Are Apartments a Nuisance? Private Property and The Rise of Zoning

, and | January 12, 2021 | Property

In this episode of Short Circuit, a podcast from The Institute for Justice, Harvard Law Professor Molly Brady joins us to talk about an untold story from the rise of zoning law. A lot of the blame for our affordable housing crisis is often placed on the case Euclid v. Ambler Realty, where the Supreme court declared zoning (which includes prohibiting apartments) constitutional. But zoning was not the first try at limiting multifamily housing in certain neighborhoods. Professor Brady discusses how property covenants and nuisance law were employed to limit the availability of housing, and how when that didn’t work planners turned to the heavy hand of zoning. Along the way we discuss property deeds, spontaneous order, immigration, and the ever-beloved Coase Theorem.

Short Circuit is your concise (and sometimes irreverent) source for important and interesting cases and legal stories you might otherwise have missed. Launched by the Institute for Justice (IJ) in 2015, Short Circuit started off as a short weekly newsletter rounding up the most interesting developments in the federal circuit courts of appeal. Today, Short Circuit includes more than just our popular weekly newsletter: we host a bi-weekly Short Circuit podcast, we regularly tweet out entertaining summaries of state constitutional history, and we produce a longform podcast series. Learn more about each of these below, and see what others are saying about Short Circuit.

 

 

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The Institute for Justice

The Institute for Justice is the National Law Firm for Liberty. IJ litigates to limit the size and scope of government power and to ensure that all Americans have the right to control their own destinies as free and responsible members of society.

Anthony Sanders

Institute for Justice, Center for Judicial Engagement

Anthony Sanders is the Director of the Institute for Justice’s Center for Judicial Engagement (CJE), and a senior attorney. He joined IJ in 2010. As CJE’s director, he educates the public about the proper role of judges in enforcing constitutional limits on the size and scope of government. As a senior attorney he litigates cutting-edge constitutional cases protecting economic liberty, private property, freedom of speech and other individual liberties in both federal and state courts across the country.

Maureen E. Brady

Associate Reporter, The Restatement of the Law Fourth, Property

Maureen (Molly) E. Brady is an assistant professor of law at Harvard Law School, where she teaches property law and related subjects. Her scholarship uses historical analyses of property institutions and land use doctrines to explore broader theoretical questions. Her current research projects involve the evolution of nuisance rules, the privatization of public space, and state constitutional takings law.

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