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Comment by tptacek | Hacker News Reader

This should be done at the state level, not federally, but the logic for doing it at a relatively high level is that local governments have historically used parking minimums as a way to exclude new development; there are both collective action problems and conflicts of interest at the local level that don't exist at the state (or federal) level.

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This point is addressed in the article:

"An originalist understanding of the Constitution would consider parking mandates a taking of property in violation of the Fifth Amendment's Takings Clause protections, incorporated against state and local governments by the 14th Amendment. Congress would therefore be empowered to pass legislation to protect individuals' rights from these parking mandates."

I wonder what a textualist understanding of the constitution would produce and why the author chose to highlight one over the other.

It seems internally inconsistent to apply originalism to parking at all in the sense that there is no original thought on cars at the time of the drafting of the constitution simply because cars had not been invented yet.

Textualism as practiced is already calvinball and there is little point in trying to identify rational legal arguments that may persuade the court. It is much more explanatory to just look at the biases of the justices and assume they will reverse-engineer a textualist interpretation that supports their position.

See Bruen where a lack of laws regulating guns indicates public carry is a right rooted in historical tradition vs. Dobbs where a lack of laws regulating abortion before quickening does not. [1]

The conservative legal movement has turned constitutional interpretation into a shell game where choice of framing and selective use of historical examples can yield whatever result the justices already want.

All of that said, the argument is that parking minimums constitute a restriction on your property rights for public use without compensation and a similar argument could be made with things that did exist at the time such as carriages. Again see Bruen where Thomas "refutes" a weapon ban by arguing handguns are more analogous to daggers than to lances.

[1] https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4187143

If we accept that a parking mandate is a taking, the 14th amendment does empower Congress to pass legislation to enforce the rights. But the property owners could have filed suit on their own, right? Parking minimums have been around for a long time; if there was legal uncertainty, I'd expect some court cases about it? Many property owners have resources to fight such a case.

Don't know if there has ever been a Federal case involving parking minimums, but in general the Supreme Court has been extremely deferential to local government regarding zoning issues. In my view, the Court was incorrect on some of these rulings, and it would be interesting if Congress tried to rectify the situation.

My thoughts are if the Court thinks local zoning isn't a taking, it may also think Congress isn't empowered to intervene either. (Of course, the elephant in the room is it seems Congress would be unlikely to pass something like this unless it's rolled up into something else.

This particular bill would only apply to properties near a transit stop. The Feds already provide considerable financial support to local transit operators, and could simply cut off support to localities that do not support TOD policies.

The problem is that legally, zoning already is an "opt-in" protection of property rights.

There is no taking, because the restriction is already voluntary, and in consideration of mutual benefit of like-zoned neighboring property being similarly restricted.

It's obviously evolved into something else, especially as seen by the public, but that philosophy remains the legal foundation for it.

Even if zoning changes require approval, only the property owner can determine the original zone, and only he can request changes.

Buying zoned property, knowing the extant restrictions, is essentially opting-in "voluntarily". It's the same reasoning for why "grandfather" exemptions exist (no original consent).

What this federal argument is actually for, possibly without realizing it, is a method/mechanism for contractural/ municipal/ jurisdictional succession and/or nullification.

Those are the terms that need to be thought of in context of this discussion.

"Even if zoning changes require approval, only the property owner can determine the original zone, and only he can request changes."

I have no idea where you live, but I assure you that in many places the authority have jurisdiction can in fact just change the zoning of property you already own.

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