Ohio Pastor Criminally Charged for Letting People Sleep In Church. Again.

Happy Tuesday and welcome to another edition of Rent Free. This week's stories include:

• A Los Angeles court overturns the California law ending single-family-only zoning and allowing duplexes everywhere.
• Is the cure for screen-addicted kids more pedestrian infrastructure?
• Fresh off legalizing triplexes everywhere, Austin, Texas, considers shrinking minimum lot sizes.

But first, our lead story about yet another case of zoning laws versus the Good Samaritan.

Ohio Pastor Criminally Charged for Sheltering the Homeless…Again

An Ohio pastor is once again being brought up on criminal charges for sheltering people in his church.

On Friday, the city of Bryan, Ohio refiled charges against Chris Avell, the pastor of Dad's Place, for fire and zoning code violations related to his operation of a 24-hour "Rest and Refresh" ministry at the church's downtown building.

The city argues the church's 24-hour ministry is in fact just a residential homeless shelter, which is not allowed at the commercially zoned property. The fire code violations make it not only unauthorized but also unsafe. Each violation, if not corrected, is punishable by a $1,000 daily fine.

"We appreciate that Dad's Place has tried to help people in need," said Bryan Mayor Carrie Schlade in a statement. "But putting these people's lives at risk in the case of a fire or other dangers is not helping them."

"Here we are with the pastor facing new criminal charges for caring for people inside his church," First Liberty Institute attorney Jeremy Dys, who is representing Dad's Place, told Reason in an interview on Friday.

Reason covered Avell's case back in January when he was first charged with 18 criminal counts for similar zoning and fire code violations.

In response to those charges, Dad's Place filed a federal lawsuit against the city, arguing that its sheltering of people in the church is part of its religious mission and therefore protected by the First Amendment and federal law that safeguards religious land uses from zoning restrictions.

"It may not look like St. Paul's cathedral, but it is in every sense a church," said Dys.

Since Avell was first charged, a federal district court judge mediated an agreement between the city and the church. The city agreed to drop charges against Avell in February and also to hold off on any enforcement actions against the church. In exchange, Dad's Place agreed to cease "residential operations" and fix all fire code violations the city had identified at the property.

"We removed the washer and drier they asked us to, we removed the stove they asked us to. We stopped cooking with anything that would splatter grease," says Dys. "We've been doing whatever we can do to be reasonable with the city. And what we're met with is inspections at 5 am by the Fire Chief."

According to Dad's Place's court filings, after an early March inspection at 5:30 a.m. by Bryan's fire chief, the city issued a new demand for sprinklers to be installed at the church. That visit also found people sleeping in the church, which the city contends violates its agreement to cease "residential operations."

Dys says that Dad's Place has gone out of its way to cease residential operations at the church, including by moving a congregant and volunteer who experienced regular seizures out of the church and into an apartment rented by the church. The man died earlier this month after having a seizure while alone in his apartment.

The city contends in a press release that the Dad's Place unauthorized shelter is taxing police resources and that police have been called to the property 51 times over the past year.

Dys says that Dad's place and the city will have a status conference in the federal lawsuit today. Avell will have a hearing on the latest criminal charges sometime in May.

(You can read some of Reason's past coverage of the problems zoning creates for homeless shelters here.)

Los Angeles Judge Rules California Law Ending Single-Family Zoning Unconstitutional

California's landmark law ending single-family-only zoning has been struck down by a Los Angeles Superior Court judge as irrational, overreaching meddling in cities' local control.

S.B. 9 was one of several Yes in My Backyard (YIMBY) bills to pass in 2021 with the goal of liberalizing local zoning restrictions on "missing middle" housing like duplexes and garden apartments.

The law requires localities to "ministerially approve" duplexes and lot splits in single-family-zoned neighborhoods. That means local governments don't have the discretion to say no to these projects, nor can they subject them to public hearings and endless processes either.

After the law passed, several Southern California cities sued to block it because it interfered with their power as charter cities to set their own zoning laws.

The California Constitution gives charter cities the power to govern their own "municipal affairs" and restricts the state government from interfering in their home rule.

On the other hand, the California Constitution allows the state government to preempt local laws and set policy on matters of statewide concern. The Legislature also has pretty wide discretion to decide what's a matter of statewide concern.

The text of S.B. 9 explicitly declares that "ensuring access to affordable housing is a matter of statewide concern and not a municipal affair," so this would seem to be a pretty open-in-shut case in favor of the law's constitutionality.

Not so, says Los Angeles Superior Judge Curtis Kin.

In his ruling, he argues that S.B. 9's reference to "affordable housing" means specifically below-market-rate housing—where rents or sales prices are deed-restricted to be affordable to low-income people.

Because S.B. 9 doesn't require new duplexes legalized by the law to be below-market-rate, the law's zoning preemptions are an irrational means of creating more below-market-rate housing, reasoned Kin.

The law's potential to increase housing production generally can't save it either, he said.

"The Legislature cannot rely on a potential, eventual decrease in prices resulting from increased housing supply to demonstrate that S.B. 9 would increase the supply of affordable (i.e. below-market rate) housing," wrote Kin.

The ruling has provoked sharp criticism from some California housing law scholars.

"While there are many state laws that use the term 'affordable housing' to refer to below-market-rate housing, this is not one of them. There are also many state laws that are intended to promote relatively affordable market-rate homes, of which this is quite obviously one," says Christopher Elmendorf, a law professor at the University of California Davis Law School.

If the Legislature's obvious intent was to create only below-market-rate affordable housing with S.B. 9, it would have included below-market-rate mandates in the law, says Elmendorf.

Other California courts have also endorsed the notion that state preemptions designed to increase market-rate housing production can further the state's interest in affordable housing.

The 2nd District Court of Appeals—of which the Superior Court of Los Angeles is a part—recently rejected a lawsuit arguing that S.B. 10 (another zoning reform law passed alongside S.B. 9) wasn't addressing statewide affordable housing concerns because it didn't mandate new housing be below-market rate.

"There is a direct link between the affordability of housing and the supply of housing. Under basic economic principles, prices go up when demand exceeds supply," reads the appeals court decisions. "The increase in housing prices at all levels reasonably supports the Legislature's finding that there is a shortage of housing at all of those levels."

Elmendorf says the best interpretation of Kin's ruling is that it was intended to get the Legislature to more affirmatively state that its intent is to spur the production of market-rate housing.

"The judge wants to say to the legislature, 'Did you mean it?'" he says. "It's a way of testing the Legislature's stamina for promoting market-rate development in single-family-home neighborhoods."

Kin's ruling currently applies to only the five cities that sued the state over S.B. 9. As a superior court opinion, it can't be cited as precedent either. In that sense, its legal impact is modest.

The practical impact of the ruling will be modest as well. Despite the fanfare surrounding S.B. 9's passage, the law has produced few new duplexes. A primary reason is that local governments have proven adept at blocking duplexes by other means—often by charging duplex builders high fees or by expanding historical protections to more neighborhoods.

A silver lining in Kin's decision for housing supply advocates is that if it does force the Legislature to amend S.B. 9 to make it clear that the state wants more market-rate housing, that would create an opportunity to close additional loopholes in the law.

The Pro-Kid Case for Walkable Neighborhoods?

Is America's lack of walkable suburbs helping to create today's "anxious generation" of helicopter-parented, screen-addicted children? Yes, writes Timothy Carney in The Wall Street Journal:

Today's kids roam less than in earlier generations. Overscheduling and parents' safety fears are part of the reason, but it's also true that American suburbs built in the past 30 years are less walkable and bikeable than older neighborhoods.

Walkability is seen mainly as a concern for urbanites, who want to be able to stroll to a cocktail bar, grocery store or museum. But walkability in suburban neighborhoods is a far more important issue. It requires building sidewalks, bike trails, playgrounds, and crosswalks that are safely usable by kids. We know that is possible because much of the world already does it.

There's probably a lot to this idea. It's also true that federal spending on pedestrian and bike infrastructure has quintupled since the 1990s, right when teen walking began its precipitous fall.

It's possible/probable that much of the money paid for pedestrian infrastructure that fell short of real walkability. One could also argue federal pedestrian infrastructure spending is trying to make up for suburban communities that weren't built with walking in mind and are hard to reserve engineer into perambulatory paradises today.

Adopting zoning reforms that allow developers to create denser, mixed-use areas where there are people and things to walk to would conceivably add more walkable whimsy to kids' lives. Or it could just confirm that it is the screens, not the built environment, that's the problem.

Austin Moves Forward With Minimum Lot Size Reform, Transit-Oriented Development

Today, the Austin Planning Commission is scheduled to vote on a proposal to allow developers to construct taller, denser buildings near the city's planned light rail line if they include below-market-rate units in their projects.

This follows the Planning Commission's vote last week to recommend shrinking minimum lot sizes in residential areas to just 2,000 square feet, down from the existing 5,000 square feet.

The minimum lot size reforms are part of the city's HOME Phase Two reforms. Late last year, Austin passed HOME Phase One reforms which allowed developers to build up to three units on residential parcels citywide.

The Austin City Council is expected to vote on the HOME Phase Two reforms in mid-May.

Quick Links

• Bernie Sanders' old stomping ground of Burlington, Vermont, recently approved a suite of zoning reforms that allow four units of housing on residential parcels citywide, and taller, denser buildings in some zones.
• Marshfield, Massachusetts, voters rejected a plan to allow multifamily housing in more areas of the community, as required by the state's MBTA Communities Law. Milton, Massachusetts, similarly rejected an upzoning plan mandated by the law and is now being sued by the state.
• There's a pretty straightforward story one can tell about how zoning and burdensome local approval processes drive up the costs of housing by limiting new construction. A January 2024 paper from several notable housing economists argues that land use regulations also drive up construction costs by reducing the size of home-building firms. Smaller firms invest less in innovative technologies and can't take advantage of greater economies of scale, they argue.
• After seeing legislation limiting its authority to say no to new housing pass last year, the California Coastal Commission is tooling up. Politico reports that they are hiring more lobbyists and legislative staff to fight bills that would make it easier to build in coastal zones. Read some of Reason's past coverage of the Coastal Commission's anti-housing record here.
• The Wall Street Journal's Editorial Board argues federal housing regulators' new energy standards will drive up the costs of homebuilding.
• Another win for the "supply and demand" theory of housing. Home sellers are slashing prices in Florida and Texas because of excess inventory.