The Logic of Preemption in Connecticut

Chair Cassano, Chair McCarthy Vahey, and members of the joint committee, thank you for inviting me to comment on residential zoning. I study land use regulation and housing markets as codirector of the Urbanity Project at the Mercatus Center at George Mason University. The Mercatus Center uses market-oriented ideas grounded in academic research to address public policy problems at all levels of government.

It is a privilege to come before you again as you consider expanding transit-oriented development. Increasing density around transit stations would promote affordability, conserve municipal resources, have less impact on forest and farmland, and restore property rights. Bipartisan legislation in Massachusetts has set a regional precedent for pushing towns to allow landowners near transit stations to use their land to its fullest potential, in ways that will build on the strengths of traditional New England towns. I have attached a recent op-ed on the likely effects of the Massachusetts law, which are broadly applicable to the legislation before you.

When to Preempt

The real issue at stake with HB 5429 is not the positive effects this bill is likely to have, but whether the state ought to decrease the regulatory authority it has granted municipalities. As a New England native, I am keenly aware that New England towns have been vital institutions for centuries. My hometown elected its own leaders and exerted police powers for a century before the revolution gave residents the right to elect their governor. Notwithstanding this tradition, these local powers have never been boundless and have long been contested and restrained.

There are, I believe, three categories of argument in favor of preempting municipal zoning authority:

1. Property rights. Those who propose to limit citizens’ right to the normal use and enjoyment of their property ought to face the burden of proof. Thus, when state lawmakers deem that there is no compelling reason for a particular restriction—or that the restriction’s costs outweigh its benefits—it is reasonable to ban such a restriction. In the present case, unless the legislature believes that the costs of restrictions on moderate-density residential development within walking distance of transit stations exceed the manifest benefits of such development, it should preempt such bans.
2. Fairness. Municipal governments are responsive mainly to their current residents, so zoning can be tilted toward maximizing incumbent property values and keeping families with schoolchildren out. The state legislature can balance those narrow interests against the interests of Nutmeggers who live outside the towns in question and do not have representation there. In this case, the state can act on behalf of citizens’ interest in finding an affordable place to live in the community of their choice.
3. Solving statewide problems. States are within their rights to preempt local governments when the key levers to achieve some major state goal are held at the local level. For example, recent zoning preemptions have been justified as necessary to address climate change or to increase economic growth. Unlike in the case of property rights, the burden of proof ought to be on the state to show that preempting a traditional domain of local government is in fact necessary to address a statewide problem.

These categories overlap and complement one another. When evaluating a restriction on property rights, for instance, the state must consult groups with a broad range of interests and consider its own policy priorities in determining whether the reasons given in favor of a specific regulatory tool—such as low-density zoning—are compelling.

There are also strong reasons for the state to leave most decisions with primarily local impact to local governments. I would never want to see a state zoning board, and I do not recommend unfunded mandates.

The debate, however, is not about whether the state should ever restrict local authority—it already does. Recalling the three arguments for preemption, the question is whether, in this particular instance,

1. local regulators can make a compelling case that maintaining low-density zoning near transit is sufficiently beneficial to merit restricting the right to use and enjoy private property

and whether that case is outweighed by

2. other citizens’ interest in housing availability or
3. statewide concerns such as environmental protection, housing affordability, and economic growth.

Thus, the bill before you and others like it present substantive, not procedural, questions. State legislatures should not always preempt local authority, nor should they always defer. In my view, the benefits of walkable, moderately dense housing around transit stations far exceed the costs, and the majority of Connecticut residents’ towns will find that such growth makes their towns better places to live in.

Attachment

Salim Furth, “New Mass. Zoning Law Offers a Better Kind of Growth,” Banker & Tradesman, January 2, 2022.