Wind River Interview – Erica S. Ewing on Minimum Square Footage Requirements

With the tiny home movement on the rise, the legal barriers to tiny living are making their way into headlines. In response to the current housing shortage in America, many cities are making room for housing alternatives, such as tiny homes and other innovative multi-family concepts. For a city to be “tiny home friendly,” the city’s housing provision must address minimum square footage laws and ordinances. Unfortunately, many cities have implemented minimum square footage requirements that make smaller housing alternatives impossible. Often accompanied with a misconception of the industry, officials are defending these ordinances at the expense of people who want to live right-sized rather than over-sized.

In 2021, the City of Calhoun, Georgia, blocked the development of a site-built tiny home community citing a minimum requirement of 1,100 square feet. The tiny homes proposed would be around 600 square feet, with a Southern-style cottage aesthetic, providing affordable housing through the nonprofit organization Tiny House Hand Up. When the City of Calhoun put up this roadblock, Cindy Tucker, the Executive Director of Tiny House Hand Up, reached out to the Institute for Justice, and in October 2021 they filed to sue.

We are grateful for the opportunity to interview one of the attorneys on this case, Erica Smith Ewing. We hope this article sheds light on the troublesome implications of such square footage ordinances. We also encourage our readers to learn more about what goes on at their local city council and to participate in advocacy at a local level.

“A city can have no justification for requiring people to build large expensive homes that they don’t want in the first place.”

Q:

So glad to be speaking with you, Erica. Please introduce yourself and tell us a little bit about the Institute for Justice.

A:

My name is Erica Smith Ewing. I’m a Senior Attorney at the Institute for Justice. We’re a national nonprofit organization and a public interest law firm. Our mission is to secure the constitutional rights that allow all Americans to pursue their dreams. One of the things that we do is protect property rights. In the last couple years, we’ve become very interested in the tiny home movement and the legal barriers that the tiny house movement faces, so we’ve been trying to remove some of those barriers.

Q:

When it comes to lawsuits involving tiny homes, are there precedents or is this a new legal frontier?

A:

This is a new legal frontier. There is very little case law, if any, about tiny homes. There is some case law involving people living in RV’s and parking in RV’s, but those cases are usually extremely fact specific and not that useful. I have not seen any real constitutional challenges about the right to live in an RV or a tiny home.

Q:

Let’s dive into the case of Calhoun versus Cindy Tucker from Tiny House Hands Up. It’s our understanding that she wants to construct site-built tiny homes in the city of Calhoun, Georgia, and that the city told her she was not allowed to do so, citing a minimum square footage requirement. Recently you had an update in the case. Can you share that with us?

A:

Certainly. The city of Calhoun was trying to dismiss the case on a technicality. They did not want us to be able to get to the merits of our constitutional challenge. They wanted it to just get kicked out. The trial court denied their motion to dismiss. Now the city is trying to appeal that decision.

Q:

If the lawsuit proceeds, what is the next step from there? Does it go to trial?

A:

Very few of our cases go to trial because they are usually constitutional claims and do not need a trial because the issues are more legal than factual. Hopefully the claims in this case will be able to go forward, and quickly. We would like to get our day in court and have these claims heard by a judge.

Q:

Can you talk about the history of minimum square footage requirements and how they came into existence?

A:

The Atlantic Journal wrote a couple good articles about the history of home sizes in America. House sizes were rather small after WWII. That’s why you see a lot of houses from the 40’s and 50’s around 850 sq ft, like a ranch or a bungalow. But they started getting bigger over time, and the Atlantic Journal documents that. But for minimum square footage requirements in recent years, we’ve seen a trend going in both directions. We’ve seen quite a lot of cities passing them for the first time or rapidly expanding them explicitly to raise property values and collect more tax revenue. The property value motive is a serious problem and arguably a very severe constitutional violation. And it becomes even more problematic when city council members are self interested and they are trying to raise their own property values by making their neighbors build bigger houses. On the other hand, we are also seeing a trend in recent years where cities are doing the right thing. They are going into their ordinances and lowering or eliminating minimum square footage requirements because they understand that housing has become very expensive and people want different things now. People want to downsize and live in smaller homes, whether that is a modestly sized house or a tiny house.

Q:

I believe there are also some incentives in place from the federal government for towns and cities to revamp their zoning to allow for different types of housing, more affordable housing, and alternatives that can help with the current housing crisis. Do you see that as a motivator for the municipalities that are lifting requirements?

A:

I know the Biden Administration has talked about incentives. I have not seen the effects of that policy and I do not know how effective they are. I have not seen it affecting any of the cities that I have been working with.

Q:

Minimum square footage requirements are not unusual in our country, but if I understand correctly, most states require that they be in direct correlation to health and safety.

A:

Yes. And I don’t think any minimum square foot requirement is connected to health and safety. As long as you follow basic safety requirements, it shouldn’t matter how big the house is. But still, it is not uncommon to see laws that say a house has to be 500 square feet for instance. What is very unusual are requirements at 1100 sq ft, 1800 sq ft, or 2200 sq ft. That is extreme, and I think that is a more recent trend.

Q:

If there is no health and safety defense for that size of a square footage requirement, it seems like the chief argument being made by the proponents of those restrictions is in the name of protecting property values. Is there ever a case where protecting property value is a valid legal reason to uphold a minimum square footage requirement?

A:

I don’t think the property value consideration is a valid reason and I think there is very little, if any, case law supporting that. If a court were to address that head on, we think the court would be extremely troubled by that justification, and we hope that they would find it to be invalid. The other justification that we have seen is wanting richer people to move to a neighborhood, which is also constitutionally troubling. Cities should not prioritize a desire for wealthy people to move in while discouraging lower income or middle income people from moving in. That is just not a legitimate government interest and I’m pretty confident that a court would agree.

Q:

What types of arguments would be valid and successful in a court setting to defend a 2000 sq ft minimum requirement?

A:

I do not think any justification could be valid, for a whole variety of reasons. One being that in any town or city, there are many homes that already exist and have long existed that are way below 2,000 sq ft and those homes are completely safe. There’s nothing about an 800 sq ft home that is going to be less safe than a 2000 sq ft home. In fact, you could argue that a bigger home would be less safe because in the case of a fire it might be more difficult to get out. Small homes and moderately sized homes are perfectly safe. And they are also just as attractive. There is nothing about a bigger home that makes it more attractive than a smaller home. A city can have no justification for requiring people to build large expensive homes that they don’t want in the first place.

Q:

How do those ordinances come to get proposed and passed if there’s so little justification for them?

A:

Unfortunately, cities pass bad laws all the time. They pass unconstitutional laws all the time too. It’s just a matter of whether the people in the city stand up to their city council or have the guts to bring a lawsuit—or perhaps too often, are even paying attention at all. Sometimes a city council does not think through the implications of what they’re putting into law or they frankly just don’t care. They think it will bring wealthier people, more tax revenue, property values will go up, so they pass it and they don’t care whom it’s affecting.

Q:

Or maybe they just hear one side of things and get persuaded. They don’t realize that there’s this whole other thought process or perspective on it.

A:

Yeah. And some city councils are very good and they’re not doing this. But I’ve been to a lot of city council meetings and it can be disturbing what is said and what they’re relying on.

Q:

It sounds like the basis for the lawsuits that you guys are bringing is a constitutional basis. Is that state or federal constitution? And can you also elaborate on what article this falls under?

A:

Sure, definitely. So we often bring both state and federal constitutional claims, and they’re usually very similar under both constitutions, except sometimes the state has greater protections for property rights, and that’s the case in Georgia, for instance. Under both federal and state constitutions, we’re always bringing what’s called a “substantive due process” claim, which is just a general doctrine saying that if a government’s going to pass a law, including a zoning ordinance, it has to be reasonable and it can’t be arbitrary. It has to be connected to a legitimate government interest. And courts usually say that zoning ordinances need to be justified by protecting public safety and the public welfare. It can’t just be this arbitrary law in the interest of collecting more taxes. We would hope that courts would acknowledge that that’s not enough.

Q:

Do you know of any other cases against minimum square footage requirements, before this one in Calhoun, that have been successful?

A:

There are a couple of older ones—one from Pennsylvania and another in Connecticut. In both cases the minimum square footage requirements were struck down.

Q:

Forbes recently published an article highlighting a new letter that has been sent by IJ to Big Water, Utah, where the minimum square footage requirement is 2,000 square feet. They also talk about Highland Lake, Alabama, where a couple was unable to rebuild a home lost in a fire because the new requirement is 1,800 square feet minimum. Are either of those at a point where you can share the outlook?

A:

Big Water, Utah, has committed to changing their law to either reduce or eliminate the minimum square footage requirement. Changing laws sometimes takes a little bit of time. We have not seen any progress in Alabama.

Q:

There is a question that we think about a lot and I would really like to get your take on it. A homeowner wants to have a certain amount of say in how their community grows, and it is important for neighbors to be able to come forward and collectively say “Yes, we want this,” or “No, we don’t,” but where do you think the line falls between someone’s right to do with their own property as they wish and the community’s right to have a say in how their community grows?

A:

That’s a great question and it’s something I think about a lot as well. When you’re dealing with a situation where somebody wants to put a house on their own land, and that house is perfectly normal and attractive looking, I don’t think there is any argument that they’re affecting their neighbors. I think it’s a more difficult question when people are putting something like a shipping container that they made into a house onto their land, for example, where it’s not hidden away behind trees and they’re right next to a neighbor. If someone is putting a tiny house or smaller house on their property, and the only real difference is size, I do not think there’s any argument that they are affecting their neighbors.

Q:

If I were talking to a city official who is in a position to serve the people, I would argue that the responsibility they have to protect someone’s growing investment (property inflation) pales in comparison to their responsibility to serve those who don’t have housing in the first place or are looking for better, more affordable options. Those people need their city councils and officials to champion them and their basic human need for housing. Do you feel like there’s a perception in the landscape of city councils that the right to housing, even if it is smaller, should take precedence over the way a neighborhood looks or property values?

A:

I think these are really good questions. I do not think people have a right to have their property values accelerate through the roof. For instance, if you have this house that is 3500 sq ft and all of a sudden people put three or four homes next to that house that are only 1/5 or 1/6 of the size, the property value of that bigger house probably will be affected. But it is not reasonable to say, “Well, you can only build really big homes so that my house keeps accelerating in value.” You do not have a constitutional right or any right to influence what other people are doing on their property, unless what they are doing is actually harming you. I think it gets harder when you’re talking about very dense properties where all the houses are right next to each other and you’re building a house that looks vastly different than anything that’s ever been built in that neighborhood before. I think that’s a harder argument—at least a harder constitutional argument. But if it’s just a smaller house and it still looks like a house, then of course you should be able to do that.

Q:

One of the things mentioned in the Calhoun case is that a disgruntled resident at a town hall meeting said they didn’t want the development to happen because they didn’t want “riff raff” in their neighborhood. I think that’s something that the tiny home community sometimes struggles with—the stigma that people living in tiny homes are low socioeconomic people that can’t afford anything else, but that’s really not the case in most situations. In most cases, people just don’t want to be living exorbitantly anymore and they want something that suits a simpler lifestyle that’s easier to maintain. One study actually found that tiny home dwellers earn above average wages and have more savings. I know this isn’t the official reason Calhoun is blocking this development, but if the case goes to court, will the Institute for Justice address those comments?

A:

Absolutely. We think the reason they are blocking this development is largely because they want to keep people that they find undesirable out of this neighborhood, and that is extremely problematic under the constitution. The government should not be and cannot be deliberately crafting laws to keep people from their neighborhood that they think are undesirable. There’s a long history in our country of laws being passed like that and they have been struck down. And it doesn’t matter if it’s based on what people look like or how much money they make. It’s not the government’s role to do that. The government is supposed to be protecting people from laws like that, not creating them. I think that our country is going to have to continue having these debates and discussions as we decide whether people should be able to have duplexes or quadplexes in single family neighborhoods. How much of this is about preserving the character of a community and how much is it about keeping certain people out of a neighborhood? As long as people are maintaining their property and they don’t have garbage on their front lawn and they’re not breaking the law in other ways, they should be able to live in any neighborhood no matter how much money they make.

Q:

What can people do when they recognize a blatant conflict of interest in their city council members?

A:

I think they should speak up. I have found that city council members pay attention to who’s paying attention. So if there’s a city council meeting and nobody shows up, or only three people show up and they’re all supporting the bad law, that law is a lot more likely to get passed. But when you have ten to fifteen people show up against it, they will pay attention to that and it makes it so much less likely that the law will go through. A lot of times it just takes one person to speak up. Being active in your local government is how to prevent these laws from happening.

Q:

I think that’s a really good call to action to end on. Get involved in your local city council. Get familiar with who is on the city council, what their agenda is, what is up for voting, etc.

A:

Yeah, or even just calling a city council member or sending them an email saying, “Hey, I’m paying attention. Don’t do this.” Not everybody can take off work and sit in a city council meeting for 6 hours. But you and all your neighbors can write in. There is also petition.org, that works too. The other thing you can do is reach out to your local newspaper. If you think the city is doing something that they shouldn’t be, or conversely if they’re doing something that you want them to do, you can reach out to the local reporter and ask them to cover it, and a lot of times they will. Local reporters want to respond to their community as well.

Q:

How can people support the Institute for Justice?

A:

We are a nonprofit organization run entirely by donations, so if you want to support us, please donate. Or you can just send us a nice note saying that you like what we do. We appreciate that as well. If you are affected by one of these laws, if you want to live in a small house or a tiny house and the city’s not letting you, please contact us and we may be able to help.