Charles Gardner is a research fellow at the Mercatus Center, where he focuses on planning law and housing affordability. He’s the author of the Old Urbanist blog and has worked on zoning and land use issues as a local elected official. He’s also been an active participant in state policy making, where he served on the Connecticut state advisory committee to the US commission on civil rights. Geoff calls Charlie “a philosopher lawyer” and they discuss property law, its history, and how it shapes our community. Charlie explains the contexts behind landmark Supreme Court cases, as well as the philosophy behind zoning and the harms it causes to local communities.
Links:
Charlie’s bio at Mercatus: https://www.mercatus.org/scholars/charles-gardner
Euclid v. Ambler, 1926: https://supreme.justia.com/cases/federal/us/272/365/
Spann v. City of Dallas, 1921: https://casetext.com/case/spann-v-city-of-dallas-1
Buck v. Bell, 1927: https://supreme.justia.com/cases/federal/us/274/200/
Kelo v. City of New London, 2005: https://supreme.justia.com/cases/federal/us/545/469/
Wilson v. Shaw, 1907: https://supreme.justia.com/cases/federal/us/204/24/
Other sources worth noting (in the order they came up):
Ilya Somin discusses the constitutional case against exclusionary zoning on Yeoman Episode #4: https://yeomanpodcast.com/0004-ilya-somin
Brett McKay and author Louis Menand discuss the philosophy of Justice Oliver Wendell Holmes, Jr. and his contemporaries on the Art of Manliness podcast: https://www.artofmanliness.com/character/knowledge-of-men/podcast-752-the-metaphysical-club/
Charlie referenced “Town and Country Planning” in the UK: https://en.wikipedia.org/wiki/Town_and_country_planning_in_the_United_Kingdom
“Fee tail”: https://en.wikipedia.org/wiki/Fee_tail
“Fee tail” featured in Downtown Abbey: https://scholarlycommons.law.wlu.edu/cgi/viewcontent.cgi?article=1432&context=wlulr
Arbitrary Lines, Nolan Gray: https://islandpress.org/books/arbitrary-lines#desc
Land Use without Zoning, by Bernard Siegan: https://rowman.com/ISBN/9781538148631/Land-Use-without-Zoning-New-Edition
“Right to Roam: In Scotland, Hikers Can Go Anywhere”, by Ken Ilgunas (I mispronounced Ken’s last name in the podcast; my apologies, Ken!): https://www.backpacker.com/stories/issues/scotland-right-to-roam
Ken’s book on Right to Roam: This Land is Your Land: https://www.kenilgunas.com/this-land-is-our-land
It’s worth noting that I probably overstated existing right-to-roam protections in Pennsylvania.
“Landowner will close access to two Colorado 14ers after lawmakers rejected legislation limiting liability”: https://coloradosun.com/2023/03/03/landowner-closing-14ers-mount-lincoln-democrat/
Other great sources on zoning reform and housing:
Emily Hamilton: https://x.com/ebwhamilton
Salim Furth: https://x.com/salimfurth
“Cutting Zoning Down to Size: Reevaluating the Legal Vulnerability of Urban Minimum Lot Sizes”, by Charlie (currently in draft, full version will be published in May): https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4619301
Timestamps
0:00 – intro
5:19 – zoning, Euclid vs ambler history and consequences
9:31 – Spann v city of Dallas
11:24 – The Supreme Court in the early 20th century, constitutional relativism
17:33 – Ilya Somin and Josh Braver’s “Constitutional Case Against Exclusionary Zoning”, broader view of property rights, can’t disentangle property from its use
22:10 – Arizona and Oregon redefining “taking”, applying to zoning
26:40 – connectiveness of humans, charting your own course, zoning
28:04 – Geoff and Charlie’s optimism, awareness amongst policymakers, compounding problems
32:30 – localism, the property owner as the most local authority
34:48 – Wilson v Shaw impact on human settlement patterns, federal investment in internal improvements, socializing the cost of infrastructure
43:23 – other countries funding infrastructure projects, town and country planning act
49:15 – why people pay so little attention to Wilson v Shaw, originalist interpretations
51:31 – Deed restrictions, Thomas Jefferson desire to see yeomen farmers, primogeniture history in England and Virginia
1:01:09 – interstate land sales act, covenants and restrictions, restrictive covenants, comparison to zoning, thinking on a longer time frame, near-term sunsets,
1:09:10 – right to roam, what it means to really own land
1:28:11 – where you can find Charlie, future articles
1:31:14 – forming the grounds for legal challenge, judicial perspectives, minimal lot sizes paper
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