Delays, Discretion, and Denials: State Legislative Reforms to Local Land Use Processes

The United States needs more housing. Estimates of the national housing deficit range from 1.5 to 7.3 million homes.1 In many jurisdictions, the gap is considerable and has sometimes been growing for decades, while in others, there’s a surplus. The consequences of housing shortages are well-documented: for millions of renters, rental expenses consume more than half of their incomes, workforce housing scarcity distorts regional labor markets, and homeownership has become financially out of reach for an increasing number of households.

The policy conversation about supply has historically centered on substantive land use restrictions—density caps, minimum lot sizes, parking minimums, and the like. A parallel body of evidence and commentary has increasingly emerged, however, suggesting that some of the procedures governing how development is reviewed and approved can impose independent and substantial costs and delays on housing production. In particular, many jurisdictions subject a substantial number of proposed projects to discretionary review, with the path from application to permit frequently running through public hearings, environmental review, changing regulatory criteria, and the specter of legal challenge.

These procedural costs are not neutral. They can increase financing, legal, and other costs through delay, introduce uncertainty that deters investment, and create opportunities for opposition to use delay tactics against housing that could not be denied on the merits. Because states have historically delegated land development regulation to local governments—which are structured to respond to incumbent residents rather than those priced out of the jurisdiction—these procedures have often been shaped in ways that disadvantage new housing. In response, states are increasingly subjecting local development procedures to reform.