In seeking to keep American housing unduly expensive, housing laws make our homes less safe,

leave countless thousands of us homeless (an estimated 600,000) and have nearly 40-million of

us living in more house than we can afford (Joint Center for Housing Studies, 2018). Today’s

unprecedented rates of homelessness, the crashes of 1926 and 2008 and the latter’s devastating

effects on the U.S. and world economies are all direct results of American housing laws run amok.

Disastrous by Design

In 1915, a private corporation was known as the Building Officials and Code Administrators

International, Inc. (BOCA) was tasked with creating a set of housing laws that would serve both

industry and government alike. By 1920, the most effective of BOCA’s prescriptions for a more

lucrative housing product had been enacted as law. Industry profits, regional tax bases,

homeless rates, and the price of real estate soared accordingly. The crash of 1926 ensued; and,

lo, the American boom-bust-cycle was born.

BOCA soon lost its share of control over code development to other corporations who would, in

turn, lose control to today’s International Code Council (ICC). The acronym has changed, but the

institution and its purpose remain largely the same. The ICC still maintains many of BOCA’s most

profitable sections.

By now, the ICC is comprised largely of the insurance, construction, manufacturing, and mortgage

industries. It should come as no surprise, then, that the agency’s prescriptions for an unduly

expensive housing product stipulate more than a little of its own corporate bling.

Safety Second

The codes increase revenues mostly by increasing the volume, mass, and complexity of our

country’s housing stock. Bigger houses with thicker skins fetch a relatively pretty penny, so

inordinately large rooms enclosed by super-sized walls, floors, and roofs are mandatory. Never

mind that, all else being equal, relatively expansive rooms with beefier rafters overhead are more

likely to fail under the lateral loads posed by earthquakes and high winds. That the products

prescribed to achieve these already unsafe conditions can increase indoor VOC concentrations

to 10-times those of outdoor air also seems to be of little consequence. These requirements

were, after all, not designed to protect us or the environment so much as they were designed to

serve the bottom line at our expense. And, to this end, they’ve been doing a pretty good job.

Ostensible legal protections against this sort of abuse do exist. The United States Constitution

seeks to limit the scope of housing law to public health and safety. Unsafe bling for profit’s sake

is not covered. State and local governments frequently bypass these legal protections through far

fetched interpretations of what constitutes a safe, healthy home. They ignore safety, toxicity,

efficiency, and structural testing as means to eradicating more efficient, perceivably less profitable

forms of housing and the relatively poor people who’d presumably live in there.

‍

Exclusionary Zoning

Codes were just getting started when zoning was introduced to ensure more of the same. In

1924, our country’s first model zoning ordinances were published by the United States

Commerce Department. While code determines the form of our houses, zoning dictates whether

or not our properties are even suitable for construction. Zoning has worked in tandem with code

to create a country of inordinate debt and homelessness. The duo is responsible for the overbuilt

environment known as sprawl and for an expensive campaign to keep perceived undesirables

out of sight and mind.

In the case of Euclid v. Ambler of 1926, for example, a lower court found one zoning ordinance to

be inoperable as it was aimed at preventing “colored or certain foreign races [from] invad[ing] a

residential section,” of its district. In the subsequent case of Nectow v. City of Cambridge (1928)

the U.S. Supreme court found that a similar ordinance would do nothing to promote public health,

safety, convenience or general welfare and stood as a "serious and highly injurious" invasion of

property rights.

‍

One 1930s ad for housing sums up the exclusionary purpose of American housing law in a nutshell (Image Courtesy of UCLA, Library Special Collections, Charles E. Young Research Library). It’s worth noting that codes and zoning have never even come close to fulfilling their exclusionary function. When virtually every state, city, and county in the Nation is seeking to drive out poverty by precluding housing even average Americans can afford, our incentive to leave one inhospitable place for another pretty much cancels out.

‍

Even in its early days, while still relatively narrow in scope, zoning was already facing some

serious challenges. To be Constitutional, zoning ordinances (like codes) would have to address

matters of public health and safety. Insomuch as they do not, they deprive individuals of certain

freedoms including some property rights guaranteed by the 5th Amendment and the Universal

Human Right to Housing (Article 25 of The Universal Declaration of Human Rights and Article

11(1) of the International Covenant on Economic, Social and Cultural Rights). Even requiring a

property owner to get a permit before doing work on their home or land may constitute a felony

under the U.S. color of law provisions. At least that would be the case when any public official

presents a right as if it were a privilege to be regulated by their state or local government agency.

Housing Crisis? No Problem.

A non-problem is like a real problem with no immediate cause for concern. A well-constructed

non-problem presents enough artificial cause for fear, drama, and/or problem-solving to distract

us from pretty much anything, including real problems. Today’s so-called “housing crisis” is just

such a diversion.

To be clear, the housing situation in America is more dire than ever, but its backstory is very

different from the one we, as a culture, tend to tell ourselves. Our narrative is a relatively

hopeless one in which 39 million of us live in servitude to a mortgage or to rent or we die on the

streets because we can’t afford either of the first two options. Like any lie worth telling, this clever

non-problem contains more than a little truth. 39 million Americans are overburdened or dying

because they can’t afford a place to live. The dishonest part of this red herring is mostly achieved

through its lie of omission. Insert the conspicuously absent word “unnecessarily” in a couple of

places and our story’s outcome isn’t so easily dismissed as such a lost cause.

Millions of Americans are suffering unnecessarily because we are going out of our way to make

houses unnecessarily expensive for everyone. When you consider that this undue expense is

also making our homes unsafe and inefficient, the real problem hidden behind our common

narrative begins to show.

In one 2010 interview, a representative of the ICC conceded that there was, indeed, never any

safety, toxicity, or efficiency testing done to warrant some of the Council’s most longstanding and

consumptive prescriptions. By 2014, a handful of correlating laws had consequently been put on

the chopping block. In 2015, the inoperable statues were duly rescinded. One particularly

burdensome law, requiring no less than one 120-square-foot room per home, was the first to go.

The ICC would subsequently confirm that this 100-year-old section never had anything to do with

safety or anything else pertinent to Constitutional law. Scores of similarly over-reaching statutes

remain on the books. Others continue to be enacted; but, with more public pushback than ever,

their fate seems less certain and their standing less enforceable than would have been the case

a couple of decades ago.

Pushback

By the late 20th Century, the consequences of overregulation had become our nation’s new

normal. McMansions, urban sprawl, deforestation, perpetual debt, and homelessness had

become ubiquitous, and the average American could no longer afford the average American

home. In 1999, news stories began to surface about how average citizens were reclaiming their

right to safe, affordable housing through acts of civil disobedience. Soon, countless thousands

(roughly 10,000) would be openly ignoring codes and zoning in favor of building unpermitted

dwellings in ways that made better sense to them.

When compared to code-compliant U.S. housing stock, it has been estimated that the handbuilt

homes of these renegades are, on average, 3-times more resistant to the lateral loads posed by

earthquakes and high winds, 6-times more efficient in terms of embodied GOP, and cost about

1/4 as much to build. While greater safety, efficiency, and affordability haven’t always been the primary goal of the amateur builders making these homes, it seems that’s just what you get when

prohibitions on common sense are ignored.

The Tiny Trojan Horse with Curb Appeal: Since 1999, tiny homes on wheels have been serving as one particularly visible form of civil disobedience. The tiny house movement and other advocates have, thus far, managed to change no less than a dozen inoperable sections of code and upend exclusionary zoning restrictions in several U.S. cities.

An Ill-Fated Strategy

We’re told the crux of our housing crisis is the necessarily prohibitive cost of a home. We’ve been

led to believe the situation’s virtually beyond repair. Affordable housing is, after all, already being

built in droves to insufficient avail. The term “affordable” is used somewhat loosely here, as it

refers to a purported “solution” that, on average, costs $209,000 per unit. That amount is more

than even the average American can muster. Current codes prohibit the construction of anything

more cost-effective while prescribing the kind of “affordable” that, at its high-end, can exceed

$739,000 per unit (Tilden Terrace in Culver City, CA).

The key to creating more efficient, cost-effective, safer housing in the U.S. doesn’t lie in

producing a separate, sub-substandard, “affordable” category of housing but, rather, in throwing

out the over-regulation that has made all American homes so needlessly unaffordable.

Moving Forward

1. Build sensible housing in accordance with Constitutional laws.

2. Place an immediate moratorium on all sections of code and zoning that exceed any legal

purpose, including those that mandate inordinate fees and permitting costs for safer, low-cost,

efficient development. Offending sections of code and zoning might be most broadly identified as

those having an inverse relationship to the results of credible health and safety testing or as

having no relationship to any testing whatsoever. Inclusion of justifying terms like, “usability”,

“livability” and “aesthetics” in certain sections serve as another red flag. The concerns

referenced by such terms frequently exceed the scope of police powers extended to regulators.

3. Abate all inoperable sections on or before January 1, 2021.

‍

‍

-Jay Shafer, Tiny House Pioneer