Climate change is reshaping how and where we grow old, as well as the likelihood of growing old. The 100-year life will play out against this backdrop, with almost no aspect of aging left untouched. Retirement savings will be strained by the costs of disaster recovery. Aging in place might become impossible in many parts of the country as homes and communities are lost to floods or wildfires. Access to health care may be disrupted due to evacuations and lengthy dislocations. All while existing inequities will be amplified and the hardships that define old age for many – from poverty to illness – deepened.

Law and policy can help protect older Americans from climate harms. This chapter suggests how. It begins by describing the climate vulnerabilities older Americans face. It then considers relevant adaptation policies, focusing on programs that help people relocate from at-risk areas, as well as suggesting additional reforms to support those who are dislocated. The chapter closes by discussing how older people could help disrupt climate policy inertia through litigation – seeking to compel government action through claims that center the elderly’s distinct dependency on a stable climate.

18.1 Climate and an Aging Nation

The US faces widespread climate impacts. Rolling heatwaves blanket vast swathes of the country; increasingly severe wildfires race across the West; more powerful hurricanes lace the eastern seaboard. The toll is severe. In 2023 alone, twenty-eight disasters claimed 492 lives and resulted in losses exceeding $1 billion each.Footnote ¹ Where “billion-dollar disasters” happened once every four months in the 1980s, they now occur once every three weeks on average.Footnote ² Many losses are unquantified or unquantifiable – whether the disruption of indigenous cultural practices by rising seas, or the mounting burdens of respiratory illness worsened by wildfire smoke or mold from flooded homes.

Climate change intersects with an aging America. More than half of older Americans live in just nine states, areas that face a high risk of hurricanes, flooding, wildfires, or extreme heat: California, Florida, Texas, New York, Pennsylvania, Illinois, Ohio, Michigan, and North Carolina.Footnote ³ If older Americans’ current preferences regarding where to live as they age extend into the future, more will move to the southeast and southwest, along the Atlantic and Gulf coasts, and into Northeastern and Midwestern cities – all subject to extreme weather risks.

18.2 Toward an Elder Climate Law

Climate change is a threat multiplier, magnifying flaws in how we support older Americans. Adaptation policy seeks to help individuals and communities adjust to current and projected climate impacts. This section considers how select aspects of adaptation policy – managed retreat and the disaster response system – should evolve to better serve older Americans. These are but two examples of what must become an entire field of elder climate law and policy.

The section closes by discussing how older people might help catalyze this field’s development by influencing the political economy of climate law and policy through litigation.

18.3 Conclusion

Honoring the 100-year life requires mitigating further climate change and adapting to its unavoidable effects – protecting longevity for present and future generations while securing it for our most vulnerable now. If elder law and climate law do not prioritize one another in this manner, Byzantium will become a climate forever lost rather than a home still attainable.

Local government law focuses its gaze on certain fault lines: city and state, urban and suburban, insider and outsider, rich and poor, Black and white. A new fault line deserves increased attention. Local government law has a senior citizen problem. To be crystal-clear, the problem isn’t with senior citizens themselves. Older Americans are terrific participants in local government; indeed, they are the foundation of this entire level of government. They vote, they serve, and they volunteer. But therein lies the problem.

Our system of local government, in its very design, privileges older residents’ interests even as local government has been assigned responsibility for a set of issues where age is particularly salient. In an aging country, this interplay of structure and function threatens to distort and destabilize the local democratic process.

Local government is an arena where many of the central political issues – most pointedly public education – feature inherent generational conflict. Education, by far the top-ticket item for local budgets, pits those with children under eighteen against those without. Senior citizens, of course, rarely have school-age children.Footnote ¹ Other quintessentially local issues, like infrastructure development and land use regulation, likewise center conflict between today’s residents and future generations who might need a new road or more housing. Inasmuch as self-interest enters people’s calculations, older people calculate that self-interest on a different time horizon.

Now, local government law offers many tools for managing political conflict; such is the nature of democracy. If anything, local government offers additional tools for satisfying heterogeneous preferences compared to higher levels of government. There are more opportunities for dissenters to protect their interests with both voice (through richer forms of public participation) and exit (through voting with one’s feet). But conflicts across age groups already strain the efficacy of those tools, as they are available unequally. For reasons that appear structural, not contingent, seniors vote disproportionately more than nonseniors in local elections and participate more in local community processes.

Putting these features together, seniors are not just another set of citizens in the democratic mix. They are a group whose political power at the local level can far exceed their numbers. This distribution of power offers advantages, to be sure. Long-time residents may bring deeper local knowledge to bear, for example, and such local knowledge is often what justifies otherwise less-expert local governance in the first place. But it brings costs too, and those costs may rise quickly if the demographic predictions of The 100-Year Life play out. What is currently a difficult undercurrent of local politics may rush to the fore. This points to the importance of law in mediating, structuring, and restructuring those coming conflicts. This chapter asks whether our current system of local government can adequately and equitably serve an aging nation. In doing so, it focuses on uniquely local functions of service provision rather than on functions shared with states and the federal government, whether those be the exercise of regulatory powers or the administration of Medicaid and public hospital systems.Footnote ²

This is of course a speculative endeavor. Divining just how politics evolve in a future where half of all babies live to be 100 seems a thankless task.Footnote ³ Will advances in fertility treatment simultaneously shift the age at which parenthood turns to empty nesting? Will eighty be the new sixty, such that longer lives are spent in active retirement (and most importantly for local politics, as homeowners), or will large populations move to assisted living? Will growing ranks of seniors identify as a coherent group, even as being a senior becomes a more common trait? I would not hazard a guess, especially since this volume makes clear that the answers depend on the legal and policy choices we make along the way. To be conservative, I assume only that a growing share of people will exhibit political behavior approximating that of today’s older citizens: those whose children, if they had them, have left the home.

This chapter proceeds in five parts. First, it explains how some of local government’s central functions – education and infrastructure, especially – divide voters by age. Second, it describes how the institutions of local democracy – its low-turnout elections and rich participatory processes – disproportionately represent older residents’ interests. Third, it reviews the empirical literature on how these features of local government play out on the ground, which confirms the risks of an aging population for investments in the future. Fourth, it highlights the ill effects of local governments’ existing mechanisms for managing age-based conflicts, which rely on (and generate) exclusion and an overly market-based approach to providing public goods. Finally, it schematizes the alternative options for resolving these tensions: aligning voters’ preferences, equalizing voters’ political power, or reassigning responsibilities away from local governments.

19.1 Age and the Functions of Local Government

Local governments are the country’s public service providers. They do much else besides, of course. Local governments are often at the forefront of public policy, innovating on everything from civil rights and employment law to climate change. But what makes local governments truly unique is that they employ the actual people who carry out the work of government. Nearly two-thirds of public employees, not counting the armed forces, work for local governments.Footnote ⁴

And more than anything else, service provision means public education. There are over 8 million local employees working in elementary and secondary education, almost three-fifths of total local public employment.Footnote ⁵ K–12 education is almost as dominant in local finances as it is in local employment. Elementary and secondary education made up 40 percent of local spending in 2020, far more than anything else.Footnote ⁶ It is an exaggeration, but only a small one, to say that the politics of local taxation is the politics of public education.

After education, the next largest categories of local spending relate to health and public welfare, followed by infrastructure. Local health spending overwhelmingly reflects local administration of the state/federal Medicaid program, over which local governments play a distinctly secondary policymaking role. Infrastructure spending, in contrast, is a quintessentially local function, the interstate highway system notwithstanding. State and local governments pay for about 60 percent of capital spending on infrastructure and 90 percent of operational costs; they split these costs roughly evenly, with states taking more responsibility for highways and other regional infrastructure.Footnote ⁷ These investments go toward roads, in particular, but also water, sewer, and solid waste infrastructure and, importantly, debt service on past capital expenditures.Footnote ⁸ The centrality of education and infrastructure to local budgets makes age a fault line in local politics. They divide parents from nonparents and pit current spending against long-term investments.

Moreover, unlike at the federal level, age may not be just one fault line among many. Most local governments are substantially more homogeneous than the nation at large: inside a given city’s or suburb’s limits, there aren’t the urban/rural or north/south divides that typify national politics, and persistent segregation makes many localities racially and economically uniform as well. Local governments also deal with a smaller set of issues: There are fewer independent political axes like foreign policy or international trade to cross-pressure voters. Nor can local governments use deficit spending to finesse intergenerational fiscal conflict. Thus, when demographic divides emerge at the local level, they may loom large.

19.2 Age and the Governance of Local Government

Even as the three-tier system of American federalism assigns certain age-related services to local governments,Footnote ⁹ the structures of local democracy dramatically overrepresent older residents. Older residents’ voices are elevated through both electoral and participatory channels.

First, while older Americans are generally better voters than younger people, the nature of local elections widens that gap considerably. Local elections often take place off the presidential (or even midterm) cycle. At the same time, they frequently lack political parties or popular media coverage to inform and mobilize voters. This leaves elections shockingly low-turnout, limited to the most dedicated voters and, more importantly, to those connected to local politics through their social networks. This favors long-time residents and those with more time – and therefore seniors.

The age divide in local voting behavior is overwhelming. Political scientist Sarah Anzia calculated that California residents aged sixty-five to ninety registered to vote at rates 17.7 percentage points higher than those aged twenty to forty-five.Footnote ¹⁰ Of those already unequally registered voters, the older group then voted in city elections at a rate 26.6 percentage points higher than their younger neighbors.Footnote ¹¹ That gap in voting rates rises to as high as 46.4 percentage points in the most unusually timed elections.Footnote ¹² Notably, off-cycle elections empower seniors even more than they do other groups – like unionized teachers – who are thought to benefit from low-turnout elections.Footnote ¹³

Just as importantly, local politics distinctively centers face-to-face self-government, whether through public hearings or conversations at the grocery store. The ballot box is relatively less central to local democracy – and, in smaller municipalities, sometimes a distinctly peripheral mechanism for years at a time. Again, this gives older Americans a distinct advantage. Deep community roots again matter here, but so does a flexible schedule.

In their path-breaking study of local public participation, political scientists Katherine Einstein, David Glick, and Maxwell Palmer found that 75 percent of those who spoke at public land use meetings in Massachusetts were older than fifty. This is 22 percentage points higher than the share of voters over fifty (and higher still than the share of the general population over fifty).Footnote ¹⁴ A thirty-year-old, they found, is 20 percent as likely to comment as a seventy-year-old.Footnote ¹⁵ The volunteer advisory boards so common at the local level display similar bias. Among community board members in Queens, New York, 47 percent are aged sixty or older (compared to 24.7 percent of the population), and 70 percent are fifty or older (compared to 38.4 percent of the population).Footnote ¹⁶

Perhaps most strikingly, the median age of a school board member in 2017 was fifty-nine,Footnote ¹⁷ well past the age when people are likely to have a child in the home.Footnote ¹⁸ Indeed, this is older than the median age in the US House of Representatives.Footnote ¹⁹ Yet one imagines school boards to be institutions where parents take a particular interest. If so, the rest of local government likely skews older still.Footnote ²⁰

Thus, local government features a potentially uncomfortable combination of responsibilities and governance institutions. These first make age especially salient and then make older people especially well represented. The next question, then, is how local government manages this political pressure.

19.3 How Local Politics Responds to an Older Population: Empirical Evidence

Spurred by the property tax revolts of the 1970s, social scientists have worked for decades to discern the actual effects of population age on local political economy.Footnote ²¹ The conventional wisdom is that older residents, all other things equal, demand lower taxes, especially where those taxes fund education. Most empirical research on local education politics supports this conventional wisdom, at least to some extent, though this literature has been notably inconsistent.Footnote ²² Political scientist Arnaud Maurel has extended this literature from education spending by school districts to the other programs funded by municipalities. Maurel finds limited effects on total spending, but a dramatic shift away from capital investments and long-term debt – in other words, a shift from spending on the future to spending on the present.Footnote ²³

Even taking older voters’ opposition to education spending as given, the net effect of an older population on that spending remains ambiguous. While seniors are less supportive of spending on schools or infrastructure, they also consume less in services. Thus, the presence of seniors in a jurisdiction can increase the per-capita resources available for school spending; many jurisdictions chase seniors as a lucrative boon to the tax base. Seniors’ immediate effect on the tax base increases per-capita school spending, even as their political behavior can decrease it.Footnote ²⁴ Which effect dominates depends on the number of seniors and their political organization.

What is particularly interesting for local government law, though, is not how much age affects political behavior but what legal mechanisms regulate that relationship. The empirical literature identifies two mechanisms as particularly important in mitigating the effects of older residents’ opposition to education spending: Tiebout sorting across jurisdictions and the capitalization of services into home prices.

First, Tiebout mobility ostensibly lets those with different preferences sort into separate communities, allowing all to better meet their needs. The famous Tiebout model imagines mobile households shopping for bundles of taxes and services by “voting with their feet” and moving to localities whose bundles match their preferences. In theory, those with children can move to higher-tax locations with better schools while the elderly select into retirement havens where education is not prioritized. In reality, of course, there are any number of limitations to Tiebout sorting: households may not want or be able to move, and there may be no jurisdiction offering households the particular package they prefer.

With respect to the elderly, there is some evidence of Tiebout sorting. Some research suggests that when local governments raise property taxes, older residents move to new homes with lower property taxes.Footnote ²⁵ More tellingly, this sorting occurs only under certain conditions. In one study, people who moved upon becoming empty nesters generally didn’t secure any change in their fiscal bundle.Footnote ²⁶ The conditions weren’t right. Many empty nesters still worked and were tied to their commute patterns; others lived in regions with school districts too large to easily leave; and still others lived in states where school finance equalization meant that crossing local boundaries still wouldn’t get them out of paying for schools. When the researchers narrowed in on those whose conditions were most Tiebout-amenable – retirees in regions with fragmented local governments and no school finance equalization – they found substantial sorting into places with less school spending and lower taxes.Footnote ²⁷

At the same time, capitalization provides residents a self-interested reason to invest in services they don’t personally use: the value of their home. A homebuyer purchases not only land and a structure but also the amenities connected to the location of that land, many of which are provided by local governments. They buy access to the neighborhood school and proximity to the neighborhood park. That access is priced into the sale of the house, along with the accompanying taxes. Accordingly, nonparents still care about school quality: Worse schools would mean losses on their largest financial asset. The tighter the link between service quality and home prices, the more those who don’t use local services will still work to maintain their quality. This mechanism helps minimize conflict between older and younger residents. Economists have found that the extent of capitalization, as determined by differences in the housing market, mediates whether the elderly support public education.Footnote ²⁸

19.4 The High Costs of Existing Mechanisms for Mitigating Age-Based Conflict

As mechanisms for navigating the politics of age, Tiebout sorting and capitalization are both rooted in the market for public services purchased through residency. Current political dynamics, therefore, point to two models for managing the local political economy: one based on democratic and participatory mechanisms, and the other based on these markets. In the first, an older populace leverages the mechanisms of local government to reduce investment in the future, potentially well beyond what the median voter might choose. In the second, public investment is preserved by letting people sort into different communities and capitalizing service quality into home prices. For many, this is an unappealing set of options.

First, the market model carries an initial drawback when applied to aging: It relies on mobility when many seniors hope to age in place. Surveys suggest that seniors overwhelmingly prefer to age in place for as long as possible.Footnote ²⁹ While some households are excited to move to retirement communities designed for a new phase in life, many more wish to maintain their community roots. Those who need assistance generally rely on informal care from friends and family, which may be harder to obtain after a move. Not all people want to, or ought to, trade those connections for an age-appropriate mix of taxes and services. Society should be careful about using prices to push seniors to move.

The larger issue, though, is that for many those market mechanisms offer a decidedly unattractive vision of local government: if not for senior citizens, then for everyone else. This model treats local government as a product to be consumed by those with the means to pay. As scholars like Gerald Frug and Richard Schragger have argued, this violates basic tenets of distributive justice, allocating fundamentally public services like a child’s education based on their parents’ wealth.Footnote ³⁰ Moreover, this model creates its own self-reinforcing politics, forcing households into a position that is “explicitly defensive and separationist.”Footnote ³¹ This market incentivizes local voters to demand homogeneity, to exclude anyone who might need more services than they pay in taxes, and to block any redistribution of local taxes. Even if it protects education from underfunding based on age, it might increase underfunding based on wealth, impeding efforts to fairly fund schools in districts with low property values.Footnote ³²

Leaning into these mechanisms further results in ever-tightening exclusionary zoning as voters strive to maintain exclusivity by any means available.Footnote ³³ Indeed, this market model relies on walls of exclusion, which must be maintained to divide those who bought public services at the “right price” from those who did not.Footnote ³⁴ Neither capitalization nor sorting is possible otherwise. Such exclusionary land use policies, however, come at enormous cost, driving an affordable housing crisis, entrenching racial segregation, costing the economy trillions of dollars, and spurring environmentally disastrous development patterns.Footnote ³⁵

The country’s most successful retirement communities paint a picture of this world’s highs and lows, as applied to aging. Florida’s The Villages, for example, is the country’s fastest-growing community, with over 145,000 residents. It has thrived by offering seniors a residential experience designed for them, with everything from social clubs to a golf cart-friendly transportation network. The community has its own hospital, but as a childless community, the only area school serves The Villages’ employees rather than its residents. From the perspective of its self-selected residents, this targeted experience provides a vindication of the Tiebout model; 90.8 percent of residents report high satisfaction with The Villages.Footnote ³⁶ Sun City, Arizona, the original active retirement community, receives similar raves: “I have some apprehension about dying, because to go to heaven won’t be as good as this,” reported one resident.Footnote ³⁷

But The Villages, Sun City, and their peers vindicate the Tiebout critics’ fears as well. As Lior Strahilevitz has observed, these are some of the most segregated places in the country, not just by age but also by race.Footnote ³⁸ Of the country’s five largest age-restricted communities, four have a population less than 1 percent Black; the fifth is 2.6 percent Black.Footnote ³⁹ Sun City and the other Arizona retirement communities notably rejected the state’s referendum to make Martin Luther King Jr. Day a holiday by ratios from 2:1 to 4:1, espousing what close observers called a “fortress mentality” manifest in the communities themselves.Footnote ⁴⁰ These physically and demographically closed-off communities became politically closed-off, as they “feel that they have nothing in common with outsiders and that they and the state owe these outsiders nothing.”Footnote ⁴¹ In creating places limited to people “just like them,” developers have offered seniors homogeneity in more ways than one – and perhaps built that segregation into residents’ political identity.

These purpose-built communities also blur the line between public and private governance. In The Villages, the developer owns the local newspaper and radio station, spends heavily on local elections, and even had a senior executive serving as a state legislator.Footnote ⁴² Just as the detractors of a Tiebout world predicted, these are places where private values and private power can, even more than usual, invade public policymaking.Footnote ⁴³

Finally, this solution still leaves education and infrastructure spending vulnerable. Sorting residents by age places the full cost of education and other long-term investments on middle-aged families with children. That increases the effective price of these services for those families, presumably requiring them to spend less. Some economists might like this outcome – it moves the property tax toward being a true benefit tax – but it would impose a sudden negative shock to current spending levels. Depending on how jurisdictional lines are drawn – a question of law – the withdrawal of funds might be considerable. Sun City, for example, eventually seceded from the local school district after years of conflict.Footnote ⁴⁴

Taken as a whole, then, the challenge posed by an aging population appears even starker. Voice and exit are always imperfect tools for informing and constraining government. But to manage local conflicts along the lines of age, they perform especially badly. Voice is distorted by the unrepresentative qualities of local politics. Exit relies on mobility that many seniors lack and requires entrenching some of the more troubling features of local governance.

19.5 The Three Paths to Managing Local Age-Based Politics

Conceptually the challenges that age poses to the local political economy can only be solved in three ways: reducing the generational gap in political preferences, reducing the generational gap in political influence, or reallocating functions to a level of government where politics work differently. The market mechanisms described earlier are examples of the first strategy, albeit costly ones. This section offers an additional example of each strategy to begin mapping what paths forward are available.

First, many places may be attempting to defuse conflict between seniors and nonseniors through targeted property tax relief. As of 2018, twenty states gave seniors a property tax exemption or credit, another ten gave localities the option to extend such exemptions, and thirty-nine states offered at least one program granting seniors property tax deferrals, circuit breakers, or assessment freezes.Footnote ⁴⁵ Such programs remain popular. In 2023, New Jersey cut most seniors’ property taxes in half, one of the largest tax cuts in state history.

These benefits are not usually pitched as political interventions. Instead, they are conceptualized as responding to seniors’ liquidity constraints. Seniors may be house-rich but income-poor, in which case rising property taxes can strain household budgets and force residents to leave their homes. But, as economist Randall Reback has observed, this tax relief can be understood as price discrimination for the Tiebout marketplace.Footnote ⁴⁶ Seniors are essentially offered a discount on their public services. This strategy manages the risks of both exit and voice. For mobile households, property tax relief offers a more attractive fiscal package. For those likely to stay, it is an inducement – some would say a “bribe” – to keep them from voting down school taxes.Footnote ⁴⁷ Empirical results confirm that property tax limits for seniors significantly reduce the negative effect of age on school funding.Footnote ⁴⁸ Under certain conditions, property tax relief might be a fiscal positive for local governments, if it buys tolerance for spending.

Such relief carries its own risks, of course. Many programs are economically regressive, offering the biggest benefits to those with the most valuable homes. Indeed, if programs are designed to prop up support for spending, this regressivity might be unavoidable. Oversubsidizing seniors also risks incentivizing people to stay in large homes they don’t need (and whose maintenance demands or age-unfriendly designs they might not want), freezing the housing market. Moreover, these programs risk intergenerational equity issues. Today’s seniors received help paying for schools from their elders but will not pay it forward to the next generation. And if the senior population grows enough, tax exemptions may prove unsustainable: The young will provide too narrow a tax base. But given the empirical uncertainties about the world of the 100-year life, the point is not to evaluate how well tax relief can smooth frictions over local finances. Rather, these programs show the potential of law to realign voters’ preferences.

A second strategy would rebalance local politics to account for younger voices. Moving local elections onto the presidential cycle is probably the lowest-hanging fruit here. At least for contested elections, this alone could help significantly. However, many local elections are not meaningfully contested.Footnote ⁴⁹ For these localities – for smaller jurisdictions in particular – elections are not usually where politics takes place and, therefore, are not a promising lever for reform.

Also important, therefore, is empowering younger residents in the rich participatory processes that occur between elections. This challenge has received some attention in the land use context, but proven tricky to solve. For example, one often-cited obstacle to including parents (and especially lower-income parents) in public hearings is the need for childcare. Thus, the COVID-19-era switch to online meetings hoped to reduce inequalities in participation.Footnote ⁵⁰ But it was a bust. In person, there was a 22.4 percentage point gap between the share of commenters over fifty and the share of voters over fifty. Online, that gap was 22.3 percentage points: identical.Footnote ⁵¹ Simply reducing barriers to participation appears insufficient. Bringing in diverse voices may require affirmatively soliciting input from residents separately by age and other demographics, a strategy that is effective but labor-intensive, hard to scale, and politically sensitive.Footnote ⁵² Avoiding the domination of unrepresentative voices, then, may require eliminating some participatory forums, especially where the additional process provides little probative value. But how to do so – what is best practice and what is feasible politics – is highly controversial.

If the local politics of age-skewed services cannot be improved, the third option is to avoid local politics altogether. Local responsibility for education and infrastructure emerged in one era. In a demographically different future, local governments might be the wrong stewards of these responsibilities. In state and national politics, older Americans are one interest group among many. Moreover, politics are more ideological, potentially cross-pressuring the effect of age on spending. While local government has many virtues, it may be a bad fit for managing these issues.

The effects of such a significant shift, though, are especially unclear. First, it’s uncertain whether such a shift would even succeed at protecting spending on long-term investments. William Fischel has argued that when California reduced local control over education spending, the immediate result was the state’s property tax revolt. Voters who couldn’t ensure that their taxes would be spent locally (and capitalized into their home value) wouldn’t let those dollars be spent at all.Footnote ⁵³ There is similar age-specific evidence that older households oppose state spending on education far more than they oppose local spending.Footnote ⁵⁴ If these results generalize (including to federal politics), shifting issues to higher levels of government is no solution. Even if that shift worked, it would let localism wither. Take away education, infrastructure, and probably land use as well, and outside big cities, there’s not much left for local governments to do.Footnote ⁵⁵ Local government could not function as a site for political empowerment, policy innovation, and meeting the disparate demands of a diverse polity. Such a trade-off raises profound questions about the purpose of local government.

19.6 Conclusion

As this brief discussion indicates, there are no easy answers here. There is too much uncertainty even about how aging affects the current local political economy, much less how future aging patterns (of a different generation, decades from now) change those politics again. Yet even as reforms addressing the local politics of age seem uncertain to work, they are guaranteed to implicate a host of fraught competing concerns. Age cuts too deeply, across too many core issues of local government, to be treated in isolation.

But, for the same reason, states and cities cannot ignore the aging of their populations. Doing so risks pitched fiscal conflict at best and potentially serious disinvestment in our future. Scholars and practitioners of local government law must, for at least some discussions, add age to race, class, and geography as a lens through which we view our subject. Then, at least, the effects of aging on local politics can be managed and, inevitably, muddled through.

Consider two Americans, one born in 1824 and the other in 1924. Both are fortunate to enjoy a 100-year lifeFootnote ¹ in a small or midsize city. Over the course of the first American’s lifespan, it is likely that she would see her independence increase on at least one dimension: her practical ability to access valued destinations.Footnote ² The advent of steam locomotives and steamboats made long-distance travel feasible, and horsecars and rail did the same for local travel. Roads became more common and improved dramatically in connectivity and quality.Footnote ³ As the twilight of her life approached, the automobile was becoming a mass-market product that opened up still other avenues of possibility. In her nineties, she likely could not take full advantage of this innovation, but she didn’t need to. All the other options still existed. In very old age, she continued to enjoy high levels of independence for as long as she could board a streetcar.

In terms of independence during the golden years, the American born in 1924 isn’t so lucky. As she progressed from early adulthood to middle age, cities dismantled their streetcar networks, shrank their sidewalks to widen roads, and routed highways right into the heart of their downtowns, dividing communities and gutting Main Streets in the process. Viewed narrowly, this might not have seemed all bad: In her middle years, it perhaps improved her independence on net, if she was in the fortunate majority able to take advantage of the car’s promise in that era even as other forms of transportation languished or were discontinued. But by the time she reached her eighties, when her ability to drive safely was deteriorating, reliable rapid transit no longer existed. In her final two decades, the fulfillment of her basic needs – buying groceries, accessing medical care, seeing family – became increasingly laborious, expensive, or infeasible. The ability to travel by air did little to offset these daily difficulties. Progress in technology, medicine, civil rights, and the economy left her much better off overall than her counterpart a century earlier, but her independence diminished more in old age than it would have in a different transportation paradigm. The driving life expectancy of Americans – the period during which they are able to drive safely – is about seven to ten years shorter than their life expectancy,Footnote ⁴ and for those who live 100-year lives, this gap is far larger.

In the US, the natural challenges of aging are magnified by a land-use and transportation system that compels reliance on the car. Alongside the rise of mass motoring in the middle third of the twentieth century, regulations that inhibit the growth of population density – zoning, parking requirements, minimum lot sizes, maximum lot coverage ratios, and so forth – came to dominate at the local level across the country. These ensured that different uses of land, like housing, schools, grocery stores, and job centers, were more separated from one another than they had been when their location was dictated by the usual pressures of supply and demand, and that they were arranged along a road network that required a car to navigate. This generates a variety of challenges for society as a whole, ranging from climate change to traffic deaths, as well as for particular groups. Older Americans are one such group: Many cannot operate a vehicle safely but could ride a bus, light rail, or train if a reliable and accessible network existed.

These policies, and the laws that implement them,Footnote ⁵ create two barriers to realizing the promise of the 100-year life. The first is that they shorten Americans’ lifespans. Compared to their peers in other high-income countries, the life expectancy of Americans is brief. Paradoxically, however, boosting American longevity would aggravate a second problem: In their golden years, Americans enjoy less independence than their peers. These problems cannot be reduced to a single cause, but they do share a common, vexing, and perhaps unexpected input: a built environment that requires driving as the price of first-class citizenship.

Addressing the bundle of laws and policies that require universal automobility is a colossal undertaking. Viewing these matters through the narrower aperture of the 100-year life, however, suggests cause for optimism: Perhaps more than in any other area, policy governing transportation can both increase life expectancy and broadly enhance quality of life in old age.

Section 20.1 considers the impacts of America’s automobile-first transportation system on the US’s life expectancy. It urges the adoption of proven, low-cost, and high-value automobile and roadway safety interventions in response. Section 20.2, which addresses quality of life in the golden years, proposes efforts to catalyze a competitive market to attract older Americans to locations that enhance their independence.

The concept of a competitive locational marketplace is well grounded in urban economics, but its potential as a solution to the challenges of sustaining independence in old age, described in Section 20.2, is relatively underexplored. The basic problem is that those fortunate to enjoy long lifespans can expect to outlive their driving life expectancy – the age when they can no longer drive safely – yet, outside of a handful of costly cities, America’s automobile paradigm offers them no viable alternative.Footnote ⁶ Section 20.2 makes the case for differentiated forms of living arrangements in old age that increase independence – the ability to access valued destinations – in diverse ways. Specifically, drawing on the stylized consumer-voter model of residential sorting developed by Charles Tiebout,Footnote ⁷ it observes that local governments can (and to an extent already do) join forces with developers to compete for retiree population share, allowing seniors to sort into communities that foster greater access to valued amenities in their golden years. This decentralized, instrumental approach will not appeal to everyone, but has the potential, through competition, to generate benefits beyond the places where it is embraced directly.

20.1 Car Crashes and Life Expectancy

Unintentional injuries – accidents, colloquially – are the leading cause of premature death for Americans aged one to forty-four.Footnote ⁸ In 2021, they accounted for more such deaths than the other top five causes combined.Footnote ⁹ In 2020 – a year when the COVID-19 pandemic caused approximately 350,000 deaths in the USFootnote ¹⁰ – unintentional injuries, which disproportionately claim young victims, cost more potential years of life than any other cause.Footnote ¹¹ Among such accidental deaths, traffic fatalities are either the leading or second leading cause of death for all age groups above one year.Footnote ¹² Because of their intensely negative impact on lifespan, these early-in-life deaths have a disproportionate impact on life expectancy in the US.

20.2 “Gray Tiebout Sorting”: A Transportation-Based Retiree Location Market

Although roadway fatalities and other causes of premature death restrict access to the 100-year life for many Americans, millions do enjoy extended longevity. Some projections suggest their ranks will swell in the coming years. Even among this fortunate group, however, many will not enjoy the full promise of their golden years because, nearly everywhere in the US, the built environment requires driving during a stage of life when driving is no longer safe. In fact, the season of life when those who live to 100 still have most of their faculties but can no longer drive safely is likely quite long – perhaps twenty years or more. To the extent that life expectancy climbs, the duration of this period will too.Footnote ³⁵

At present, the needs of Americans who outlive their ability to safely drive are underserved. A recent study concluded that “up to 60% of older adult drivers with mild cognitive impairment, and up to 30% with dementia, continue to drive,”Footnote ³⁶ and fatal crash rates on a VMT basis “increase noticeably starting at age 70–74 and are highest among drivers 85 and older.”Footnote ³⁷ Because a fatal crash in old age does not take as many life-years as it does in youth, increasing older-driver safety, while imperative, will yield fewer dividends in terms of life expectancy. However, the prospect of extending and enhancing their independence will appeal to many seniors. Some would presumably be interested in ways of preserving their ability to access valued destinations later in life.

Recognition by local governments and developers of the benefits of increasing personal independence for seniors offers a way forward. This can mean many things. States like Florida, for example, famously offer master-planned retirement communitiesFootnote ³⁸ that cater to the demands of retirees, including for independence.Footnote ³⁹ Other localities and developers provide late-in-life independence through walkable dense areas, golf carts and shuttles (perhaps autonomous ones in the futureFootnote ⁴⁰), and hyperlocal public or club amenities. So-called naturally occurring retirement communities in college towns, small cities, and some big-city neighborhoods provide access to a cluster of amenities without requiring a high degree of mobility. For municipalities, states, and developers, the financial benefits of attracting retirees are great, so in principle the incentives are already in place for what might be called transportation-based “gray Tiebout sorting.”

The standard urban economics model of voting for local government services with one’s feet is identified with an early exponent, Charles Tiebout.Footnote ⁴¹ Tiebout sorting posits the existence of a location market where individuals “move to the local government that best fits their preferences for public policies” through its particular mix of taxation and services.Footnote ⁴² Local governments offer different products – different bundles of services at different prices – that appeal to different location-consumers.Footnote ⁴³ Locations that provide consistent access to desirable amenities in old age could (and to some extent already do) compete for a bigger slice of the retiree population pie. Although it targets movers, standard economic theory predicts that on the margin this process also benefits the great many retirees who prefer to stay put by exposing their localities to competition.

When it comes to transportation and land use, the challenge is not merely one of mobility – physical movement across space – but rather one known in the urban planning literature as accessibility,Footnote ⁴⁴ which refers to connecting people with valued destinations. In the context of aging, this would allow them to continue to enjoy high quality of life and independence. These are high priorities for many retirees. As one indication, the AARP has taken up the cause of rating localities for their ability to “provide safe, walkable streets; age-friendly housing and transportation options; access to needed services; and opportunities for residents of all ages to participate in community life” and introduced a Livability IndexFootnote ⁴⁵ to facilitate what might be called gray transportation-based Tiebout sorting.

The variety of ways to operationalize an independent lifestyle – mixed-use development, subsidized private shuttles, public transportation, greater access to delivery services, and so on – underscores the promise of the market metaphor. So does the potential of increased fiscal capacity for local governments and profits for private developers: For these players, retirees are in many ways an ideal group. They have assets and bring revenue in the form of property, consumption, and income taxesFootnote ⁴⁶ but tend to underconsume widely subscribed local resources relative to their numbers. They do not attend or send their children to public schools. Meanwhile the cost of the services that they draw on disproportionately – physicians and hospitals, assisted living facilities – is borne primarily by the users themselves or by third-party payors like the federal government or private insurers. Others, like public libraries and parks, are provided at a relatively fixed cost such that increasing their use intensity is fiscally neutral.

Independence is only one component of the retiree location decision.Footnote ⁴⁷ There is reason to believe, however, that seniors place an unusually high value on sustaining independent mobility in their final years (or, increasingly, decades) – and that doing so is necessary for maintaining access to essentials like medical appointments and food. Making changes to the transportation–land use bundle requires reform of both law and policy,Footnote ⁴⁸ which runs into a thicket of Catch-22s. It is hard to make the case for public transit in an area that lacks the density to support it, but it is hard to grow the necessary density in an area that outlaws it through restrictive zoning or excessive parking requirements.Footnote ⁴⁹ The market for retiree location offers a plausible mechanism to help resolve this.

Economists have observed that the quality of local amenities explains some of the housing price premium in high-amenity areas over and above differences in the opportunity to increase earnings.Footnote ⁵⁰ A market for retiree location might be able to harness the same types of forces that render certain neighborhoods desirable to a particular demographic cohort. Just as some areas appeal to young professionals or families, others appeal to retirees. A deep market that offers a variety of ways of providing older residents ready access to amenities could stimulate intralocal or within-metropolitan competition for retiree market share. It might even be able to do this to a degree that generates spillover benefits to the general population. A catalyst of this sort might help areas that have struggled to overcome the inertia of the twentieth-century automobile planning paradigm to up their game.

A retiree location market already exists, and growing attention to longevity can provide a framework within which it can be cultivated further by profit-driven and public-minded forces alike. Not many places offer meaningful alternatives to automobility, and even doing so within a concentrated area requires combating decades of entrenched policy.Footnote ⁵¹ This is what makes the promise of the retiree location market intriguing: the potential for an efficient alignment of incentives. A well-defined cohort and geographic area lend themselves to narrower matching of services to needs. In the simplest case, a single owner, such as a private developer, stands to internalize the benefits of investment in accessibility-driven independence. In a more typical case, a small number of owners, some private and others public, may be able to coalesce around a common goal of improving accessibility within a given area. Many ingredients of success are present.

20.3 Conclusion

Broadly, extended longevity poses two policy challenges: making it feasible in the first place and enabling those who achieve it to thrive. Transportation policy is central to meeting both challenges.

In order to increase access to the 100-year life, it should be the policy of the US at all levels of government to grow life expectancy. There are many worthy ways to do that; this chapter emphasizes road safety interventions that target high-mortality crash factors – including failure to wear seat belts (associated with about half of crash deaths), speeding (about a third), and drunk driving (same). Each of these factors claims a disproportionate number of young lives, which means improving outcomes will reap outsize gains in life expectancy. They can also be rolled out in relatively quick and low-cost ways, using proven and experimental interventions that maximize gains in life expectancy by targeting those roadway behaviors that rob Americans of the most life-years. This focus may sound like common sense, but it rejects the fad of design essentialism that has swept roadway reformers in the past decade.

At the other end of the age distribution, a focus on helping seniors maintain access to valued destinations can enhance quality of life in the golden years. If local governments and property developers approach hyperlocal goods with the challenge of golden-years mobility in mind, they can stimulate transportation-based gray Tiebout sorting: residential self-selection by older Americans into locations that maximize mobility and independence. This, in turn, can create pressure on other places to increase their offerings. Thus, while skepticism is warranted about the potential for transportation-based Tiebout sorting in general, there are good reasons to expect one aspect of it – sustained independence past the age when one can drive safely – to hold more promise for some retirees.

This chapter examines how property regimes are likely to respond to the significant increase in average life expectancy predicted by “100-year life” theories. It takes a relatively pessimistic position, arguing that the optimal institutional response to demographic aging will be very difficult to produce: Some countries, most notably the US, are likely to underrespond to the socioeconomic demands that demographic aging will probably impose on property law, whereas others, such as China and Japan, may well overrespond. This is because, within the realm of property rights and regulation, the economics and politics of demographic aging may well contradict each other: Aging potentially reinforces political opposition to public governance even as it creates economic demand for it.

21.1 Social Models of the “100-Year Life”

The first step of any intellectual exercise on the legal impact of a “100-year life” should, of course, be to unpack what such a significant gain in life expectancy would mean in broader socioeconomic terms. A society in which the top-income classes live on average to 100, but lower-income classes live only to seventy-five – which is increasingly where the US is headedFootnote ¹ – obviously would have fundamentally different structural problems and institutional needs than one in which most people’s life expectancy rises into the nineties – Japan, for example, seems headed more in this direction.Footnote ² Furthermore, an aging society that is also shrinking in total population has a completely different set of problems than one that is demographically stable or expanding.

To make this exercise manageable, this chapter will focus on one specific set of circumstances: a society that is seeing life expectancy increase significantly across the board and that does not demographically contract. With some exceptions, most developed countries have yet to experience outright demographic contraction despite significant aging and may not experience it even in the future if they can sustain a reasonable amount of immigration.Footnote ³ Some of these societies also have a strong-enough welfare system that life expectancy gains are distributed somewhat equitably across economic classes – although many, including the US, do not.Footnote ⁴ The great majority of developing countries, in contrast, continue to expand demographically while seeing life expectancy increase across nearly all social classes. In other words, they age while not necessarily becoming smaller.

Under these general circumstances, the total amount of resources needed to sustain a society will increase if and only if aging dovetails with population growth, but the consumption and possession of those resources will inevitably shift toward the older end of the population. The ramifications of such a shift for general socioeconomic inequality are unclear:Footnote ⁵ On the one hand, longer life expectancy may increase economic inequality within age cohorts by amplifying the consequences of differences in physical endowment, intelligence, education, and inherited wealth. On the other, societal aging could also increase the economic returns to labor relative to capital and, therefore, reduce inequality.

Regardless of which of these scenarios materializes, an aging population will probably produce significant socioeconomic demand for urbanization and public infrastructure. Unless there is some fundamental breakthrough in medical technology, older populations will require more medical care than younger ones, even if they are not necessarily any less economically productive. Given that there are still enormous economies of scale in the provision of medical care, all else being equal, longer life expectancy will probably lead to more urbanization over the long run, which, all else being equal, will produce greater functional demand for public infrastructure.Footnote ⁶

At the same time, longer life expectancy means that a smaller share of an individual’s life will be spent living with his or her parents. In other words, older populations will likely consist of more households than younger ones – unless, of course, a significant share of elderly people move back in with their middle-aged children, which is rarely the case in developed countries and significantly less likely to be the case in developing countries now than it was several decades ago. This will produce greater demand for housing units in general, but perhaps less demand for large, single-family homes. There are obvious synergies between both of these trends and the aforementioned demand for urbanization.

All of these likely developments will place some institutional demands on property law, and particularly on its land-use subcomponents. Urbanization, demographic density, and housing unit availability are all intimately supported or constrained by various property rights systems, and any significant and durable shift in them will require corresponding adjustments in those systems. For the most part, a shift toward greater density and higher levels of urbanization will probably generate higher levels of socioeconomic demand for more “publicness” in property institutions, but not all legal systems will respond to this demand in a positive manner – and it is not even clear that it is always normatively desirable for them to do so.

21.2 Property Regime Types

Property regimes deal with the demands of resource allocation and demographic management though varying levels of centralized regulation and private self-governance. Nearly all regimes make some use of both, but the specific combination differs sharply from country to country and region to region. On one end are highly centralized regimes, most often seen in smaller, more concentrated jurisdictions – Singapore may be closest of any country to this ideal typeFootnote ⁷ – that rely primarily on state-driven planning and rule-making. In such regimes, the state enjoys high administrative and legal capacity within its geographical boundaries and, therefore, can regulate and control property relationships in relatively granular, socioeconomically contextualized ways through a combination of laws, rules, and executive actions. Scholars have sometimes labeled these “governance”-type regimes.Footnote ⁸

Several East and Southeast Asian countries take a governance-oriented approach to property law. Land use in Japanese cities, for example, is controlled by a top-down yet nonetheless highly detailed legal structure in which the central government possesses ultimate authority over all local laws and regulations.Footnote ⁹ Much of this authority is delegated to lower-level governments, allowing for finessed adjustments based on local conditions, but there is a substantial amount of procedural uniformity throughout the system. Although the vast majority of property is indeed privately owned, the state, rather than private entities, supplies the lion’s share of property and land-use institutions, enjoying very robust regulatory powers.

Despite being a theoretically “socialist” legal system in which the state nominally owns all nonrural land, the Chinese property system shares a large amount of functional common ground with the Japanese system: Land use rights are privately owned, used, and alienated, but laws and regulations govern these activities with very high levels of granularity, right down to exercising direct oversight over many homeowners’ associations.Footnote ¹⁰ Private property owners are compensated for government expropriation but generally not for regulatory interference.Footnote ¹¹ Given China’s enormous size, there is significantly more regional institutional variation than one finds in Japan, but such variation stems primarily from provincial and local state activity rather than from self-governance by nonstate actors. More recently, the coronavirus pandemic has only seemed to strengthen the state’s presence in and control over nearly all facets of urban life.

These institutional features carry substantial benefits but also major costs. On the one hand, they allow legal systems to effectively respond to market failures and impose public solutions for socioeconomic problems that belie private management. This is particularly valuable in urban settings where high population density and its socioeconomic consequences often require robust state action. It is no coincidence that East and Southeast Asia are now home to both a disproportionately high number of the world’s largest – and often richest – megacities and some of the most aggressive and powerful property governance regimes. There is a strong functional correlation between the two. On the other hand, expansive governance powers can also be misused, leading to high levels of corruption and, occasionally, severe systemic misallocation of resources: China’s often wasteful urban development over the past three decades is perhaps the most economically visible example of this.Footnote ¹²

On the other end of the spectrum are weak state capacity regimes – relatively speaking, at least – in which the state lacks the ability to intervene effectively at the granular level and instead supplies a simple legal regime that provides a basic and highly standardized allocation of private rights and obligations upon which nongovernmental actors can layer supplementary social norms and self-governance institutions. Because the simplest and most effective basic allocation tends to be one that predominantly relies on private ownership, backed by strong rights of exclusion, these legal regimes are sometimes called “exclusion regimes.”Footnote ¹³ One of the most prominent examples in the modern world is the US.

American property law and land-use law have historically been constructed around a fundamentally privatized paradigm, specifically, a fee-simple paradigm that is rooted in private land ownership by socioeconomically independent single-family households. American law therefore prioritizes private security, clarity of rights and obligations, and legal standardization over finessed governance.Footnote ¹⁴ Under this paradigm, property owners typically possess strong and clear rights of exclusion against trespassers of all kinds, sometimes backed by the right to claim exorbitant amounts of punitive damages against intentional trespassers. Governmental expropriation of land is, as a rule, both legally complicated and financially costly.

American property owners enjoy relatively expansive freedom to use their land as they please, only constrained by a relatively limited set of state-imposed usage regulations – for which the state must sometimes offer compensation, private covenants and easements, and a functionally unwieldy nuisance law.Footnote ¹⁵ The latter, in cases where neighboring property owners engage in mutually incompatible uses, typically grants legal priority to the highest value use through an amorphous balancing test. Finally, there are relatively few legal constraints on property alienation, allowing for a largely free and open real estate market. All three of these “sticks” – strong exclusion rights, relatively unconstrained use rights, and free alienation rights – are usually wrapped in a uniform fee-simple parcel that grants a single household perpetual and undivided ownership over a spatially condensed property parcel, usually a piece of land.

This kind of exclusion-oriented paradigm originated in a historical sociolegal context in which land was relatively plentiful and, therefore, cheap and sparsely populated: Due to a combination of relatively low population density and constant westward expansion, property law in the early American republic was often constructed without the kinds of scarcity rationales that drove – plagued, perhaps – contemporary European and Asian legal systems.Footnote ¹⁶ The abundance of arable land, often seized through armed conflict with indigenous peoples, meant that the law could operate in general and relatively standardized terms without risking either significant loss of economic efficiency or grave sociopolitical tension over resource distribution and use. This allowed it to coalesce around a largely unified paradigm of private ownership and control, with weak constraints on usage rights and a comparatively limited role for the state.

Such a paradigm could no longer function well once the population became increasingly urbanized over the course of the late nineteenth and early twentieth centuries. The density of urban populations and the inherently greater need for public infrastructure in cities meant that the state had to take a more active role in property and land-use regulation, which eventually led to the rise of urban zoning in the 1920s. Even after these developments, however, American urban property regulation remained substantially more decentralized and privatized – more exclusion-oriented, in other words – compared to more governance-oriented legal systems. To this day, there is relatively little centralized rule-making or legislation, with cities, towns, and counties doing most of the regulatory work without top-down guidance.Footnote ¹⁷ Beyond that, an enormous swathe of socioeconomic rules come from private contracting and governance: homeowners’ associations, condominium associations, cooperatives, corporations, and the like.Footnote ¹⁸

This kind of institutional structure not only produces large amounts of regional variance but also gives abnormally large amounts of regulatory power to long-term local property owners, often at the expense of shorter-term residents, especially tenants. It therefore facilitates significant levels of NIMBYism (“not in my back yard”-ism), which aims to keep real estate scarce and local property values high, even if doing so produces serious housing shortages and escalating inequality.Footnote ¹⁹ This long-term owner-centric political economy functionally dovetails with the broader exclusion orientation of American property law, further privileging private control over public governance.

21.3 Aging, Urbanization, and Property

One might imagine that demographic aging and the greater urban density it will likely create will exert a largely uniform force on property institutions – in favor of public governance and away from privatized exclusion – but that would be an oversimplification. It is almost certainly true that aging and urbanization will create greater functional demand for public governance, but it is unclear whether legal systems will actually respond to this demand. The political economy of aging may well prevent exclusion-oriented systems like the American one from breaking free of institutional path dependence. At the other end of the spectrum, although governance-oriented regimes will probably be able to ramp up governance and public legal infrastructure in response to demographic aging, there is also a distinct danger that they will do so too aggressively.

Consider first the range of possible political consequences of demographic aging in a democratic, relatively decentralized, exclusion-oriented system like the US: An aging population is not merely one that requires more health care and public goods but also one that will likely experience significant changes in political orientation and composition. Two specific changes are especially relevant for property governance: first, older populations are, all other things being equal, somewhat more conservative than younger ones, particularly with regard to property rights.Footnote ²⁰ This may amplify resistance to public governance in societies that are politically conditioned to mistrust state authority. Second, older populations are also somewhat less geographically mobile ones,Footnote ²¹ which means that political capture by NIMBYism could worsen under some conditions.

The connection between aging and political conservatism is a fairly well-documented phenomenon. As people age and accumulate wealth, they often have more to lose from radical political and legal change and are, therefore, inclined to support stability over change, risk aversion over risk-taking – the very definition of Burkean conservatism. In particular, their relatively larger amounts of private wealth create stronger demand for secure and legally unburdened private property rights. The fact that most people will have exhausted their potential for upward socioeconomic mobility by middle age further intensifies this demand: If I feel there is no longer much room for me to rise on the socioeconomic ladder, but a significant amount of room to fall, then I will likely become more risk-averse and, therefore, more jealously protective of what I already have. Moreover, given that older generations naturally hold – relative to their demographic share – a disproportionately large share of societal wealth,Footnote ²² they are also less likely to be pro-redistribution than younger generations. These tendencies do not imply that older populations will necessarily become significantly more conservative across all ideological dimensions, but to the extent that property rights are a politically salient issue, they will likely lean toward classical conservative positions of strong private property rights and limited state intervention even if they lean liberal on other issues like race or gender.

These inclinations are likely more powerful in societies like the US that have deep sociopolitical traditions of “state skepticism.”Footnote ²³ The relative lack, both historical and contemporary, of resource scarcity and high population density in the US meant that it could do without robust top-down governance for long periods of time – and that robust top-down governance was substantially more difficult to establish. Coupled with long-standing ideological inclinations toward decentralization and deregulation, these socioeconomic conditions render the American legal system inherently more hospitable to conservative-leaning positions on property rights and exclusion and, therefore, amplify the political influence of such trends whenever they emerge.

Furthermore, because demographic aging also tends to concentrate wealth in the hands of senior generations, it also grants them higher levels of sociopolitical status, often at a considerable cost to younger generations. In particular, unless significantly increased inheritance taxes get in the way, longer life expectancy naturally enhances the socioeconomic significance of inheritance, which increases intergenerational economic dependency, thereby further boosting the sociopolitical status of the elderly – a form of economically enhanced gerontocracy.Footnote ²⁴ In other words, if demographic aging is the driving factor, then not only will the ideological composition of a society trend toward conservatism, but the political power of its more conservative components will also increase. Combined, these forces can easily produce an ideological swing that reinforces any preexisting institutional bias toward exclusion and privatization.

The impact of demographic aging on property is therefore inherently complex, perhaps even self-contradictory: At the economic level, it produces major demand-side pressures and incentives in favor of public governance, but at the political and ideological level, it will also produce significant trends that instead favor private exclusion. Now, one could argue that the former will, over the long run, produce changes in political perception that eventually neutralize the latter – that elderly property owners will eventually embrace the societal and personal need for more governance, given that they are some of the primary beneficiaries of it – but this assumes a fairly primitive version of economic determinism. In fact, it is not even clear that the economic calculus for senior property owners will be perfectly aligned in favor of governance: Seniors may have much to gain from stronger public governance, but by virtue of their stronger economic position, they also have less to lose from sticking to an exclusion-oriented legal paradigm. As a result, the economic costs of indulging their ideological and political preferences are not necessarily that large.

Given this inherent political complexity, instead of seeing a universal shift toward governance as societies age, we may simply experience another couple of decades of institutional path dependency. There are at least two different ways to understand this: First, the relatively complicated bundle of institutional incentives that demographic aging produces, in which economics and politics have a tendency to cancel each other out, makes it somewhat less likely that the political benefits of a progovernance shift in property law will be large enough to clearly outweigh the costs of large-scale institutional change. Institutional inertia is, as scholars have long recognized, an inherently self-reinforcing force: It is always costly to overturn a long-standing institutional paradigm, both because of the administrative costs necessary for institutional change and because of the economic uncertainty it unavoidably generates.Footnote ²⁵

These costs are especially strong and salient in the context of property law: More so than other parts of the legal system, and perhaps even more so than other components of private law, property law places an enormous functional premium on institutional stability and economic predictability.Footnote ²⁶ Given that property rights constitute the legal foundation of almost any economic exchange and any attempt to utilize an economic resource, any changes to property institutions are systemically magnified through the layers of contracting, tort rights, or organizational governance that are built upon that foundation. Reliance interests are therefore unusually strong in property law, both descriptively and normatively, even by the standards of private law. An exclusion-oriented property law may or may not be functionally superior to a governance-oriented one, depending on the socioeconomic context, but an institutionally stable property law is almost always functionally superior to a constantly changing one. As a result, property law tends to be unusually path-dependent, usually requiring an unusually large amount of political force to generate paradigmatic change. Demographic aging, with all its internal sociopolitical contradictions, is not especially likely to satisfy this requirement.

Second, how the institutional politics of aging play out in any specific society will depend heavily on what kind of political priors and leanings it carries into the process: In all likelihood, societies that are already institutionally and politically conditioned to favor exclusion over governance will likely assign greater amounts of perceived salience to the political costs discussed above, and less to the economic benefits; whereas those that are institutionally predisposed toward governance will likely do the opposite. When there are strong and complex forces both for and against an institutional change, which side wins out in the end will often depend on perception rather than objective significance – and therefore be subject to significant confirmation and framing biases that generally work in favor of path dependence.

To illustrate how these dynamics might play out in real life, consider what could happen if the US population reaches an average life expectancy of around ninety years in the near future – from around seventy-eight currently. Such a leap might seem overly optimistic given the stagnation and even decline of this statistic in recent years, but the country has experienced large gains in life expectancy after decades of stagnation before: From 1950 to 1970, American male life expectancy stagnated at around sixty-seven, and then leaped to seventy-three by 1990, and then to current levels by around 2008.Footnote ²⁷ Imagine, then, a qualitatively similar but quantitatively more robust demographic trend emerging on the back of biomedical breakthroughs over the next two or three decades.

The last time this “sort of” happened, American politics underwent the Nixon era and the “Reagan Revolution,” ending up, in most parts of the country, with a more conservative property regime that undid at least some of the progress toward fair housing and aggressive land-use regulation that had marked the 1960s.Footnote ²⁸ Private exclusion never gave way to public governance as the population aged, and if anything, the trend was in the opposite direction. Demographic aging may well have had something to do with this: Even as younger, more mobile demographics flocked into large cities, older groups of long-term homeowners managed to successfully combat a considerable share of proposed public development projects and maintain privatized control over most parts of major American cities like New York and San Francisco.Footnote ²⁹ Ironically, all of these cities are highly liberal in basic political orientation but nonetheless persistently conservative in how they have handled land-use regulation and property development.

History may well repeat itself if the American population undergoes yet another major round of aging: The elder generations in society, now more populous than they have ever been, flock to cities, towns, or the suburbs of major metropolitan centers in search of better health care, and as they do so, they are often wealthy enough to purchase title to property rather than rent. This drives up urban property prices, much to the delight of local property owners, new and old. When the city government attempts to construct affordable housing to accommodate the younger working population, which is increasingly being priced out of the real estate market, property owners rebel and manage to stall most of the projects. Infrastructure development meets with similar obstacles insofar as it requires some expropriation of private property, but homeowners are willing to pay the price of mediocre infrastructure if it means keeping the government away from their property assets, which are increasingly important to them as they age and become more reliant – both economically and psychologically – on those assets. In the end, the US becomes even more urbanized, but without any corresponding expansion in governmental regulatory authority or taking powers and without the expansion of affordable housing needed to ward off gentrification and escalating socioeconomic inequality, both of which intensify in the aftermath.

Contrast this with what might happen – indeed, has already happened – in an aging but governance-oriented society like China or Japan: Once demographic aging becomes a sociopolitically salient issue, multiple layers of government will likely claim that it presents societal challenges of caregiving and health services that can only be solved through public coordination and infrastructural renewal. This will give them political cover to pursue large-scale construction projects in metropolitan centers to accommodate the demographic influx into cities, and also to redraw land-use regulations to create the institutional space for those projects. The former will almost certainly require heavy use of eminent domain, which will in turn create political opportunities to expand that power and reduce the bargaining power of private property owners. In fact, the expansion of government regulatory and expropriation powers in urban centers is more or less what has already happened in Japan over the past two or three decades,Footnote ³⁰ and is also what has been happening in China in the past five to ten years.Footnote ³¹ In the latter case, demographic aging only became a highly salient sociopolitical issue in the past decade, which has coincided with a partial reversal of the privatization and market-oriented property law reforms that characterized the 1990s and early 2000s. Instead, most Chinese cities now seem to be moving toward a property rights regime in which the government exercises tighter regulation over both land use and transfer and also continues to expropriate land with high regularity.

These measures have met with some resistance from urban homeowners, who have occasionally spoken out – or taken even more dramatic measures – against what they perceive as governmental encroachment on their rights and, perhaps more importantly, on the economic value of those rights.Footnote ³² Even so, their actions seem to have produced very limited concessions from the state, even before the COVID-19 pandemic made the expansion of state control all but irresistible in nearly every East and Southeast Asian country. There was, and is, no clear sociopolitical consensus in favor of shielding private ownership rights from state authority in many of these societies, some of which have clearly favored statist solutions to socioeconomic problems for decades. Once demographic aging becomes firmly embedded into political discourse and its economic effects are made clearer, it may even produce strong bottom-up social demand for more state intervention – which would likely baffle American property owners.

These sociopolitical conditions will almost certainly allow governance-oriented regimes to more robustly address the economic challenges of demographic aging than their exclusion-oriented peers, but that may very well prove to be a mixed blessing. In regimes where the accountability of government officials is relatively low and social distrust of them is relatively high, further expansion of public governance may lead to unsustainably high levels of corruption and eventually to strong public dissatisfaction. Moreover, too much state intervention is a distinct possibility in some of these regimes: State control and regulation is all too often an inherently self-reinforcing thing and could easily snowball in suboptimal ways if left to its own devices.

This can happen through at least two different mechanisms: First, government officials may simply enjoy the status and power that an expansion of governmental authority gives – including, perhaps, the rent-seeking opportunities it creates – and therefore seek more of it. As their power grows, it becomes more and more difficult to keep their self-interest in check, until eventually the system arrives at a breaking point. Second, and somewhat less nefariously, more state regulation may erode the self-governance and self-regulation capacity of some local communities: Neighborhoods or villages that previously produced robust social norms and covenants become reliant on the state for the regulation and coordination of socioeconomic behavior.Footnote ³³ This produces even more demand for state intervention, which then erodes social institutions even further, generating a vicious cycle of constant governmental expansion. By creating strong demand for public goods and infrastructure that only the state can effectively provide, demographic aging could potentially set off either of these processes – or both – thereby producing too much state control over the long run.

China is arguably in the early stages of this: Over the past decade, the government has consistently expanded its regulatory and planning powers, often at significant cost to social or communal institutions like residents’ associations.Footnote ³⁴ Increasingly, it sees almost any type of social self-governance as a threat to its control and has attempted to formalize such self-governance into the state apparatus more fully.Footnote ³⁵ While it is still too early to tell whether these trends will lead to measurable overregulation, things certainly seem to be headed in that direction. At the very least, it is extremely difficult to imagine how, under present circumstances, the expansion of state control can be halted, let alone reversed, which would seem to suggest that, if there is such a thing as too much governance, then China currently seems to be as good a candidate to eventually reach it as any in the modern world.

21.4 Conclusion

This chapter has discussed some possible property law and land-use regulation scenarios that could potentially emerge in response to certain forms of demographic aging. Regardless of the plausibility of its factual assumptions, it has attempted to tease out some of the likely interactions between demographics, economic demand, and political composition and to show that the economics and politics of demographic aging may well contradict each other when it comes to property law. The most likely institutional outcome therefore seems to be path-dependent: Countries that are currently exclusion-oriented will continue to be exclusion-oriented, and therefore underrespond to the economic demands of aging. In contrast, countries that are already governance-oriented will likely become even more so, to the point where overgovernance becomes a distinct possibility. The ideal balance between these two poles, like any optimal political economic equilibrium, may well prove highly elusive.

There is a striking mismatch in contemporary society between the types of housing that elderly residents want and what the market delivers to them. Overwhelmingly, older Americans say they want to age in place. And if they must leave their current homes, most would like to stay in a home-like environment proximate enough to their present home to keep their existing social networks intact. In this chapter we examine legal rules that thwart the wishes of so many seniors to age in place and reside in homes that feel more residential than institutional. As recent history has shown, this desire to live in a scaled-down residential environment at the point in their lives when elderly people must lean on third parties to help with personal care is not merely a matter of personal preference. It can be a matter of life and death.

As the world approaches a half-decade since COVID-19 emerged, the horrific damage is plain to see. The elderly have been the hardest hit demographic group by far, with senior citizens representing more than three-quarters of lives lost to the disease in the US.Footnote ¹ But the elderly are far from homogenous, and the variation in contagion risk has been especially pronounced based on where seniors lived. The majority of older adults will need caregiving support during their lifetimes.Footnote ² Although 0.6 percent of the US population resides in assisted living or nursing home facilities, these residents account for up to 42 percent of COVID-19 deaths.Footnote ³ Some research suggests that nursing home residents were nearly twenty-seven times as likely to die of COVID-related causes as senior citizens who did not live in nursing homes.Footnote ⁴ Elderly residents of single-family homes and apartments fared so much better in comparison as the disease spread rapidly through congregate living communities. The average nursing home resident is in poorer health than the average senior citizen, but even accounting for that difference the disparity in mortality remains striking.

Nursing homes differed greatly in terms of their success deploying COVID-19 countermeasures. As we will show, there were nursing homes that managed to protect their residents against the ravages of the pandemic much more effectively than their peers that followed more traditional models of elder care. There is some research suggesting that nursing homes that provide their patients with the highest levels of care did successfully protect their residents from COVID-related deaths in comparison to lower-quality facilities. But even the research suggesting that higher-quality facilities reduced COVID-related deaths indicates that this admirable performance was accompanied by a marked increase in non–COVID-related excess mortality. So it’s possible that the higher-quality nursing homes saved residents from COVID-19 deaths while subjecting them to a higher risk of non-COVID deaths. This higher overall excess mortality may have resulted from the effects of isolation on the elderly.Footnote ⁵ Other research, including meta-analyses, finds no consistent relationship between nursing home quality metrics and COVID-19 mortality.Footnote ⁶

So if it wasn’t the highest-quality nursing homes that most successfully prevented deaths that resulted directly and indirectly from COVID-19, what kinds of nursing homes served their residents best? The answer is the Green House nursing homes, which do not necessarily have a higher quality of care than a typical nursing home but do offer a different benefit – they’re small, with a typical resident population of ten to twelve per facility. These Green Houses, scattered across the country, appear to have largely avoided the worst harms of the pandemic. During the pandemic’s first year, before vaccines became widely available, residents of Green House homes were about five times less likely than traditional nursing home residents to have contracted COVID-19, and about twenty times less likely to have died as a result of the disease.Footnote ⁷ This was true even though Green House residents were older and sicker than residents of other nursing homes, at least in some jurisdictions.Footnote ⁸ In Kansas, PEAK nursing homes that were not affiliated with the Green House movement but that practiced person-centered care and adopted some Green House policies, such as creating clusters of thirty or fewer residents who were consistently helped by the same nursing staff, saw COVID-19 infection rates 2.5 times lower than non-PEAK nursing homes.Footnote ⁹

The reasons why Green Houses and similar scaled-down nursing homes performed relatively well when stress-tested by COVID-19 are straightforward. As we explain below, Green Houses adhere to several organizing principles, including ten to twelve residents per home and private bedrooms. These attributes provided significant resiliency against the disease. Fewer residents and fewer staff rotating through resulted in fewer potential sources of infection entry.Footnote ¹⁰ Not surprisingly, smaller nursing homes saw fewer infections and deaths than their larger counterparts.Footnote ¹¹ Indeed, facility size and virus prevalence in the community were the two most powerful predictors of COVID-19 infection rates. In traditional nursing homes, private bedrooms and bathrooms are not the norm.Footnote ¹² The importance of private bedrooms in limiting the spread of infections was well understood long before the pandemic. According to one estimate, converting all shared bedrooms into private bedrooms would have decreased COVID-19 mortality by 30 percent in nursing homes.Footnote ¹³ Moreover, Green House residents were able to do what residents of other nursing homes could not do – minimize the risk of contracting COVID-19 while still maintaining social ties with their fellow residents.Footnote ¹⁴ Green House homes are more than twice as likely to offer protected outdoor spaces for socialization, such as screened-in porches, compared to traditional nursing homes.Footnote ¹⁵ In short, residents could reduce the risk of the virus entering the facility, lower the risk of the virus spreading if one resident did become infected, and continue to socialize within their protective bubble rather than being isolated.

It’s an open question whether the comparative data on COVID-19 mortality will spark a marked shift in the demand of well-resourced older Americans for Green House living arrangements. Rationally, elderly Americans should recognize that another pandemic is likely to hit the US in the decades to come. It is possible that memories of the pandemic will permanently alter consumer preferences and behaviors in ways that resemble the lifelong impact of the Great Depression on those who lived through it.Footnote ¹⁶ On the other hand, there is a possibility of survival bias. The present population weathered the last storm, and a focus on their own experiences may make them overconfident about their ability to survive the next deadly pandemic, even as changed health circumstances and age make them increasingly vulnerable over time. Assuming that salient experiences with COVID-19 do spark a shift in older Americans’ preferences, the key questions are whether legal and financial obstacles to their creation will frustrate that demand.

Seniors living independently were more likely to survive COVID-19 than the institutionalized elderly. Retirees with the income and ability to remain at home in lockdown conditions, getting groceries and other life necessities delivered, generally were able to avoid infection until the vaccines arrived.Footnote ¹⁷ Given a preference, seniors consistently tell survey researchers that their paramount desire is to age in place until doing so is no longer feasible.

Accessory dwelling units (ADUs or, parochially, “Granny Flats”) are a straightforward and easy way to satisfy that preference for aging in place as seniors’ housing needs change during the course of their life cycles. While some jurisdictions have moved to make ADUs easier to build in recent years, there is still a great deal of resistance to land-use liberalization. As the pandemic has shown, zoning restrictions that constrain the development of these affordable units have likely contributed to the loss of life by forcing seniors into higher-risk living environments.

Our claim in this chapter is straightforward. Older Americans overwhelmingly prefer scaled-down living. That preference exists when they can live independently, and it remains when independent living is no longer realistic. This preference for living small may receive a further boost as seniors and their loved ones come to grips with the data on infectious disease risk. Forms of housing that provided protection for their residents during the pandemic, especially Green House nursing homes and lower-cost, single-family residences such as ADUs, will become more desirable than they already were. Yet existing zoning laws in much of the US are a key impediment to developing the kinds of housing that seniors increasingly want at the scale that an aging society will need. We will discuss these impediments and identify promising reforms to satisfy this growing demand among the elderly for more intimate and protective housing arrangements.

22.1 The Green House Alternative

Geriatrician Bill Thomas pioneered the concept of the Green House long-term care facilities to address the shortcomings of traditional nursing homes. Green House homes are mostly nonprofit facilities.Footnote ¹⁸ Green House homes provide each of the ten to twelve residents with a private bedroom and en suite bathroom. The residents share an open kitchen, dining and living areas, and outdoor spaces.Footnote ¹⁹ Each house employs “Shahbazim,” typically nurse’s assistants who care for residents, do laundry, cook, clean, and order supplies. The available research suggests that Shahbazim are able to devote a higher percentage of their working hours to direct and indirect care of residents than is typical at traditional nursing homes, thanks in part to their ability to engage in tasks like cooking and cleaning while interacting with residents.Footnote ²⁰ The Green House’s founders deemed taboo traditional aspects of nursing homes – such as nursing stations, intercoms for paging healthcare professionals to rooms, and medication carts.Footnote ²¹ Residents of the Green Houses could set their own schedule for going to sleep and waking up, for receiving personal care, for eating, and for engaging in activities.Footnote ²² Where feasible, residents themselves would participate in cooking, laundry, gardening, and caring for household pets.Footnote ²³ Housing concepts that share features similar to Green Houses have emerged in other parts of the developed world, including the Clustered Domestic model in Australia, the Butterfly model in Canada and the UK, and Dementia Villages in the Netherlands.Footnote ²⁴

In 2003, the first Green House homes opened in Tupelo, Mississippi, embracing the Green House movement’s tripartite vision – providing a “real home,” a “meaningful life,” and an “empowered staff.”Footnote ²⁵ To facilitate evaluations of the model, efforts were made to ensure that the residents of the first Green Houses resembled those of comparable nursing homes insofar as possible, and all of the initial residents transferred from traditional nursing homes were managed by the same nonprofit.Footnote ²⁶ There are now some 300 Green House homes in thirty-two different states, mostly organized as nonprofits.Footnote ²⁷ At the same time, because of the small size of each home, the total population of all the Green Houses is approximately 3,200 people.Footnote ²⁸ At least in the original Green House homes in Tupelo, African American seniors were more prevalent than in Tupelo’s traditional nursing homes.Footnote ²⁹ The reverse is true of New York’s Green House homes, in which white residents are overrepresented.Footnote ³⁰

Though still relatively few in number, the Green Houses have been studied extensively by academics. The bottom line that emerges from this literature is that the quality of medical care delivered at the Green Houses is at least as good as what’s available at traditional nursing homes, but the quality of life for residents is much better. For example, a differences-in-differences study using matching to try to minimize the effects of selection bias found that Green House homes had lower hospital readmission rates and saw statistically significant reductions in the percentage of patients who were bedridden, catheterized, or suffering from pressure ulcers.Footnote ³¹ Other indicators of medical quality were not significantly superior among the Green House residents.

It’s with respect to measures of life satisfaction and patient autonomy that the Green House homes really shine.Footnote ³² Researchers have found marked differences in terms of satisfaction and overall emotional well-being, with residents’ and their relatives’ sense of their privacy, autonomy, and the physical environment at Green Houses rating significantly better than the traditional nursing home baseline.Footnote ³³ The literature also suggests that turnover and absenteeism among staff are noticeably reduced compared to traditional nursing facilities.Footnote ³⁴ Workers got to know residents better, and better continuity of care emerged, such that they had an easier time noticing changes in residents’ health status quickly.Footnote ³⁵ The private sleeping-quarters aspect of Green Houses is also a major selling point – surveys indicate that seniors prefer private bedrooms by a margin of twenty to one because these accommodations give seniors more privacy and control.Footnote ³⁶

The best evidence seems to indicate that Green Houses cost roughly the same to operate as traditional nursing homes, or perhaps a bit more. A 2016 study found that the average private-pay monthly cost of a Green House residence was 5 percent higher than the cost for a traditional nursing home.Footnote ³⁷ Another study found that the operating expenses of Green House homes were approximately 7.6 percent higher than the national average, putting the homes in the sixtieth percentile for spending among nationwide nursing homes.Footnote ³⁸ At the same time, there is evidence from an underpowered study indicating that Green Houses are associated with a decline in Medicare expenses of up to 30 percent, apparently because of decreased hospitalizations and transfers to skilled nursing facilities among Green House residents.Footnote ³⁹

Construction costs are likely to be significantly higher for Green House homes, though how much is difficult to estimate, with much of the differential driven by the fact that Green Houses allot more square footage to the average resident than traditional nursing homes with shared bedrooms.Footnote ⁴⁰ The available evidence suggests that occupancy rates in Green House homes are much higher than in traditional nursing homes, which may offset the higher upfront capital costs.Footnote ⁴¹ Taken together, then, the data make it uncertain whether the total monetary costs to society associated with Green Houses will be higher than those associated with traditional nursing homes. It is more plausible that they entail somewhat higher costs, but also conceivable that there is no meaningful difference.Footnote ⁴²

The Green House nursing home differs in one other respect from the traditional nursing home, and the difference looms large from a housing policy perspective. Green Houses are designed to have the profile of a large single-family home, and they can fit nicely into low-density residential neighborhoods. Their relatively small staff footprints also suggest that they could be situated in single-family neighborhoods without creating significant scarcity of street parking spots. As a result, there should be little principled opposition to efforts to zone them in any residential neighborhood where single-family homes predominate. To be sure, zoning opposition to projects in neighborhoods is often unprincipled, and some opposition to the siting of nursing homes and hospices in residential areas may reflect a perverse desire to keep aging and death out of sight, and therefore out of mind.Footnote ⁴³

Because the disabled are a protected class under the Fair Housing Act and many nursing home residents qualify as disabled, Green House developers should be in a strong position to challenge the denial of necessary zoning approvals under the Fair Housing Act.Footnote ⁴⁴ Though judicial interpretations of existing law make it rather clear that a Green House can be built in most areas that are zoned single-family residential only,Footnote ⁴⁵ Congress may wish to consider further amendments to strengthen the Fair Housing Act in a way that makes it crystal-clear that a municipality’s refusal to treat small-scale nursing homes on equal terms with similarly sized single-family homes is unlawful.

22.2 Accessory Dwelling Units

It turns out that the desire for continuity as people age is part of a broader phenomenon. At least in the US, older Americans strongly prefer to live in smaller versions of the single-family homes they lived in when they were younger. Thus, as the percentage of residents who are elderly in a community increases, demand for (and prices of) small, single-family homes tends to increase.Footnote ⁴⁶ Older empty nesters and young families wind up competing for the same “starter” homes.

The preference for American seniors to “age in place” as much as possible is equally powerful.Footnote ⁴⁷ Fully 83 percent of senior citizens agreed in a national survey that they wanted to remain in their current homes for as long as possible, and the overwhelming majority of these seniors agreed strongly with the sentiment.Footnote ⁴⁸ Most seniors find the prospect of moving to nursing homes distasteful.Footnote ⁴⁹ Senior citizens are especially likely to be tied to the community in which they live and the neighbors and relatives who surround them, making moves less desirable and less advantageous for the elderly than they are for younger citizens.Footnote ⁵⁰ For seniors who are attached to their homes, that attachment represents a substantial component of their psychological well-being.Footnote ⁵¹

While the community they’ve long resided in will have significant appeal, the house they’ve long called home might not be suited to the needs of elderly empty nesters. The home may have staircases that are difficult or dangerous to navigate for elderly residents whose mobility is impaired and who are at a greater risk of broken hips and other debilitating injuries. The home may be too large and expensive to maintain. New construction that is built for someone with impaired mobility and is right-sized for an elderly individual or couple will be ideal, but those sorts of dwellings are in rather short supply, especially in neighborhoods occupied largely by single-family homes.

Enter the ADU. ADUs are small houses built within the footprint of an existing parcel that already contains a single-family home. Some ADUs are apartments built over existing garages (i.e., coach houses). Others are new “tiny houses” built from scratch in backyards that resemble ground-floor studio apartments. Either kind of unit might provide great utility to a senior citizen who wishes to remain in place. An apartment built on top of a detached garage might be an ideal space for a caregiver to reside if an elderly resident wishes to remain in an existing single-family residence. And a ground floor unit might permit an elderly resident to stay in a beloved neighborhood while vacating the main house in favor of either a relative who can provide care and companionship, or a tenant who can supplement the senior’s income.

Embracing ADUs is an important pillar of affordable and inclusive housing policy. Surveys of owners who have built ADUs in the Seattle area find that Black and Latino households are more likely than nonminority households to construct ADUs, and that these units are particularly likely to be built in middle-income communities.Footnote ⁵² The same study found that ADUs were especially common in those neighborhoods with a higher concentration of senior citizens. A separate study of ADUs in three high-cost cities on the west coast (Portland, Seattle, and Vancouver, BC) found that the average construction cost of ADUs was $156,000, putting them well within the reach of many seniors looking to downsize or supplement their income.Footnote ⁵³ Fifty-seven percent of households living in ADUs consisted of one person, and another 36 percent comprised two people.Footnote ⁵⁴ Approximately 28 percent of all American senior citizens currently live alone.Footnote ⁵⁵

There is circumstantial evidence consistent with the idea that those seniors who live near their children but not under the same roof benefit from that proximity. As Margaret Brinig has pointed out, senior citizens who live within eight minutes of the home of one of their children are among the seniors with the lowest mortality risks and the most satisfied mental states, but senior citizens who live in the same household as their adult children face high mortality risks and suffer from diminished mental states.Footnote ⁵⁶ Obviously selection effects necessitate caveats – the elderly may need to cohabit with their children when their health declines or when a child’s financial resources disappear, and both dynamics along with the inherent stress of adults merging households and losing privacy will correspond with declines in the quality of life for seniors.

Zoning laws are the main obstacle to the desirable arrangement whereby seniors live near, but not with, their children and grandchildren. The US generally zones for homogeneity, at least within neighborhoods. Not only are many residential neighborhoods uniformly so, but the quality and cost of housing is often uniform as well. For an elderly person with adult children and minor grandchildren living in a neighborhood of single-family homes, residential units that are right-sized for a single elderly person may be hard to find, or even nonexistent. And because of their lack of density, these neighborhoods are often not well served by transit options. So when elderly seniors who can no longer drive safely need to get around, they may be entirely dependent on relatives, or taxis and ride-sharing services if they are available. High-density neighborhoods also saw lower COVID-19 mortality rates during the pandemic, in part because they tend to have a higher-quality and more accessible medical infrastructure.Footnote ⁵⁷

If ADUs are desirable for seniors who wish to age in place but find a lack of other options in their beloved neighborhoods as their needs change, what is stopping them from being built? The answer is generally local land-use laws, though financing restrictions also play a role.Footnote ⁵⁸ When researchers surveyed homeowners who had built ADUs, problems with the permitting process were the commonly identified causes of unanticipated delays and cost increases, and about one in every five survey respondents reported initially having their permit applications rejected.Footnote ⁵⁹ The perceived hassle of obtaining the necessary permits emerged in interviews with landowners who had not constructed ADUs in other research as well.Footnote ⁶⁰

The legal scholarship bears out the difficulties for governments that wish to promote ADUs. In 2002, California enacted statewide legislation to require municipalities to permit the construction of ADUs in neighborhoods that were zoned single-family residential, but many local governments responded with regimes that de facto made ADUs extremely difficult to build.Footnote ⁶¹ The political economy behind these efforts and the resistance is interesting. The politically potent AARP strongly supported the statewide legislation and used its considerable clout in Sacramento to get the legislation enacted, forming a coalition with progressive advocates of affordable housing.Footnote ⁶² But at the local level, real estate developers, construction unions, and homeowners interested in maximizing their property values and maintaining the character of their communities became powerful obstacles blocking reform.

Even when statewide laws make it easier to construct ADUs, cities can thwart those policies by refusing to relax parking space requirements, insisting that ADU builders obtain conditional use permits, or requiring that ADUs be owner-occupied, though California’s legislation thwarts several of these strategies.Footnote ⁶³ Other communities, notably including Los Angeles, enacted ordinances that have facilitated the growth of ADUs and prompted their construction across wider swaths of the city, including in more affluent neighborhoods.Footnote ⁶⁴ Nonetheless, ADUs remain more common in parts of Los Angeles that are close to light-rail stops, schools, and commercial districts, as well as neighborhoods with large Latino populations. They are observed less frequently in parts of Los Angeles where large numbers of high-income residents live as well as in parts of the city where most of the residents are Black.Footnote ⁶⁵ Policy decisions thus play a large role in determining whether ADUs become a viable tool for increasing housing supply and affordability, promoting dense development, and satisfying seniors’ preferences to age in place.

To overcome local intransigence in cities and towns that have tried to keep ADUs out, more aggressive reforms will be necessary at the state level. Christopher Elmendorf has identified approaches to housing affordability in his other work that may be well adapted to the problem of ADUs.Footnote ⁶⁶ Elmendorf envisions a series of steps whereby states create targets for localities to increase the housing supply; real estate developers and third-party interest groups gain new rights to sue localities that block applications for permits that would increase supply; and the state adds in financial penalties for localities that fail to increase the availability of housing over a predetermined number of years. These kinds of reforms could work well to promote the growth of ADUs. They have the advantage of altering the incentive structure for local governments from “how do we say no to these developments?” to “how do we get more approvals for these developments?” To comply with state mandates, local officials might even need to take steps to encourage single-family homeowners to consider construction of ADUs, which could help to overcome a major obstacle to their construction – which is residents’ ignorance about the opportunity to build them.Footnote ⁶⁷ Policymakers could also incentivize homeowners to build ADUs to help care for elders in their communities. For example, with proper supervision and regulation, single-family homeowners might become on-site caregivers for elderly residents of adjacent ADUs. In that way the homeowner could receive a stable source of income as both a landlord and a part-time caregiver, and the elderly resident would have assistance and companionship close at hand in the event of any emergencies.

To be sure, housing policy is only one important part of the necessary societal changes. Prior to the pandemic, advocates for the elderly pushed to increase the funding and availability for home-care services through Medicare, Medicaid, and perhaps nationalized long-term care insurance. Ways to improve further the prospects of seniors who want to age in place include increasing the availability of high-quality in-home caregivers and investing in highly skilled home-based primary care programs. Increasing the appropriate housing supply through ADUs is a necessary but not sufficient measure to facilitate that goal.

22.3 Conclusion

People change as they age, but the stability of their housing preferences is rather remarkable. The elderly generally wish to remain in their long-time homes for as long as they possibly can, and when that option is no longer feasible, many of them desire a nursing care facility that will preserve the normality and privacy that characterized their earlier years. Despite the consumerist culture of the US, the market provides fewer options for late-in-life residential living than for any other life stage, and the options that the market does provide are mostly institutionalized and unappealing to large segments of the elderly population. Consider the heterogeneity of housing options available to a forty-five-year-old American. It is not obvious that the option set available to that person’s parent, who is thirty years older, should be so much more restricted. Yet because the elderly are often paying indirectly for long-term care, through insurance or government entitlements, and because local laws substantially constrain the supply of housing, there is a mismatch between what seniors want (and arguably need) and what they get.

The COVID-19 pandemic may hasten a trend that was already underway, which is that many Americans wish to age in small housing units located within the neighborhoods they’ve grown attached to, or nursing homes that feel at least a little bit like home. To date, the nation has done a poor job of making these kinds of options broadly available to the elderly, and misguided land-use policies seem to be one major reason why. The pandemic underscores that some of the selling points of these housing arrangements are not merely matters of consumer preference but can be issues of life and death as well. COVID-19 may be the worst infectious disease of our lifetimes, but it will not be the last. As Americans begin living into their nineties and hundreds with increasing frequency, much of the existing resistance to the changes we anticipate here eventually will be overcome. Building the right housing now is an essential strategy to minimize the dislocation and anxiety that will occur when tens of millions of aging people discover that so many of their choices are unpalatable.