2C —April 23 - May 20, 2021 — Spring Preview — M id A tlantic Real Estate Journal


By Neil A. Stein, Kaplin Stewart You say goodbye and I say hello. Will local zoning give way to a federal replacement? A ttorney


he economist, Milton Friedman, was a pro- ponent of local gov-

power includes the adoption of zoning regulations. Penn - sylvania has 2,561 municipal- ities, andmost have their own zoning codes. Zoning can, at times, unfairly shape where people live and how they live. The federal government has little influence on local zoning decisions, except for certain environmental regulations. Local governments argue that zoning decisions are best made by those most affected – local residents. Sometimes, however, pejorative zoning power is often vested in a few

individuals with uniquely personal perceptions about what is best for the com- munity. The result may be an institutional bias against affordable housing in favor of “exclusionary” single-family zoning. Exclusionary zoning can be created explicitly, as in the form of minimum lot size requirements, or implicitly by expensive fees and exactions that drive up construction costs and hous- ing prices. Critics argue that single-family zoning districts increase housing costs, create

unwanted sprawl and per- petuate racial segregation. President Biden’s recently announced infrastructure plan proposes to remedy the shortage of affordable housing. Proponents argue that homeownership is too expensive to be affordable and that single-family zon- ing must be “killed off” so as to eliminate the resulting inherent racial and social inequities. Opponents argue the plan will create a much higher density, burdening schools, public safety, and the

environment while driving up property taxes. The Biden proposal is more of a carrot than a stick, of- fering grants to those juris- dictions that work to elimi- nate exclusionary zoning. In other words, if a municipality agrees to weaken or elimi- nate single-family zoning, it gets federal money as a reward. However, the car- rot will do little to change the minds of certain affluent communities, which get along fine without federal money. Therefore, some argue for the stick, i.e., withholding federal transportation grants for road repair from suburbs that refuse to kill off single- family zoning. What has yet to be explored is the federal government’s ownership of nearly one-third of all prop- erty in the United States, which is generally exempt from local zoning. Might the federal government go into the development business in a big way? Would the federal government use its power of eminent domain to ac- quire private property for the development of affordable housing? These and many other questions, for now, are unanswered. Creating a federalist sys- tem of zoning will be a tough sell in Congress. California recently tried to kill off single-family zoning unsuc- cessfully. There was power- ful opposition from residents who objected to a law that would make their neighbor- hoods denser, noisier, and more filled with traffic. Pre - dominantly minority resi- dents in parts of Los Angeles worried that relaxing zoning rules would not only ruin the low density they enjoyed but might also unleash an investment flood that would accelerate gentrification. The Biden proposal zon- ing will pit libertarians and developers against those committed to preserving lo- cal control. There are plenty of complex, conflicting, and legitimate considerations in the balance, and you know what that means? Lots of litigation that may not be resolved for decades. Neil A. Stein is a princi- pal of Kaplin Stewart and a member of the Land Use, Zoning & Development Department. MAREJ

e r n m e n t autho r i t y . He posited that i f he was unsatis- fied with his community, h e c o u l d simply move to another

Neil A. Stein

community he found desir- able. However, moving from a state or country is far more difficult. Local government

Firmly Rooted in the Law and in the Community We are well grounded in every facet of real estate law, from acquisition to construction. We are committed to serving the needs of our clients and our communities.

Contact: NEIL A. STEIN • nstein@kaplaw.com 910 Harvest Drive, Blue Bell, PA 19422-0765 • 610-941-2469 • kaplaw.com Other Offices: • Cherry Hill, NJ 856-675-1550 • Philadelphia, PA 215-567-3120 Kaplin Stewart A t t o r ne y s a t Law

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