In new research, Sarah Schindler and Kellen Zale find that the vast majority of the most populous cities in the United States do not directly notify renters of land-use hearings. Such hearings provide a forum for local members of the public to voice opinions about how land should be used for housing and other construction and inform the decisions of policymakers. The failure to directly notify renters about these hearings can skew the decision-making process—and the housing market— toward homeowners and exacerbate anti-development tendencies in land-use law.
Land-use laws such as zoning ordinances, subdivision regulations, and height and density restrictions are the blueprints that shape what gets built and where. These laws—and the rules and procedures that implement them—are laid out in the municipal codes of thousands of local governments across the United States. A central part of the land-use decision-making process in most localities is a required public hearing on proposed land-use changes. For example, if the owners of an old warehouse want to remodel it into apartments, they might need a rezoning or other type of discretionary permit. Likewise, an owner of a vacant parcel seeking to build a mix of single-family homes and townhouses may need a subdivision permit or variance from height and density requirements. Before deciding whether to grant or deny such land-use permits, the local government is generally required to hold a public hearing, where members of the public can voice their concern, support, or opposition. Although local decision-makers are not required to follow the majority opinion expressed at these hearings, research has shown that they often do so—especially when those opinions are voiced by homeowners.
While land-use hearings are theoretically open to all members of the public, research has shown that, as compared to general demographics of the community, participants at these hearings are more likely to be white, wealthier, older, and homeowners. Those who comment at public hearings also tend to be “NIMBYs,” meaning they disfavor the construction of new housing in their neighborhoods. In contrast, the voices of renters, who are disproportionately lower-income and people of color, are often missing from the land-use decision-making process. While accessibility, scheduling, and language barriers play a role in this systemic disempowerment, we contend that the underrepresentation of renters in local land-use decision-making stems from something even more foundational: a failure to invite them.
In our novel empirical analysis of notice requirements in the municipal codes of the 75 most-populous U.S. cities, we found that the vast majority of these cities do not require direct notice to renters in the face of proposed nearby land-use changes. Of these 75 cities, only 12 require mailed notice of public ​land-use hearings to renters. In contrast, nearly all require notice to be mailed to property owners within a designated distance of the property that is the subject of the hearing (the exact distance varies by jurisdiction and land use application type, but it is typically a few hundred feet). Neighboring renters residing within this same distance are not mailed notice about upcoming land-use hearings in the majority of these cities—sometimes even when the property that is the subject of the hearing is the very property the renter lives in!
We argue that a consequence of this selective notification practice is the amplification of anti-development sentiments predominantly expressed by homeowners. Numerous studies have documented the outsized effect homeowner opposition and NIMBYism have on local land use decisions. The result is that there is now a critical housing shortage crisis in this country, with studies finding that over four million more housing units are needed just to keep up with current population trajectories. Economists have noted that this undersupply of housing is a significant drag on our economy and contributes to myriad negative outcomes, from environmental harms to workforce shortages to housing insecurity.
While reasons for this housing shortage are multi-causal, the status quo of non-notice to tenants in most jurisdictions makes it less likely that the pro-housing views held by some renters will be heard by decision-makers. Moreover, the failure to provide tenants with the same type of notice that nearby owners receive entrenches long-standing racial and class biases: The majority of Black and Latinx families, 58% and 52% respectively, in the U.S. are renters, due to a long history of structural racism and legal exclusion, and renters on average have just 1/89th the wealth of homeowners. The exclusionary practice of failing to provide notice to tenants forms part of a broader pattern of anti-tenancy, systematically favoring homeowners over similarly situated tenants. While providing notice of land-use hearings to tenants cannot guarantee a greater diversity of voices at land use hearings, the prevailing practice of non-notice means renters have less knowledge about, and thus less opportunity and power to influence, the development decisions in their neighborhoods. This contributes to a deepening of long-standing structural inequities and disempowerment of historically marginalized groups. Therefore, even a modest nudge to rebalance the current system and invite tenants to participate merits consideration.
To this end, we propose a model ordinance that would provide tenants with notice of land-use hearings on similar terms to homeowners. This model ordinance expressly provides for direct notice to tenants residing at the property that is the subject of the land-use hearing, as well as to tenants residing within a statutorily specified distance from the subject property. Notices addressed to “Occupant” or “Resident” would be sufficient to satisfy statutory notice requirements. Our model ordinance offers a tangible path forward—one that is both feasible and cost-effective. Notifying tenants of hearings could shift land-use processes towards more efficient outcomes, as well as open up the opportunity for participation and transparency, two of the core goals of good governance.
In proposing this reform, we are cognizant of the fact that the role of public participation in land use decisions is contested: some scholars have argued that public participation can produce less efficient outcomes, contributing to the construction of fewer housing units. Yet, while recognizing these concerns, “leveling-up” notice to renters to provide parity with owners is likely to be more politically feasible than proposals to reduce public participation by owners: as research on the entitlement effect by behavioral economists demonstrates, removing rights or reducing entitlements that have already been granted is more difficult than granting additional rights or entitlements to those who are currently excluded. Further, our proposed reform to provide notice to tenants on par with that provided to owners serves to advance some of the very same goals that politically contested leveling-down proposals seek to achieve: putting in place conditions to make it more likely that needed housing receives public support and dampening the anti-development impact that homevoters often have, both as a matter of practice and as a matter of law.
By providing empirical data to explain what is happening in cities across the country with respect to a key function of local government—land use—our research provides a fuller descriptive picture of whose voice counts and why. Although our data necessarily reflects a subset of all U.S. cities, these 75 cities represent the locations where nearly 20% of the entire U.S. population lives. Further, the data reflects where millions of renters reside: in several cities we analyzed, renters make up a majority or near-majority of households. Thus, our research on notice requirements in these cities provides insight into how the land use process engages—or fails to engage—many renters. With over a third of Americans currently renting, and housing shortages destabilizing communities across the country, it is critical to better understand and address the underrepresentation of renter voices in land use decisions.
This essay draws on the research from the authors’ article, “Neighbors Without Notice,” which is forthcoming in the Harvard Civil-Rights Civil-Liberties Law Review (Vol. 59.2).
Articles represent the opinions of their writers, not necessarily those of the University of Chicago, the Booth School of Business, or its faculty.
