In 1966, the United Nations General Assembly recognized a person’s right to an “adequate standard of living,” encompassing the right to adequate housing.[1] Housing availability, however, remains a pressing issue globally, and the framework of land use laws plays a significant role in how countries address this challenge.[2] Japan employs a nationally regulated land use system that values public interests in land as superior to private[3], while the United States relies on a local governance model that prioritizes private ownership rights.[4] This article will briefly discuss each countries’ land use system and its implications on housing availability and housing conditions.
Japan’s land use system is characterized by its centralized structure, with national regulations guiding development.[5] This centralized approach ensures uniformity and consistency across the country, which is crucial where land is scarce.[6] Two predominate land use laws guiding this system are the Fundamental Land Law (FLL) and National Land-Use Planning Law. The FLL sets out four important land-use principles, two of which will be discussed here: (1) public interests in land are superior to private interests; and (2) speculative investments in land shall be restrained.[7] While Japan’s Constitution states a “right to own property…is inviolable,” scholars have suggested the FLL limits the right to own real property.[8] The second principle, which restricts speculative investments, reduces the chances of owning property solely for investment purposes.[9] Together, the FLL principles reinforce a strong regulatory philosophy of controlling land prices and ownership for the purported public good.[10] This idea was reinforced by the National Land-Use Planning Law in 1974, as it was enacted to curb rising land prices.[11] It did so by subjecting land transfers to an approval or notification process that the government oversaw.[12] Under this law, local governments are not required to give reasons for their decisions.[13]
While many factors have contributed to Japan’s housing market today, the FLL and the Land Use Law laid a foundation for the housing availability and conditions we see today. Two significantly positive results of these laws are that Japan’s housing prices have flatlined[14] and the current housing supply exceeds housing demand.[15] The downside of Japan’s public interest system is that private housing conditions and local nuances are often overlooked in favor of national priorities. For instance, even though there are more houses available than needed, many people are still dissatisfied with their living conditions, one survey finding nearly 40% of Japan’s residents are unhappy with their homes, mainly due to a lack of space.[16] Further, over half of the nation’s households fall below the average housing standards, as set forth by the national government.[17] Scholars argue that housing policy is often secondary to industrial and agricultural development, leading to national priorities consistently taking precedence over private housing interests.[18]
Notably, official land use laws, like the one’s addressed above, are rare in the U.S., with the Japanese government enacting far more land use laws than found in any one U.S. state.[19] Also unlike Japan, the United States operates under a land use system where local governments wield significant power. This authority was first granted to local governments in the case of Village of Euclid v. Ambler Realty Co.[20] The U.S. Supreme Court justified the burden that zoning places on private property rights by stating it was authorized under the state’s police power.[21] Zoning limitations were thus appropriate where it related to protecting “public health safety, morals, or general welfare.”[22] While Euclid limited the private property rights, American law continues to give such rights “an almost-sacred nature.”[23]
A negative of the American system, which affords significant local control, is that it can lead to resistance to development, furthering limiting housing availability. This phenomenon has become so common is has been coined “NIMBY” or the “Not In My Back Yard” movement.[24] This phenomenon inflates housing prices and can further discriminatory housing practices where local leadership consciously or unconsciously excludes certain identity groups.[25] Another downside of delegating power to local governments and individuals is that it can hinder national coordination of land use planning and exacerbate inequities in housing availability.[26] The guard rails against unlawful use of local land use authority are that governments must follow substantive due process and must not act arbitrary or capriciously in their various land use decisions.[27]
Both Japan’s centralized, public-centric model and America’s decentralized, private ownership approach have their strengths and weaknesses. Japan’s approach ensures coordinated development but it can create housing that falls below average standards, while the United States model provides local autonomy and ensures private concerns are addressed, but it can lead to fragmented policies and a local resistance to housing development. Understanding these differences is crucial for policymakers addressing housing challenges. One potential solution is to combine the local autonomy of America’s land-use system and the public interest focus of Japan’s system. This may look like including local communities in the planning process while also encouraging new housing developments. This would help ensure private housing interests are met while working towards a system that recognizes that access to adequate housing is a human right.
[1] G.A. Res. 2200A (XXI), at art. 11 (Dec. 16, 1966).
[2] Addressing Challenges to Affordable Housing in Land Use Law: Recognizing Affordable Housing as a Right, 135 Harv. L. Rev. 1104 (2022).
[3] Byron Shibata, Land-Use Law in the United States and Japan: A Fundamental Overview and Comparative Analysis, 10 Wash. U. J.L. & Pol’y161, 173 (2002).
[4] Steve P. Calandrillo et. al., Making “Smart Growth” Smarter, 83 Geo. Wash. L. Rev. 829, 836 (2015).
[5] Shibata, supra note 3.
[6] Id.
[7] Id.
[8] Id. at 174. The author clarifies that he cannot discern “any clear legal basis” for the FLL’s limitation of real property rights.
[9] Id.
[10] Id.
[11] Id.
[12] Id.
[13] Id.
[14] River Davis, What Housing Crisis? In Japan, Home Prices Stay Flat, Wall St. J. (Apr. 2, 2019).
[15] Jiro Yoshida, Land Scarcity, High Construction Volume, and Distinctive Leases Characterize Japan’s Rental Housing Markets, Brookings Institution (Apr. 20, 2021), https://www.brookings.edu/articles/Japan-rental-housing-markets.
[16] Id.
[17] Id.
[18] Id.
[19] Shibata, supra note 3.
[20] Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 386 (1926).
[21] Id.
[22] Id. at 385.
[23] Calandrillo, supra note 4 at 837.
[24] Addressing Challenges to Affordable Housing, supra note 2.
[25] Id.
[26] Id.
[27] Id.
