urban

in opposition

localists such as Angotti focus on protecting neighborhoods within the city. As already mentioned, it is important not to press too far the analogy between the contemporary urban localists and Jeffersonians, and I understand that some may reject it outright. Jefferson was a slave owner and no fan of cities, and many of the New York City neighborhoods that contemporary urban localists want to safeguard are populated by many low-income people of color and thus unlike the rural communities of white farmers that concerned Jefferson.100

Nonetheless, contemporary urban localism echoes in some respects a longstanding concern in political thought that larger political entities are less conducive to "civic participation" than smaller ones.101 This unease about the impact of scale on the potential for political participation harkens back to Montesquieu's warnings that expansive jurisdictions tend toward despotism and was also a feature of Jeffersonian thought.102

From a localist perspective, a large-scale government with a powerful executive branch is even more problematic than a large-scale government alone because the executive is likely to pursue the center's agenda more vigorously than a fragmented legislature.103 As mentioned above, Angotti seems to favor weakening the authority of the mayor; it is interesting that the Jeffersonians sought to keep the federal executive in check while the Federalists were in power.104

In addition to seeking to protect neighborhoods as sites for civic empowerment, contemporary urban localism also vaguely reflects a longstanding sense that residential stability promotes political participation. Jeffersonianism supported a nation of relatively equal fee simple agricultural landowners, maintaining that such a nation would have the "independence of mind" needed in a republic.105 Most households in New York City are not fee simple landowners, as over two-thirds of these urban households rent. But intellectual allies of contemporary localists have worked hard over decades to transform residential tenancies-especially the rent regulated ones that comprise close to fifty percent of city tenancies-into a new form of ownership that provides tenants with at least some stability.106 The City's rent stabilized tenants enjoy a right to renew their leases, some succession rights when they die, and limits on rent increases which were strengthened by the New York

State legislature in 2019.107 The modern-day rent regulated tenancy in New York City is a far cry from the agricultural lease for land hundreds of years ago in which the tenant took all the risk.108 In seeking to protect tenants-especially rent regulated ones-from being displaced by real estate developers and wealthier newcomers, contemporary urban localists might be seen as fighting on behalf of stable, intact communities against the modern-day equivalents of the financiers and holders of paper wealth that Jeffersonians saw as benefitting from Hamiltonianism.109 Part of the backdrop to New York State's strengthening of tenant rights in 2019 was the growing participation of investors in the market for rent-stabilized apartment buildings.110

By way of summary, the following table situates the positions of modern-day urban centralists and localists along two dimensions: their preferences for central versus local control of land use regulation, and their preferences for relaxed or restrictive land use regulation. Centralists are in Quadrant 1 because they support higher level authority over land use and reducing the stringency of land use regulation to increase the housing supply and reduce housing prices. Localists are in Quadrant 4 because they support more neighborhood control of land use regulation and maintaining stringent regulation, as they do not believe that increasing housing supply will bring down prices. Mapping preferences along the two dimensions emphasizes that there is no necessary association between centralization and relaxation, and decentralization and stringency. Centralism could be combined with a preference for restrictive land use regulation (Quadrant 2), and neighborhood authority with relaxation of such regulation (Quadrant 3). Indeed, as Rick Hills has reminded me, in the recent past, when the focus was encouraging more building in suburbs, some of those who favored relaxing land use regulation supported

decentralizing authority over land use (Quadrant 3).111 As mentioned already, some of those who support higher level oversight of land use regulation today are only hesitantly, and contingently, committed to higher level involvement as a means of achieving their primary goal of reducing the stringency of land use regulation to increase housing supply. Only time will tell whether the positions encapsulated in Quadrants 1 and 4 will continue to be the most vocal ones in New York City, or whether positions that fit in Quadrants 2 or 3 will come to the fore as circumstances change.

Relax land use regulation

Maintain restrictive land use regulation

Greater central authority over land use

Quadrant 1: Modern-day centrists

Greater neighborhood authority over land use

Quadrant 3

Quadrant 4: Modern-day localists

This Essay began by observing that property is both a commodity and a source of propriety in New York City today. I focused on analyzing the main differences between contemporary New York proprietarians over how to address the high cost of housing in the City. The Essay's conceit is that the differing views represent not only contrasting positions on the concrete policy question of how to bring housing costs more in line with incomes in the city but that they also harken back to wellestablished narratives in the American legal tradition that Professor Alexander masterfully laid out in Commodity & Propriety.

On its face the position that New York City should allow more housing construction is a proposal about how to solve today's housing crisis. But the vision also echoes a longstanding narrative evident in Hamiltonianism that government can steer private property to achieve

economic development that will benefit the collective. The concern with protecting existing urban neighborhoods has an affinity with the enduring narrative favoring stable, small-scale communities exemplified in Jeffersonianism, although the demographics and the urban character of the neighborhoods that people are seeking to protect today differ considerably from the communities that Jefferson had in mind. Thus the contemporary debate in New York City arguably can be regarded as another chapter in an enduring American conversation about property in land, updated to reflect the realities of contemporary urban life. Although there are clear differences between the present and the past, there arguably also are continuities. There remain multiple visions of property in land in the United States and debates about land policy continue to be hard-fought in our own time. I am immensely grateful to Professor Alexander for the historical context that he provides in Commodity & Propriety for better understanding these contemporary debates.

--- FOOTNOTES ---

Katrina M. Wyman*

INTRODUCTION .................................................

I. CONTEMPORARY URBAN CENTRALISM....................

II. CONTEMPORARY URBAN LOCALISM ......................

C ONCLUSION ...................................................

INTRODUCTION

* Sarah Herring Sorin Professor of Law, NYU School of Law. Thank you to Greg Alexander for inspiring this Essay, and the participants in the 2019 Progressive Property Scholars

conference honoring Greg Alexander for inviting me to the conference and for their comments.

The Essay also benefitted from conversations with Dan Hulsebosch, and comments from Rick

Hills and Danielle Spiegel-Feld. The editors of the Cornell Journal of Law and Public Policy provided helpful editorial assistance. This Essay was authored in the spring of 2019 and only

modestly updated afterwards as it went through the Journal's publication process. In the spring of 2020, New York City was profoundly affected by the COVID-19 pandemic, Black Lives Matter movement protests, and economic recession. Due to when it was drafted, this

Essay does not reflect these developments or any possible changes in the views of the scholars

discussed herein in light of these developments.

1 See GREGORY S. ALEXANDER, COMMODITY & PROPRIETY: COMPETING VISIONS OF

PROPERTY IN AMERICAN LEGAL THOUGHT 1776-1970 1-3 (1997).

2 Id. at 1-2. As Professor Alexander recognizes, the social purposes pursued using pri-

vate property have not always been admirable. Slave ownership enforced a racial hierarchy.

See id. at 211-40. Restrictions on married women's property rights enforced a gender hierarchy. See id. at 158-84.

3 See Sam Roberts, Infamous 'Drop Dead' Was Never Said by Ford, N.Y. TIMES (Dec.

28, 2006), https://www.nytimes.com/2006/12/28/nyregion/28veto.html.

4 See JOEL KOTKIN, OPPORTUNITY URBANISM: AN EMERGING PARADIGM FOR THE 21ST

CENTURY 6, 20, 23 (2007).

5 See, e.g., Matthew Haag, Amazon's Tax Breaks and Incentives Were Big. Hudson

Yards' Are Bigger., N.Y. TIMES (Mar. 9, 2019), https://www.nytimes.com/2019/03/09/nyre gion/hudson-yards-new-york-tax-breaks.html.

6 See, e.g., ALEXANDER, supra note 1, at 270 (associating "profits for private benefit" with the commodified conception of property); id. at 379 (referring to the commodificationist

view as embodying the idea that the "purpose of property is the satisfaction of individual

preferences through market transactions"). As if he were familiar with Professor Alexander's

concept of property as commodity, the architecture critic for The New York Times said this

about Hudson Yards: "It gives physical form to a crisis of city leadership, asleep at the wheel

through two administrations, and to a pernicious theory of civic welfare that presumes private

development is New York's primary goal, the truest measure of urban vitality and health, with

money the city's only real currency." Michael Kimmelman, Hudson Yards Is Manhattan's Biggest, Newest, Slickest Gated Community. Is This The Neighborhood New York Deserves?, N.Y. TIMES (Mar. 14, 2019), https://www.nytimes.com/interactive/2019/03/14/arts/design/ hudson-yards-nyc.html.

? See Lisa L. Colangelo, Jumaane Williams Slams Hudson Yards as 'not for the major-

ity', AM N.Y. (Apr. 16, 2019), https://www.amny.com/news/politics/jumaane-williams-hud-

son-yards-1.29885838. To be clear, Hudson Yards is being built in phases, and sizeable

components of the development remain to be constructed. Anna Fixsen, Everything You Need

to Know About the Hudson Yards Opening, ARCHITECTURAL DIGEST (Mar. 13, 2019), https://

www.architecturaldigest.com/story/everything-you-need-to-know-hudson-yards-nyc-opening.

8 See Haag, supra note 5. 9 See Kriston Capps, The Hidden Horror of Hudson Yards Is How It Was Financed,

CITYLAB (Apr. 12, 2019), https://www.citylab.com/equity/2019/04/hudson-yards-financingeb5-investor-visa-program-immigration/586897/; Kriston Capps, Another Reason to Hate

Hudson Yards, N.Y. TIMES (Apr. 16, 2019), https://www.nytimes.com/2019/04/16/opinion/ hudson-yards.html.

10 See Michael Greenberg, Tenants Under Siege: Inside New York City's Housing Crisis,

N.Y. REV. BOOKS (Aug. 17, 2017), https://www.nybooks.com/articles/2017/08/17/tenantsunder-siege-inside-new-york-city-housing-crisis/. Housing affordability is also a major issue in

other parts of the United States, as indicated by the attention that it is receiving from federal

politicians. See Sam Ross-Brown, Democrats Get Serious About Affordable Housing, AM.

PROSPECT (June 26, 2019), https://prospect.org/article/democrats-get-serious-about-affordable-

housing.

11 NYU FURMAN CTR., STATE OF NEW YORK CITY'S HOUSING AND NEIGHBORHOODS IN 2017 22 (2017) (68% of households rented in 2016). The high cost of owning is likely a major reason for the predominance of rentals. In 2018, the average price of an apartment sold in

Manhattan, admittedly likely the highest cost borough, was $2.06 million-and this was a year

in which real estate values dropped. Vivian Marino, Manhattan Real Estate Slows After Years

of Record Activity, N.Y. TIMES (Dec. 28, 2018), https://www.nytimes.com/2018/12/28/reales-

tate/manhattan-real-estate-slows-after-years-of-record-activity.html.

12 NYU FURMAN CTR., supra note 11, at 25. ("Renter households that spend between 30 and 50 percent of their pre-tax income on gross rent (including utilities) are considered moder-

ately rent burdened. Those spending more than 50 percent of their income on gross rent are

considered severely rent burdened. In 2016, 85.1 percent of extremely low-income renter

households, 77.5 percent of very low-income renter households, and 55.7 percent of low-in-

come households were moderately or severely rent burdened. While rent burden among the

lowest income households remained about the same between 2006 and 2016, rent burden

among low-, moderate-, and middle-income households increased over that time period.").

13 Id. 14 See THE CITY OF N.Y., HOUSING NEW YORK 2.0 23, https://wwwl.nyc.gov/assets/hpd/

downloads/pdf/about/hny-2.pdf (last visited Sept. 20, 2019) [hereinafter HOUSING NEW YORK 2.0].

15 NYU FURMAN CTR., NYCHA'S OUTSIZED ROLE IN HOUSING NEW YORK'S POOREST

HOUSEHOLDS 3 (2018), https://furmancenter.org/files/NYCHABrief_12-17-18.pdf.

16 OKSANA MIRONOVA, A GUIDE TO RENT REGULATION IN NEW YORK CITY: HOW IT IT 5 (2019), https://smhttp-ssl-58547. ("966,000 apartments

nexcesscdn.net/nycss/images/uploads/pubs/RentRegExplainerV6.pdf

WORKS, WHAT WENT WRONG, AND HOW TO FIX

(45 percent of the rental market) are classified as rent stabilized, primarily in buildings with six

or more apartments built before 1974"). Rent stabilization is by far the dominant form of rent

regulation in the City.

17 See NYU FURMAN CTR., supra note 15, at 3. The New York City Public Housing Authority (NYCHA) is "the largest landlord" in the City, and it owns "almost nine percent of

all occupied rental housing." Id. at 2. New York differs from other major U.S. cities because it

has retained a large amount of publicly-owned housing, although the long-term decline in

federal funding for maintaining this housing is forcing the City to revisit its existing approach to public housing. On other cities, see ERIC KLINENBERG, PALACES FOR THE PEOPLE 80, 81 (2018) (discussing transformation of public housing in Chicago). On New York City's plans

for revamping public housing, see THE CITY OF N.Y., NYCHA 2.0: PART 1, https:// wwwl.nyc.gov/assets/nycha/downloads/pdf/NYCHA-2.0-Part1.pdf (last visited Sept. 20, 2019).

18 See, e.g., ALEXANDER, supra note 1, at 26-59, 73-78 (assessing Jefferson and Hamil-

ton's views, respectively).

19 This Essay not only supplements the book by extending its analytical framework to a

contemporary topic, but also by adding to the scope of the issues subject to the book's frame-

work. Urban land use policy is not much discussed in the book, as evidenced by the absence of a reference to Village of Euclid v. Ambler Realty Co., 272 U.S. 365 (1926) in the index.

20 As is implicit in this sentence, I interpret all of the academics participating in this debate as publicly-minded. However, city policies inevitably benefit some interest groups

more than others. Developers-as well as building owners and landowners-clearly have

large stakes in the debate about housing policy and developers in particular are likely to favor

policies that facilitate new development. Other interested parties include tenants, homeowners

and actors servicing the real estate industry.

21 The political process has not focused solely on land use changes as a way of addressing the affordable housing crisis. In June 2019, New York State strengthened rent regulation in

the City in response to the affordable housing crisis. Sharon Otterman & Matthew Haag, Rent Regulations in New York: How They'll Affect Tenants and Landlords, N.Y. TIMES (June 12, 2019), https://www.nytimes.com/2019/06/12/nyregion/rent-regulation-laws-new-york.html; Luis Ferr6-Sadurni, How New Rent Laws in N.Y. Help All Tenants, N.Y. TIMES (June 21,

2019), https://www.nytimes.com/2019/06/21/nyregion/rent-laws-new-york.html. The State's

actions followed earlier efforts by the City to boost protections for tenants, for example by

establishing a right to counsel for low-income tenants facing eviction. Alexis Captanian, Policy Breakfast on Recent Tenant Protection Laws in New York City, NYU FURMAN CTR.: THE STOOP (Nov. 4, 2019), https://furmancenter.org/thestoop/entry/policy-breakfast-on-recent-ten

ant-protection-laws-in-new-york-city.

22 ALEXANDER, supra note 1, at 1. 23 See id. at 73-78 (discussing views of Hamilton).

24 An upzoning is a change to the Zoning Resolution that "generally increases the amount of square feet of building that can be developed." ZONED OUT! RACE, DISPLACEMENT, AND CITY PLANNING IN NEW YORK CITY 21 (Tom Angotti & Sylvia Morse eds., 2016).

25 See Vicki Been, Ingrid Gould Ellen & Katherine O'Regan, Supply Skepticism: Hous-

ing Supply and Affordability, 29 HOUS. POL'Y DEBATE 25, 30, 36 (2019).

26 On the idea of "inclusive growth," see generally ORG. ECON. COOPERATION & DEV.,

THE FRAMEWORK FOR POLICY ACTION ON INCLUSIVE GROWTH (2018), https://www.oecd.org/ mcm-2018/documents/C-MIN-2018-5-EN.pdf.

27 In broad terms, mandatory inclusionary zoning is a policy that requires developers to

set aside a share of new developments for affordable housing. For example, developers might be required to set aside 20% of units in a new market-rate development for housing that is affordable to individuals whose incomes fall below a certain threshold. For more explanation, see generally Vicky Chau & Jessica Yager, Zoning for Affordability: Using the Case of New York to Explore Whether Zoning Can Be Used to Achieve Income-Diverse Neighborhoods, 25 N.Y.U. ENVTL. L.J. 1 (2017).

28 See also Richard C. Schragger, The Limits of Localism, 100 MICH. L. REV. 371, 373-74 (2001) (problematizing localism in the wake of Chicago v. Morales, 527 U.S. 41 (1999), which struck down an anti-gang Chicago ordinance that had community support in the

inner-city areas where it was enforced).

29 For further elaboration of Jefferson's views on cities, see sources cited infra note 100. See generally LANCE BANNING, THE JEFFERSONIAN PERSUASION: EVOLUTION OF A PARTY IDEOLOGY (1978) (defining Jeffersonian ideology); Schragger, supra note 28, at 380 n. 29 (describing Jefferson as a proponent of local self-government, citing Joan C. Williams, The

Constitutional Vulnerability of American Local Government: The Politics of City Status in American Law, 1986 WiS. L. REV. 83, 105-06 (1986 .

30 See also Schragger, supra note 28, at 381 (associating localism with "decentralization

to the neighborhood level").

31 In his landmark article The City as a Legal Concept, Professor Gerald Frug assimi-

lated arguments for greater city, neighborhood and regional government, treating them all as arguments for greater local control. The current division in New York City between the de-

fenders of neighborhoods and those who focus on growing the City as a whole emphasizes that

in some cases there are divisions among those who support greater urban power. Frug recog-

nized this point, but he was focused first and foremost on expanding local authority, whether it be at the neighborhood, city or regional level. See Gerard E. Frug, The City as a Legal Concept, 93 HARV. L. REV. 1057, 1061-62 (1980).

32 See JANE JACOBS, THE DEATH AND LIFE OF GREAT AMERICAN CITIES 112-40 (1961). 33 Professor Alexander addresses the importance of community in his latest book. See

GREGORY S. ALEXANDER, PROPERTY AND HUMAN FLOURISHING 75-100 (2018).

34 See RENAE WIDDISON, JEN BECKER & ELENA CONTE, FLAWED FINDINGS: How NYC's APPROACH TO MEASURING DISPLACEMENT RISK FAILS COMMUNITIES 7 (2018), https:// www.prattcenter.net/sites/default/files/flawed-findingsfullreportprattcenterO.pdf.

35 See ZONED OUT!, supra note 24, at 36. 36 The City Council approved a sixth neighborhood rezoning in Staten Island in June 2019. See Caroline Spivack, Rezonings Transform NYC Neighborhoods-But the City Doesn't Meaningfully Study Their Impacts, CURBED (May 8, 2019), https://ny.curbed.com/2019/5/8/ 18535693/nyc-neighborhood-rezonings-ceqr-environmental-review-city-council; Sadef Ali Kully, Council Approves Bay Street Rezoning, the Sixth Under De Blasio's Housing Plan, CITY LIMITS (June 26, 2019), https://citylimits.org/2019/06/26/council-approves-bay-street-re

zoning-the-sixth-under-de-blasios-housing-plan/.

37 See Mandatory Inclusionary Housing, N.Y.C. DEP'T OF CITY PLANNING, https:// (last updated

www1.nyc.gov/site/planning/plans/mih/mandatory-inclusionary-housing.page Mar. 22, 2016).

38 See J. David Goodman, Amazon Pulls Out of Planned New York City Headquarters,

N.Y. TIMES queens.html; J. David Goodman et al., Titans of Real Estate in 'Shock' Over New York Rent

(Feb. 14, 2019), https://www.nytimes.com/2019/02/14/nyregion/amazon-hq2-

I. CONTEMPORARY URBAN CENTRALISM

Law Deal, N.Y. TIMES (June 12, 2019), https://www.nytimes.com/2019/06/12/nyregion/land lord-rent-protection-regulation.html; John Leland, Real Estate Thought It Was Invincible in New York. It Wasn't., N.Y. TIMES (Nov. 29, 2019), https://www.nytimes.com/2019/11/29/ nyregion/real-estate-industry-nyc.html; Stefanos Chen, The People vs. Big Development, N.Y.

TIMES

(Feb. 7, 2020), https://www.nytimes.com/2020/02/07/realestate/the-people-vs-big-de

velopment.html.

39 As of spring 2019, rents continued to increase, while sale prices were softening. Elizabeth Kim, Report: Rents in NYC Hit Record Highs as Albany Mulls Reforms, GOTHAMIST (Apr. 18, 2019), https://gothamist.com/2019/04/18/nyc rents-toodamnfhigher.php.

40 Henry Goldman, Cuomo Blames Trump Tax Plan for Reduced New York Tax Collec-

tions, BLOOMBERG

(Feb. 4, 2019), https://www.bloomberg.com/news/articles/2019-02-04/

cuomo-blames-trump-tax-plan-for-reduced-new-york-tax-collections; Hansi Lo Wang, Su-

preme Court to Decide Whether 2020 Census Will Include Citizenship Question, NPR (Feb. 15, 2019), https://www.npr.org/2019/02/15/692656180/supreme-court-to-decide-if-2020-census-includes-citizenship-question. Thank you to Danielle Spiegel-Feld for prodding me to

think about the potential impact of Trump Administration policies on New York City.

41 Greg David, Rent Reform: We've Just Created the Next NYCHA, CRAIN's N.Y. Bus.

(June 12, 2019), https://www.crainsnewyork.com/greg-david-new-york/rent-reform-weve-justcreated-next-nycha; Daniel Geiger, Fed Up: Major Landlords Consider Exiting New York, CRAIN's N.Y. Bus. (Aug. 20, 2019), https://www.crainsnewyork.com/real-estate/fed-major-

landlords-consider-exiting-new-york; Luis Ferr6-Sadurni and Stefanos Chen, Rent Laws' Impact: Tenant Paradise or Return of the 'Bronx is Burning'?, N.Y. TIMES (June 17, 2019), https://www.nytimes.com/2019/06/17/nyregion/rent-regulation-nyc.html.

42 ALEXANDER, supra note 1, at 8.

43 See, e.g., Vicki Been, City NIMBYs, 33 J. LAND USE & ENVTL. L. 217 (2018); Been et

al., supra note 25.

44 See, e.g., Roderick M. Hills, Jr. & David N. Schleicher, Balancing the "Zoning Budget," 62 CASE W. RES. L. REV. 1 (2011) [hereinafter Hills & Schleicher, Balancing the "Zoning Budget"]; Roderick M. Hills, Jr. & David Schleicher, Planning an Affordable City, 101 IOwA L. REV. 91 (2015) [hereinafter Hills & Schleicher, Planning an Affordable City]; David Schleicher, Stuck! The Law and Economics of Residential Stagnation, 127 YALE L.J. 78 (2017).

45 See, e.g., John Infranca, The New State Zoning: Land Use Preemption Amid a Housing

Crisis, 60 B.C. L. REV. 823 (2019).

46 See Christopher S. Elmendorf, Beyond the Double Veto: Land Use Plans as Preemptive Intergovernmental Contracts, 71 HASTINGS L.J. 79, 79 (2019); see also Chris Elmendorf & Darien Shanske, Auctioning the Upzone: A New Strategy to Induce Local Government Com-

pliance with State Housing Policies, 69 CASE W. RES. L. REV. (forthcoming 2020), https://

papers. ssrn.com/sol3/papers.cfm?abstractid=3448750&download=yes.

47 See Moira O'Neill, Giulia Gualco-Nelson & Eric Biber, Getting it Right: Examining the Local Land Use Entitlement Process in California to Inform Policy and Process (Berkeley

Law, Ctr. for Law, Energy & the Env't, Working Paper No. 2, 2018), https://www.law.berke-

ley.edu/wp-content/uploads/2019/02/Examining-the-Local-Land-Use-Entitlement-Process-inCalifornia.pdf; Moira O'Neill et al., Developing Policy from the Ground Up: Examining Entitlement in the Bay Area to Inform California's Housing Policy Debates, 25 HASTINGS ENVTL. L.J. 1, 5 (2019).

48 See John Mangin, The New Exclusionary Zoning, 25 STAN. L. & POL'Y REV. 91

(2014) [hereinafter Mangin, The New Exclusionary Zoning]; see also John Mangin, Ethnic Enclaves and the Zoning Game, 36 YALE L. & POL'Y REV. 419, 420-21 (2018).

49 See Been et al., supra note 25, at 31 (referring to the potential that local constraints on housing development can affect national economic growth); id. at 32-33 (summarizing the

evidence); Schleicher, supra note 44, at 115-17 (summarizing the evidence).

50 Been et al., supra note 25, at 26; see also David Schleicher & Roderick M. Hills Jr., A Not-So-Quiet Revolution in Land-Use Law? Scaling Up the Zoning Process, NYU FURMAN

CTR.: THE DREAM REVISITED (Mar. 2019), http://furmancenter.org/research/iri/essay/a-not-so-

quiet-revolution-in-land-use-law-scaling-up-the-zoning-process.

Professor Been's testimony to the Commission examining changes to the New York City

Charter indicates a commitment to a vision of inclusive growth for the City. She warned

against adding a requirement to the Charter mandating comprehensive planning "Because

comprehensive planning can foster and empower NIMBYism and can be an exclusionary tool.

Depending upon the specifics of the comprehensive planning process, each neighborhood in New York City can seek a plan that protects that neighborhood's special character, its density, open space, student/teacher ratios, historic buildings, and so on. But if every neighborhood

does so, it will become even harder than it is now to build the housing, infrastructure, and other projects that the city needs to ensure that people can afford to live here." Testimony of

Vicki Been Before the N.Y.C. Council Charter Revision Comm'n 6 (Mar. 21, 2019), https://

furmancenter.org/files/testimonies/Been-testimonytocharterrevisionrevised.pdf [hereinafter Testimony of Vicki Been]. See also id. at 9 ("A mandate for a comprehensive plan could

make an already lengthy, unpredictable, and costly land use process even more onerous by

providing yet another veto point or opportunity for holdup to NIMBY interests. This would come at the expense of more equitable development for those who have been shut out of many

neighborhoods and housing opportunities because of their income, race, or ethnicity.").

51 Support for central oversight of land use regulation is implicit in the concern with

delegating too much authority to neighborhoods to regulate land use. See Testimony of Vicki

Been, supra note 50.

52 See Schleicher & Hills, supra note 50; see also Elmendorf & Shanske, supra note 46, at 8 (advocating state oversight of local auctions of development allowances on the assumption

that the state will favor densification).

53 See ALEXANDER, supra note 1, at 75-78.

54 See id.; see also BANNING, supra note 29, at 129 ("Hamilton's ideal was a great republic, and his model for greatness was Britain."); id. at 135, 139-40 ("nation-building"); id. at 190, 202; DREW R. McCoy, THE ELUSIVE REPUBLIC: POLITICAL ECONOMY IN JEFFERSONIAN AMERICA 133-34 (1980); RON CHERNOw, ALEXANDER HAMILTON chs. 6, 9, 13, 15 (2004)

(referring to nation-building in chapter 13).

55 CHERNOw, supra note 54, at 258 (the executive would be the "engine" that would steer

the machinery).

56 See id. (Hamilton described the executive as the engine of the machinery of govern-

ment in Federalist No. 70).

57 Nestor Davidson describes Hamilton as adopting a "social function theory" of property, according to which property was to promote development. Like me, Davidson also sug-

gests that Hamilton's vision of property is reflected in urban land use policy, pointing to the

"developmental imperative" evident in Kelo v. New London. Nestor M. Davidson, Sketches for a Hamiltonian Vernacular as a Social Function of Property, 80 FORDHAM L. REV. 1053, 1055-56 (2011); see also id. at 1067-68.

It is partly because of the differences between urban centralists and Hamilton's program

that I moved away from labelling them modern-day Hamiltonians. For example, as mentioned

above, some of the centralists are concerned about the distributional consequences of urban

growth, and trying to ensure that low-income households are able to remain in the city. Hamil-

ton was not especially concerned about the distributional consequences of some of his propos-

als, such as his funding proposal, to which Madison objected partly because he thought it

would benefit speculators at the expense of "country folk." CHERNOw, supra note 54, at

304-05; see also MCCOY, supra note 54, at 133. On the other hand, Hamilton was a consistent

opponent of slavery, and so while his economic program might have neglected the interests of

some whites, his approach to slavery would have helped African-American slaves that suffered

horribly. CHERNOw, supra note 54, at chapter 15.

58 CHERNOw, supra note 54, at 329. New York City was "so closely associated with

Hamilton that it was called Hamiltonopolis." Id. at 325.

59 See, e.g., Hills & Schleicher, Planning an Affordable City, supra note 44, at 125-29. 60 See, e.g., Been et al., supra note 25, at 26-27 (surveying empirical evidence of the relationship between restrictive land use regulation and high housing prices); Mangin, The New Exclusionary Zoning, supra note 48, at 92 n. 6; Schleicher, supra note 44; Elmendorf, supra note 46; Infranca, supra note 45.

61 Been et al., supra note 25, at 26, 31, 34. 62 Mangin, The New Exclusionary Zoning, supra note 48, at 96. 63 Id. at 94. Been et al. similarly affirm that housing "is Ruled by the Laws of Supply and Demand." Been et al., supra note 25, at 27. Been et al. argue that the limits on the supply of

land in a given jurisdiction "make housing different from many goods, but [state that] the

difference is one of degree: the supply of housing can and does increase even in constrained

markets, and prices should generally fall in response"). Id. at 28.

64 David Schleicher, City Unplanning, 122 YALE L.J. 1670 (2013); Hills & Schleicher, Balancing the "Zoning Budget," supra note 44; Hills & Schleicher, Planning an Affordable City, supra note 44; Elmendorf, supra note 46; Elmendorf & Shanske, supra note 46; Infranca, supra note 45.

65 See Hills & Schleicher, Planning an Affordable City, supra note 44. 66 See Infranca, supra note 45; Elmendorf, supra note 46. 67 For an avowedly normative approach to thinking about the proper allocation of authority between states and local governments, see Nestor M. Davidson, The Dilemma of Localism in An Era of Polarization, 128 YALE L.J. 954 (2019).

68 Been et al., supra note 25, at 29 ("For at least the lowest income households, even the

moderation of rent increases that results from expanded supply will likely be insufficient to

make homes affordable to them. Housing subsidies, of some form, are still needed as well."). See also id. at 33, 35; Testimony of Vicki Been, supra note 50, at 6 ("One of the city's most

pressing issues is how to make housing more affordable for the 1.1 million households who are

rent-burdened-paying 30% or more of their income for housing, so that they don't have enough left over for adequate food, health care and medicine, quality childcare, and other

essentials-or for the nearly 600,000 households who are paying more than half of their in-

come on housing. That requires multi-pronged strategies -to improve people's employment prospects and wages; to increase the supply of housing, especially the "missing middle" of

unsubsidized housing affordable to moderate- and middle- income households; to provide and

preserve subsidized affordable housing, improve and preserve NYCHA housing, and provide low-income tenants with rental assistance; and to provide protections against displacement for

tenants such as rent regulation, limits on eviction, and legal assistance for tenants facing evictions."); Roderick M. Hills Jr., Why Do So Many Affordable Housing Advocates Reject the Law of Supply and Demand?, WASH. POST (Sept. 18, 2018), https://www.washingtonpost.com/

outlook/2018/09/18/why-do-so-many-affordable-housing-advocates-reject-law-supply-de-

mand/?noredirect=ON&utm_term=.363ba86bc6a5

("market-rate housing cannot be the only

solution to the affordability crisis in our most expensive cities"); Ingrid Gould Ellen, The Truth

About Gentrification: It Doesn't Accelerate Displacement of Low-Income Residents, Though It

May Have Other Negative Consequences, N.Y. DAILY NEWS (Aug. 22, 2019), https://www.ny dailynews.com/opinion/ny-oped-the-truth-about-gentrification-20190822-ajjjj65xujgy7j77 qhilwzbnfa-story.html (arguing that "public and other subsidized housing that already exists in

gentrifying neighborhoods" should be preserved).

69 See ALEXANDER, supra note 1, at 135 (referring to "Hamilton's proposal to increase

domestic manufacturing through high import duties"); McCoy, supra note 54, at 155 (refer-

ring to Madison's opposition to Hamilton's plan to subsidize "artificial" monopoly manufac-

turers); id. at 159; CHERNOw, supra note 54.

70 As a 2019 student note emphasizes: "it is important to understand MIH for what it is:

one key component of' the plan for preserving and creating affordable housing introduced

II. CONTEMPORARY URBAN LOCALISM

under Mayor Bill de Blasio. Pablo E. Zevallos, Note, "A Statement About Who Deserves to

Live Here": The Fair Housing Act Implications of Housing New York, 52 COLUM. J.L. & Soc. PROBS. 599 (2019).

71 See, e.g., Tex. Dep't of Hous. & Cmty. Affairs v. Inclusive Cmtys. Project, Inc., 135

S. Ct. 2507, 2523-24 (2015) ("racial quotas ...

raise[ ] serious constitutional concerns").

72 See, e.g., Been et al., supra note 25, at 28 (summarizing research showing housing "filtering up ... in tight markets"); see also Emily Badger et al., The Neighborhood Is Mostly Black. The Home Buyers Are Mostly White., N.Y. TIMES (Apr. 27, 2019), https://www.ny times.com/interactive/2019/04/27/upshot/diversity-housing-maps-raleigh-gentrification.html.

73 See Badger et al., supra note 72. ?4 Id. See also Andre M. Perry & David Harshbarger, America's Formerly Redlined Neighborhoods Have Changed, And So Must Solutions to Rectify Them, BROOKINGS (Oct. 14, 2019), https://www.brookings.edu/research/americas-formerly-redlines-areas-changed-so-

must-solutions/ (analyzing the racial composition and other demographic characteristics of for-

merly redlined neighborhoods).

75 However, there is recent legal scholarship concerned with gentrification and promoting equitable urban revitalization. See, e.g., Kristen Barnes & Andrea J. Boyack, Side By Side:

Revitalizing Urban Cores and Ensuring Residential Diversity, 92 CHI.-KENT L. REV. 435

(2017) (urging reform of housing assistance and zoning to promote equitable urban revitalization, but not focusing on New York City); Sarah Fox, Environmental Gentrification, 90 U.

COLO. L. REv. 803 (2019) (environmental law should address the potential that environmental

improvements, such as new parks, may lead to higher property values that displace low-income residents and people of color, who often are renters); Bethany Y. Li, Now is the Time!: Challenging Resegregation and Displacement in the Age of Hypergentrification, 85 FORDHAM L. REv. 1189 (2016) (identifying legal strategies for challenging displacement, including New York City case study); Olatunde C.A. Johnson, Unjust Cities? Gentrification, Integration, and the Fair Housing Act, 53 U. RICH. L. REv. 835, 841 (2019) (identifying options that cities can use to promote integration amid gentrification); Zevallos, supra note 70 (arguing that elements of the housing plan implemented by New York City under Mayor Bill de Blasio likely violate

the federal Fair Housing Act under a disparate impact analysis).

76 See ZONED OUT!, supra note 24, at 142-43. 77 ALEXANDER, supra note 33, at 75-100; ZONED OUT!, supra note 24. 78 Affidavit of Thomas Angotti 1 6, Northern Manhattan Is Not For Sale v. City of New York, Index No. 161578/2018 (N.Y. Sup. Ct. Dec. 10, 2018) [hereinafter Angotti Affidavit]. See also ZONED OUT!, supra note 24, at 32-38, 150. Professor Angotti also explains that while

"[d]isplacement affects many white neighborhoods as well as communities of color, ... whites

typically are much more mobile and can take advantage of many affordable alternative hous-

ing opportunities. For low-income communities and communities of color, the alternatives are

much more limited due to widespread discrimination in the housing and real estate markets." Id. at 38.

79 ZONED OUT!, supra note 24, at 33, 42, 42, 70-71.

80 Id. at 59-62.

81 Professor Angotti's position is encapsulated in an affidavit he submitted supporting

the petitioners in a lawsuit challenging the City's rezoning of the Inwood neighborhood in Upper Manhattan, which is "74% Latinx and 50% of Dominican origin." Angotti Affidavit, supra note 78, 1 5. That affidavit states: "[T]he Regional Plan Association sees that now that urban walkable areas have become increasingly valued, we have a unique chance to rectify

these past injustices by ensuring current residents can continue to call these areas home. In-

stead, New York City pursues upzonings of these neighborhoods, such as Inwood, East Har-

lem, Williamsburg, and more, which speeds gentrification and displacement of low income people of color."). Id. 1 14. See also Greenberg, supra note 10. The Regional Plan Association is an "independent, non-profit civic organization that ...conduct[s] research on transportation, land use, housing, good governance, and the environment, and advise[s] cities, communities, and public agencies." REGIONAL PLAN ASSOCIATION, https://rpa.org/index.php?p=about (last visited June 24, 2020).

82 See also ZONED OUT!, supra note 24, at 27, 29-31. 83 Angotti Affidavit, supra note 78, 1 12. See also ZONED OUT!, supra note 24, at 27,

29-31.

84 See ZONED OUT!, supra note 24, at 29 ("The argument that zoning policy is needed to

stimulate the housing market is grounded in a simplistic version of neoclassical economic

theory. It presumes that the lack of housing is simply a matter of supply and demand."); see

also id. at 27.

85 See id. at 27-28. See also id. at 36-37. 86 Angotti Affidavit, supra note 78, 1 7, 9. See also ZONED OUT!, supra note 24, at 41. The City's methodology for evaluating displacement from rezonings in the environmental review process was upheld in Ordonez v. City of New York, No. 450100/2018, 2018 WL 3385054 (N.Y. Sup. Ct. July 11, 2018).

Others also have also proposed that the City should analyze the impacts of policy choices, such as major neighborhood rezonings, based on race. See, e.g., Sadef Ali Kully, Should NYC Evaluate its Housing Policies For Their Racial Impact?, CITY LIMITS (June 25, 2019), https:// citylimits.org/2019/06/25/nyc-housing-racial-impact/; Johnson, supra note 75, at 867. For a

related argument, proposing racial equity impact analysis of highway development and rede-

velopment, see Deborah N. Archer, "White Men's Roads Through Black Men's Homes": Advancing Racial Equity Through Highway Reconstruction, VAND. L. REV. (forthcoming 2020). Seattle is cited as a potential model, as it analyzes the equity implications of major policies

including land use decisions. Kully, supra note 86; see also Johnson, supra note 86, at 867. In

2011, a New York Supreme Court decision preliminary enjoined a development in Bushwick

for violating the Fair Housing Act, partly on the basis that the City "failed to consider the

impact of the development on racial segregation . , despite the requirement to do so, as recipients of federal funds." Broadway Triangle Cmty. Coal. v. Bloomberg, 35 Misc. 3d 167, 176 (N.Y. Sup. Ct. Dec. 23, 2011). In December 2019, a New York Supreme Court decision annulled the City Council's rezoning of the Inwood neighborhood partly on the basis that the

..

City's environmental review was inadequate. Northern Manhattan Is Not For Sale v. City of New York, No. 161578/2018, 2019 WL 6916075 (N.Y. Sup. Ct. Dec. 19, 2019). One of the grounds on which the plaintiffs challenged the review was that it did not consider the racial

impact of the rezoning. The decision, which is under appeal as of spring 2020, suggests that

the City should have conducted a racial impact analysis of the rezoning. James Brasuell, Lack

of Racial Impact Analysis Opens Inwood Plan to Legal Challenge in New York City, PLANETIZEN (June 17, 2020), https://www.planetizen.com/news/2020/06/109628-lack-racial-impactanalysis-opens-inwood-plan-legal-challenge-new-york-city.

87 Angotti Affidavit, supra note 78, 1 11; see also ZONED OUT!, supra note 24, at 68-70; Zevallos, supra note 70, at 621, 621 n.107 (analyzing the eligibility of Black and Latino house-

holds in rezoned neighborhoods for housing set-asides under Mandatory Inclusionary Housid. at 630 ing); id. at 623, 623 n.110 (analyzing the eligibility of white households); (summarizing conclusions).

88 ZONED OUT!, supra note 24, at 148. 89 See id. at 156, 162. He also might give communities an effective veto over significant

rezonings, through his proposal to "[r]equire that major rezoning actions be consistent with a

community-based plan and the city's strategic, comprehensive plan." Id. at 162.

90 Id. at 156 ("All of this may require another change to the city charter that re-balances

the distribution of power away from a top-down system with a strong mayor who oversees

powerful agencies, while the more than eight million residents of the city only get to deal with

the weaker city council and even weaker community boards.").

91 Id. at 160-63.

92 Id. at 163. The City's Housing Plan includes promoting community land trusts. Hous-

ING NEW YORK 2.0, supra note 14, at 16.

93 Angotti Affidavit, supra note 78, 1 8. 94 See Been et al., supra note 25.

95 Mangin, The New Exclusionary Zoning, supra note 48. 96 Id. at 91. 97 See Been, supra note 43, at 218, 245.

98 Anti-Federalism might be another example of localism in American political thought.

For example, Carol Rose argues that localism was embedded in Anti-Federalism, and that

local land regulation reflects the localist legacy of Anti-Federalism. Carol M. Rose, Ancient

Constitution vs. the Federalist Empire: Anti-Federalism from the Attack on "Monarchism" to Modern Localism, 84 Nw. U. L. REv. 74-75, 98-99 (1989). Consistent with this article's point that neighborhoods are the site for localism in New York City, Rose suggests that "some

cities" are so large that "sub-political bodies, such as neighborhood associations," are "the

locus" for civic engagement. Id. at 96. On the relationship between Anti-Federalism and Jef-

fersonianism, see BANNING, supra note 29, at 114-15. See also id. at 140 ("The Hamiltonian

program .

..was aimed against the old American evil of localism.").

99 BANNING, supra note 29, at 198, 264-65, 275, 284 (Republicans supported states' rights as a means to the end of protecting liberty); CHERNOw, supra note 54, at ch. 16 (Jeffer-

son wanted to preserve state sovereignty and weak executive). However, Jefferson supported

local government; he favored dividing "counties into wards," and envisioned "these wards as

places in which the yeoman farmer would play a personal part in the administration of public

affairs." Schragger, supra note 28, at 380 n.29 (citing Williams, supra note 28).

100 See supra note 81 (excerpting information on the demographics of the Inwood neigh-

borhood in New York City).

As suggested in the text, one reason that it would be inappropriate to describe contempo-

rary urban localism as "Jeffersonian" is that contemporary community advocates focus on

protecting urban, low-income neighborhoods with many Black and Latinx renters. Jefferson

was a slave owner who regarded cities as corrupt and endorsed fee simple landownership as

the basis for the desirable "social order." ALEXANDER, supra note 1, at 28. See also id. at 34

(Jefferson valued fee simple landownership partly because it would provide a "stable founda-

tion for republican politics."); id. at 28 ("The republican ideology to which Jefferson was so

firmly attached seemingly required a stable polity and a stable institution of property to serve

as the central devices for creating the appropriate political and social order."). For more on

Jefferson's views, see generally CHERNOw, supra note 54, at chapter 16; BANNING, supra note

29; McCoy, supra note 54; Charles A. Beard, Jefferson and the New Freedom, NEw REPUBLIC

(Nov. 14, 1914), https://newrepublic.com/article/63628/jefferson-and-the-new-freedom; Stephen E. Ambrose, Founding Fathers and Slaveholders, SMITHSONIAN MAG. (Nov. 2002), https://www.smithsonianmag.com/history/founding-fathers-and-saveholders-72262393/; Clay

Jenkinson, Thomas Jefferson, Epidemics and His Vision For American Cities, GOVERNING

(Apr. 1, 2020), https://www.governing.com/context/Thomas-Jefferson-Epidemics-and-His-Vi-

sion-for-American-Cities.html. For a meditation on the contemporary relevance of Jefferson

by a leading scholar of Jefferson, see Annette Gordon-Reed, Charlottesville: Why Jefferson Matters, N.Y. REV. BOOKS (Aug. 19, 2017), https://www.nybooks.com/daily/2017/08/19/char lottesville-why-jefferson-matters/.

101 Rose, supra note 98, at 90. 102 Id.; BANNING, supra note 29, at 107; see also Frug, supra note 31, at 1069 ("As the tradition from Aristotle to Rousseau emphasizes, individual involvement in decisionmaking is

impossible except on a small scale.") (footnote omitted). Madison rejected Montesquieu's ar-

gument that a republic needs to be small, "arguing that representative institutions made it

possible to create a large republic." Rose, supra note 98, at 90.

While Jefferson expanded the territory of the United States through

the Louisiana

Purchase, this expansion was to some extent consistent with his preference for small-scale

government. See BANNING, supra note 29, at 279. For Jeffersonians, the Louisiana Purchase

would help to maintain the agrarian character of the United States by providing a new territory for agricultural settlement. McCoy, supra note 54, at 62-63, 121-22, 156-57, 194-95, 199, 200-01, 203, 248. As mentioned below, Jeffersonians thought that an agricultural republic was

more likely to avoid slipping into despotism as middling farmers would have the independence

to maintain republicanism.

103 CHERNOW, supra note 54, at 320. 104 Id. (Jefferson favored weak executive and protecting state sovereignty); BANNING,

supra note 29, at 292.

105 BANNING, supra note 29, at 204 ("Classical-republican analyses ...

taught [that the]

poor could not afford the independence of mind that citizenship required .

..America had

come to be defined, in part, in terms of its relatively equal, agrarian balance of property."); see also id. at 158-59, 171, 199, 203-04; McCoy, supra note 54, at 68-69, 126-28, 131; ALEXANDER, supra note 1, at 34 (Jefferson valued fee simple landownership partly because it would provide a "stable foundation for republican politics."). The idea that a relatively equal distribu-

tion of agricultural landownership is conductive to republicanism or democracy has a long

lineage. See BANNING, supra note 29, at 30, 46 (tracing the idea to Aristotle and Harrington);

id. at 51 (referring to historical antecedents of the idea that independence is a prerequisite for

"political participation"); Rose, supra note 98, at 92 (Montesquieu affirmed that "gross dispar-

ities in wealth were corrupting in a republic" and "[s]ome Anti-Federalist writings followed

Montesquieu" on this point (citing 1 MONTESQUIEU, THE SPIRIT OF THE LAWS bk. V, 52-57 (Legal Classics Library spec. ed. 1984) (1748); McCoy, supra note 54, at 39 (discussing Smith's views of "the laboring poor"); id. at 56 (physiocrats on agriculture).

106 For balance, it is worth noting that there are many critiques of rent regulation. As an example, Roderick Hills, Jr. describes rent control as part of the "incumbent economy" that

favors "people who already hold an entitlement," in this case reasonably-priced rental apart-

ments, to the disadvantage of new entrants seeking access to the same good. Roderick M. Hills Jr., Rent Control and the Triumph of the Incumbents' Economy, PRAWFSBLAWG (June 19, 2019, 1:35 PM), https://prawfsblawg.blogs.com/prawfsblawg/2019/06/rent-control-and-the-triumph-of-the-incumbents-economy.html.

107 NYU FURMAN CTR., THE STATE OF RENT STABILIZATION IN NEW YORK CITY, http://

furmancenter.org/files/Presentation-for_1stPBFINAL.PDF (last visited Sept. 22, 2019); Video: Policy Breakfast on Reforming Rent Stabilization in New York City, NYU FURMAN CTR.: THE STOOP (Dec. 11, 2018), http://furmancenter.org/thestoop/entry/video-policy-break

fast-on-reforming-rent-stabilization-in-new-york-city; MET COUNCIL ON Hous., Succession

Rights in Rent-Stabilized and Rent-Controlled Apartments, https://www.metcouncilonhous-

ing.org/help-answers/succession-rights-in-rent-stabilized-and-rent-controlled-apartments/

(last

visited June. 24, 2020); Vivian Wang, New Rent Laws Pass in N.Y.: 'The Pendulum is Swinging' Against Landlords, N.Y. TIMES (June 14, 2019), https://www.nytimes.com/2019/06/14/ny region/rent-laws-ny-deal.html.

108 Paradine v. Jane (1647) 82 Eng. Rep. 897 (K.B.). 109 BANNING, supra note 29, at 143, 148, 168, 205. 110 Sophie Kasakove, Big Real Estate Peddles the Myth that New York Rent Control

Mainly Benefits Small Landlords, PAC. STANDARD (June 19, 2019), https://psmag.com/socialjustice/big-real-estate-peddles-the-myth-that-ny-rent-control-mainly-targets-small-landlords.

TABLE 1: MAPPING PREFERENCES OVER SCALE AND STRINGENCY OF LAND USE REGULATION112

CONCLUSION

I1I

See, e.g., ROBERT H. NELSON, ZONING AND PROPERTY RIGHTS: AN ANALYSIS OF THE AMERICAN SYSTEM OF LAND-USE REGULATION (1977); WILLIAM A. FISCHEL, THE ECONOMICS OF ZONING LAWS: A PROPERTY RIGHTS APPROACH (1985). These sources are referenced in Elmendorf & Shanske, supra note 46, at 7 n.25.

112 Thank you to Rick Hills for suggesting the mapping of preferences for the scale and

stringency of regulation using a two-by-two matrix.