Can we blame Scalia for Vancouver’s unaffordable real estate?

On the face of it, probably not.  Indeed, maybe the blame runs in the other direction – perhaps, the former US Supreme Court Justice’s death was hastened by glancing at the price of a detached house on the West side of the City.  But bear with me…

Scalia’s death opens up a spot on the Supreme Court, and the ensuing nomination contest should prove… interesting.  Republicans are, predictably, arguing that President Obama shouldn’t make any nominations, leaving the Supreme Court pick to his successor.  One argument is that there simply isn’t enough time.  The New York Times put this argument to rest today with a handy graphic revealing that Obama has 342 days left in office, and its never taken the Senate more than 125 to confirm (or reject) a nominee. Plenty of time!

But which former nominee took the longest to get confirmed?  A quick scan reveals it was none other than Louis Brandeis.  Probably because he was an incorruptible progressive, and also Jewish.  I’ve long been fascinated with Brandeis.  Initially this was just because of his association with the eponymous University (yes, it is named after him), and my difficulty in deciding how to pronounce his name (rhymes with bran-face?).  But then I discovered he was part of the Supreme Court during a decision of particular interest to my research.  He was part of the Euclid v. Amber Realty court majority deciding in favor of the legality of use-based zoning by municipalities in the USA in 1926.  This was actually quite a close decision, despite only three judges formally dissenting, and had Brandeis not been there, it could easily have gone the other way.*  But he’s also notable for co-authoring a relevant defense of the right to privacy that predated his time on the court.

I’d suggest that the basic logic of Brandeis’ right to privacy argument (from 1890) also motivated the legalization of zoning, especially as it pertained to the establishment of single-family detached residential areas.  To quote the former:

Recent inventions and business methods call attention to the next step which must be taken for the protection of the person, and for securing to the individual what Judge Cooley calls the right “to be let alone” [10] Instantaneous photographs and newspaper enterprise have invaded the sacred precincts of private and domestic life; and numerous mechanical devices threaten to make good the prediction that “what is whispered in the closet shall be proclaimed from the house-tops.”

Ha!  1890!  Good thing we nipped the threat to privacy from those newfangled mechanical devices in the bud.  Anyway, the City itself was often seen as a threat to privacy, as well as to peace and serenity.  Turning to the Euclid decision, zoning for the segregation of uses was understood to:

increase the safety and security of home life; greatly tend to prevent street accidents, especially to children, by reducing the traffic and resulting confusion in residential sections; decrease noise and other conditions which produce or intensify nervous disorders; preserve a more favorable environment in which to rear children, etc. With particular reference to apartment houses, it is pointed out that the development of detached house sections is greatly retarded by the coming of apartment houses, which has sometimes resulted in destroying the entire section for private house purposes; that, in such sections, very often the apartment house is a mere parasite, constructed in order to take advantage of the open spaces and attractive surroundings created by the residential character of the district.

The big thing legitimized by the Euclid decision was the segregation of single-family detached houses from apartment buildings.  The legal legitimacy granted to single-family residential zoning in the US spread to Canada via consultants like Harland Bartholomew, primary author of Vancouver’s planning from the late 1920s.  Our zoning legislation has increased in complexity since then, but there’s been strikingly little erosion in the single-family residential zoning (RS) setting aside the City’s land to support only single family houses in the 1920s.**

As I like to think of it, we put in place a Great House Reserve around the urban core(s) of Vancouver, and it’s pretty much still in place today.  Once the City’s middle class felt they could afford the price.  Now, for a great many reasons (here are only a few), that’s no longer the case.  But due to the maintenance of existing zoning restrictions, we’re still reserving the vast majority of the City’s residential land for single-family houses.  Effectively, we’re now only allowing multi-millionaires to play there.  No wonder they’re dominating the news.

Still, protecting the exclusive rights of millionaires is the sort of thing Scalia might’ve liked.  Maybe we can blame him for the high cost of our real estate after all?


*see, for instance, Baar, 1992; Power, 1989; and Valverde, 2011 (I can provide full cites on request!)

**of course now you can usually add a secondary suite and a laneway house to single-family residential lots in Vancouver if you really want to, so that’s something!

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