Erica Smith Ewing 0:00

What we suspect the real reason is, is that they want to keep low income people out of a neighborhood, which is very upsetting and very unconstitutional. In fact, people come out to the city at the town hall meetings and said, "We don't want riffraff in our neighborhood."

Ethan Waldman 0:17

Welcome to the Tiny House Lifestyle Podcast, the show where you learn how to plan, build and live the tiny lifestyle. I'm your host, Ethan Waldman, and this is episode 192 with Erica Smith Ewing. Erica Smith Ewing is a senior attorney with the Institute for Justice. And she is leading a lawsuit against a town in Georgia that is preventing somebody from building tiny houses solely based on a minimum square foot requirement. And according to Ewing and the Institute for Justice, this is a violation of the Georgia constitution. I've been fascinated by stories of people and groups striking down restrictive Tiny House laws based on the constitutionality of land use and size restrictions. And in this conversation, Erica will really shed light on her thinking behind the case, why she thinks that they are going to prevail, and makes a call to our listeners for anybody who may be experiencing restrictions on building a tiny house to potentially get in touch and see if there might be a legal case or a legal basis for going to court. So I hope you stick around. This is a fascinating conversation with Erica Smith Ewing.

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Alright, I am here with Erica Smith Ewing. Erica is a senior attorney with the Institute for Justice. The Institute for Justice is a national nonprofit organization that fights to protect individual rights from government abuse. Erica joined the Institute in August 2011. And Her work focuses on economic liberty, educational choice, free speech and property rights. Erica Smith Ewing, welcome to the show.

Erica Smith Ewing 3:15

Thanks for having me.

Ethan Waldman 3:17

You're very welcome. Thanks for being here. So I suppose for those listeners who don't quite understand why I would be interviewing a senior attorney with the Institute for Justice, can you tell us about Cindy Tucker and the case that you're currently that you filed?

Erica Smith Ewing 3:39

Sure, happy to. So Cindy Tucker is the head of a nonprofit group called Tiny House Hand Up in a small town called Calhoun, Georgia. And Cindy had this fantastic idea, which to bring more affordable housing to her town. Her town is very, very poor. There's a lot of people who are working full time they can't afford houses, they can't even afford apartment, there's a serious shortage of all types of affordable housing. And her idea was, well, what if we were to build tiny homes for people and because they cost less bto build, they would cost less to buy. And maybe that can help people finally get a home and start building wealth and escape the cycle of poverty. So lots of people in the community were on board. But the city told her no way. And the reason they gave her was something we're increasingly seeing across the country. And that's the town has a minimum square footage requirement. That means if you want to build any house in this town, it has to be at least 1150 square feet, which is a fair size out. And in fact, in some parts of the town you can't even build a house unless it's 1800 square feet, which is huge. So Cindy, she tried to fight back. She tried to get an exception from the rules. Tried this for years, and just kept telling her No, no, no. So we sued. And we said that this minimum square footage requirement is unconstitutional and it violates Cindy's property rights. She has 8 acres of land that she owns free and clear. She wants to be able to build tiny homes on this piece of land, and they're not letting her since is absolutely a violation of her property rights.

Ethan Waldman 5:22

Awesome. So in the I guess it's the press page or the just the page about the case. It says that Georgia's Constitution requires zoning laws to be substantially related to public health, safety, morality, or general welfare. Do you anticipate like what do you anticipate the opposition to argue in this one?

Erica Smith Ewing 5:46

It's hard to say. I think what they're going to say is, is what they have been saying in city hall meetings in the past. And that's this idea that they need to ban homes to protect the aesthetics of their neighborhood. And that if people build small homes, that will actually lower property values, which is ridiculous, because the homes that she wants to build are beautiful. They look just like ordinary homes, except they're a little smaller. And in fact, Cindy, would have been able to build as a right, an oil refinery, a truck terminal, metal scrap yard on this same piece of land, and they would have been okay with that. But they're just not okay with tiny homes. And what we suspect the real reason is, is that they want to keep low income people out of a neighborhood, which is very upsetting and very unconstitutional. In fact, people have come out to the city, the town hall meetings and said, "We don't want riffraff in our neighborhood. " Which is it's so discriminatory, and you can't have city policy designed to pick and choose who's allowed to live in what neighborhoods?

Ethan Waldman 6:55

Right, right. Unfortunately, they it probably has for a long time.

Erica Smith Ewing 7:00

We just haven't caught them yet. But now we've caught them red-handed.

Ethan Waldman 7:02

Yeah, it seems it seems pretty like cut and dry. That that it does violate the Georgia constitution based on on what you've what you've laid out.

Erica Smith Ewing 7:13

I think so. Because usually you have zoning laws that are able to pass constitutional muster, because they have some sort of health and safety justification. But there's nothing about making a home smaller that makes it less safe. People have been living in tiny homes, small homes, for generations.

Ethan Waldman 7:32

Right.

Erica Smith Ewing 7:33

People in in this in this town are still living in small homes that were built before this ban. So this has nothing to do with protecting the public. It's just it has to do with keeping people out and arbitrarily abridging property rights.

Ethan Waldman 7:46

Yeah. So before we started rolling you, you mentioned that you've been kind of looking for a tiny house case for a while. Can you? Can you talk about why you're interested in that?

Erica Smith Ewing 7:57

Yeah. I mean, as you know, very well, Ethan, this is something that people want to be able to do now. And it's hard, it's hard to find a place to legally put your, your tiny home, or even a small home. And we've been noticing that you do have some towns that are doing the right thing and making it easier for tiny homes to come in. But on the other side of the spectrum, a lot of places are passing new laws, keep them out. And we keep seeing these minimum square footage requirements. I was just talking to this woman in another state who's trying to fight an 1800 square foot minimum, which is insane. Like why should people be forced to live in a house bigger than what they want, what they need, what they can afford? People want to downsize, they want to have some more simplicity in their lives. If they want to live in a smaller home, and that home is an attractive home, why why not let them?

Ethan Waldman 8:50

Right. Right. So I wanted to ask about the potential kind of repercussions for this if if you are to succeed. I know that when like, for example, the Supreme Court makes a ruling about something other cases that are similar in in state courts kind of they get decided whichever way the supreme court went, because it's kind of like they've set a precedent. Would this case that a precedent for other states that have similar constitutions?

Erica Smith Ewing 9:22

That's an excellent question. So it wouldn't be binding precedent, but it would be what's considered very persuasive precedent.

Ethan Waldman 9:30

Okay.

Erica Smith Ewing 9:30

So we could fight this case or some another lawyer fight this case, if we win it in another state. And that Judge will be like, "Oh, like this is pretty persuasive." Especially because there are not a lot of cases on point. So having one case on point is, other judges will definitely be looking to it. And of course, it would be binding precedent in Georgia if we were able to get this up to the Georgia Supreme Court and it would be able to protect the rights of thousands of people. And it would also help, not just people who want to live in small homes, but other people who are struggling with arbitrary zoning laws that affect other things.

Ethan Waldman 10:07

Right.

Erica Smith Ewing 10:08

We've had to bring lawsuits about, you would not believe some of those zoning laws we've had to bring lawsuits against recently. There was an ordinance that prevented people from having front yard vegetable gardens.

Ethan Waldman 10:22

Wow.

Erica Smith Ewing 10:22

We had to do about that this sweet elderly couple was forced to dig up their vegetable garden that they had used for, for years. We keep things zoning laws that are banning home-based businesses that again, people have had for generations, and now in light of the pandemic people need and want to have be able to work from home.

Ethan Waldman 10:41

Yeah.

Erica Smith Ewing 10:42

Zoning ordinances that ban people from having mismatched curtains and are aggressively enforced.

Ethan Waldman 10:49

Wow.

Erica Smith Ewing 10:49

So we are seeing a lot of zoning overreach in this country. And we are determined to keep fighting it. And if we win this case, it will be one it is one step closer to that goal.

Ethan Waldman 11:00

Wow. Yeah, I've also I've heard about towns and HOAs that don't allow vegetable gardens. I've also heard places that don't allow like drying laundry on on clotheslines, that kind of thing.

Erica Smith Ewing 11:15

Yep. It's every day more laws are passed that try to dictate every detail of our lives.

Ethan Waldman 11:22

Yeah.

Erica Smith Ewing 11:23

And that's not the purpose of government. That's, that's not what they're supposed to do. It's an invasion of privacy, invasion, property rights and basic liberties. So we will keep finding it.

Ethan Waldman 11:35

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And forgive me if this is a stupid question. But if the rule is created by like a homeowners association or a non government, non governmental body, can it be, can it be fought in the same way? Like if I owned a property in a in a in a place that had an HOA that required 1000 square foot minimum, would this affect that? Or is that a kind of a different thing?

Erica Smith Ewing 13:45

Probably not. That's usually a different thing. It's a great question. Like constitutions, for instance, generally apply to the government or restrict the government from doing something. And the thinking is like at least with an HOA you had some decision about whether or not to live in a place with an HOA. So you had some choice in the matter,

Ethan Waldman 14:04

Right.

Erica Smith Ewing 14:05

But, but we do hope that the more publicity that these types of issues get, and maybe Hoa is will be discouraged from passing these laws. Because they'll realize that like, "Hey, these are having a real effect on on real people. Maybe we shouldn't do this."

Ethan Waldman 14:20

Right, right. Does this - I'm assuming that the tiny houses that that Cindy wants to build are stationary, they're on foundations, right?

Erica Smith Ewing 14:30

Yes, they otherwise comply with every aspect of the building code. And they're actually not even technically considered tiny because they're 540 square feet to 600 square feet. So a little bigger than typically considered a tiny home.

Ethan Waldman 14:44

Yeah.

Erica Smith Ewing 14:45

Although she, although she would like to do truly tiny homes if she could.

Ethan Waldman 14:49

Right.

Erica Smith Ewing 14:50

But she would be happy with - In fact, she would have, at one point she tried to just do 800 square feet and they still told her no

Ethan Waldman 14:56

Wow.

Erica Smith Ewing 14:57

Yeah. So it's, it is It is such a shame and but we're really glad that Cindy is someone who's willing to stand up and fight back.

Ethan Waldman 15:06

Yeah, absolutely. That's awesome that she she's willing to do it.

Erica Smith Ewing 15:10

Yeah, put herself in the spotlight like that.

Ethan Waldman 15:14

Yeah. And well, she's, he's a very, he's a great representative to be in the spotlight because she's, you know, she doesn't look like you know, when you, when you hear about a developer that wants to do something, a lot of us think about some like slick businessman who's like, trying to make a huge profit, like turning some piece of property into a bunch of condos.

Erica Smith Ewing 15:36

Now, it's so true. Cindy is one of the most genuine people that I have ever met. She believes in this cause, she's been fighting for this cause. And she just really, truly wants to help the people in her community who really need her help.

Ethan Waldman 15:53

Yeah,

Erica Smith Ewing 15:53

and want her. She actually has a drawer full of applications for these volumes of people saying like, please, please give me one of these homes.

Ethan Waldman 16:01

Yeah,

Erica Smith Ewing 16:01

And she can't.

Ethan Waldman 16:02

Right. And she's, you know, she's building these homes, and she wants them to be affordable. But she's not like doing any... It's not like a nonprofit that's giving away the homes or subsidizing the cost of them. It's just she wants to build smaller homes that are therefore less expensive.

Erica Smith Ewing 16:19

Yeah, that's exactly right. And she even has a mortgage company that's willing to provide mortgages for these homes. And if she's able to go through with this, these homes would cost under $100,000 in the $60,000 to $90,000 range, which is much, much more affordable than most homes in America.

Ethan Waldman 16:38

Yeah.

Erica Smith Ewing 16:39

And these folks would get a mortgage, they this would be an investment for them, they able to be able to build wealth. But if she has to comply with this minimum square footage requirement, these homes are going to be like, well over $100,000. They're going to be more like $180,000. And people are not going to be able to afford that in this town.

Ethan Waldman 16:57

Right. Are there any I know where where I've looked for land for my tiny house, not that it would apply to me. But there are rules about the density of houses? So like, Okay, you have three acre zoning. So even if you own, you know, 20 acres, that's not divisible by three, you own 12 acres, you can put four houses on it, because you can't go smaller than three acres. Does this case, you know, are they trying to stop her based on the density at all? Is that?

Erica Smith Ewing 17:30

Oh, no, you only where she wants to build a lot is totally fine if it's at least a quarter acre. And we have and she has 8 acres. So that's more than enough for what she needs. In fact, the town has said, "If you want to build on less than a quarter acre, that's okay, too." So the only justification that the town has given her is the minimum square footage requirements.

Ethan Waldman 17:51

Right.

Erica Smith Ewing 17:51

I will say, though, that the constitutionality of density requirements is certainly questionable. Saying that somebody can't build unless you have a minimum square foot, minimum lot size of three acres.

Ethan Waldman 18:03

Yeah.

Erica Smith Ewing 18:04

Is really, is that really necessary? You know, so I would not be surprised if we see more challenges to the restrictions like that in the future.

Ethan Waldman 18:12

The zoning restrictions. Yeah, and I think people are starting to, well certain people, certain populations are waking up to the reality that zoning has been used to exclude certain races, certain classes, for a long time, or it's the people who were excluded, knew, but everyone else is kind of waking up to this reality.

Erica Smith Ewing 18:33

That's absolutely right. And now, everybody is suffering across the board, because zoning is a big reason that housing is so so expensive. Right now, this country is in a crisis when it comes to affordable housing. And there are a lot of towns doing the right thing and saying, "You know what, let's let's back off. Let's make it easier for people to build."

Ethan Waldman 18:54

Yeah,

Erica Smith Ewing 18:54

But other towns are going the exact opposite way. Is it? Let's make it harder.

Ethan Waldman 18:59

Let's make it more expensive. Right. Right. Kind of protect, protect our own. Yeah. Yeah. So how long does a process like this take?

Erica Smith Ewing 19:11

It could take anywhere from a couple of weeks to years, right. Sometimes we bring these lawsuits, and the government will fold right away. They'll say, "You know what, you're right. This is probably unconstitutional, we're probably going to lose." And they just give up.

Ethan Waldman 19:26

Right.

Erica Smith Ewing 19:27

And they change the law. And that's great. Other times we take it all the way up to the state Supreme Court, US Supreme Court. We've had about 10 cases of the US Supreme Court now. So this could this could take a while. I'm hoping that it is resolved relatively quickly, so that you can get this project going and get her project underway.

Ethan Waldman 19:47

Yeah.

Erica Smith Ewing 19:48

But we're out we'll fight it for however long.

Ethan Waldman 19:50

Yeah. Has Calhoun they responded to the case?

Erica Smith Ewing 19:56

They haven't, which is a little unusual. Because I did send them an email. And sometimes you see that. Sometimes the government just does nothing until you're in front of the judge. So we haven't heard a peep out of them.

Ethan Waldman 20:11

Yeah. Have you heard from? Have you gotten support or heard from any unexpected, unexpected places for this one?

Erica Smith Ewing 20:20

Oh, um, we have gotten some support in unexpected places. And they are just like, you know, people just reaching out like, "Hey, I found your email. That's great what you guys are doing." Lots of people commenting on Facebook, at Georgia Public Radio, which is the local NPR, is doing an exclusive on the case.

Ethan Waldman 20:38

Wow.

Erica Smith Ewing 20:39

And I'm hoping that this case, it's more attention as we go forward, just because this is a national issue. And there are other towns with these exact same restrictions.

Ethan Waldman 20:49

Yeah.

Erica Smith Ewing 20:49

So I'm really hoping that this case, can have a good impact just across the nation.

Ethan Waldman 20:55

Nice. You you touched on them briefly. But I'd love to expand a little bit like what are some other ways that zoning regulations encroach on people's property rights as you as you see them?

Erica Smith Ewing 21:09

Oh, gosh, well, the big one that I've been fighting recently, are laws that prevent people from having home-based businesses, I saw, I saw a town recently that had been requiring permits for people to just have a home office, you see lots of towns to ban people from selling bread and cupcakes out of their home. Or they require them to go through a three month permitting process to get to have a simple home business like that. And this is a major, major infringement on people's rights. And a lot of times people who want to have home-based businesses, they need to have the home-based businesses because they're single mom, they're a full time caregiver, maybe to an elderly parent, or they're, or they're trying to just make money on the side when they're working full time during the day. So they're trying to work at night. And these some of these people really need the money. And when you have a town that is just putting every barrier they can think of just from just to prevent you from selling cupcakes to your neighbors, and it's terrible. And these are businesses that people have in this country for generations. And the government is making it so hard for people to earn a living. And, and you try to talk to them before you see them, you try to kind of diplomatically resolve the issue. And it's like they're not even on the same page. They start citing dozens and dozens and dozens and dozens of obscure restrictions in these multiple, like hundreds of hundreds of pages of zoning codes. And they don't understand that their job is to serve the people and to serve their citizens, and that they're crushing them and crushing their dreams. So I think that's something that's gotten better during the pandemic, but it really has a long way to go.

Ethan Waldman 23:00

Yeah, absolutely. And that's, I didn't realize that there were rules that were preventing people from doing home-based businesses. That's wild.

Erica Smith Ewing 23:09

Yeah. And we've had a few lawsuits about that, too. It is wild.

Ethan Waldman 23:13

Yeah. So Institute for Justice is is a nonprofit, right?

Erica Smith Ewing 23:19

Yeah, we are a nonprofit. We've been around for over 30 years.

Ethan Waldman 23:22

Okay.

Erica Smith Ewing 23:23

We are funded entirely by the generosity of our donors.

Ethan Waldman 23:26

Okay.

Erica Smith Ewing 23:27

I'm very fortunate that I'm able to this is my dream job. I couldn't imagine being a lawyer anywhere else. And I'm able to sue the government and fight for individual rights. It's actually very therapeutic to sue the government.

Ethan Waldman 23:42

I'm sure.

Erica Smith Ewing 23:43

Yeah, it's a great job. And we're hiring all the time. So if there's any lawyers out there who want to join our ranks, please check us out.

Ethan Waldman 23:52

Nice. So are you are all of your cases against the government? Are there times that you that you're not suing the government?

Erica Smith Ewing 23:59

All of our cases are against the government, but we don't just do litigation. We do a lot of legislation.

Ethan Waldman 24:05

Okay,

Erica Smith Ewing 24:06

including me. I've I one of the things I worked on is food freedom laws, making it easier for people to buy and sell the food that they want. We've gotten, we've changed the laws in about 18 states to make them give them more food freedom, just the last three years. We have a strategic research team, which does a lot of research. We're able to cite in our briefs also peer reviewed research has been cited by the US Supreme Court. We have we do a lot of stuff we do op eds opinion pieces on paper, like anything we can to just move the ball, move the needle and get people more freedom.

Ethan Waldman 24:43

Got it. Yeah. It's it's always interesting because freedom is a concept that can be used to wheel, it can be wielded to encroach on someone else's freedom, like my freedom to do this, you know, encroaches on your freedom to do that. I don't know if this is a question, but it's just just an observation.

Erica Smith Ewing 25:05

No, it's a, it's a great point. I think a lot of us here at IJ are philosophically Libertarian. And we believe that our, our right, and where somebody else's begins, and and you can't infringe your own rights by hurting somebody else. And so we are very, very careful in the cases that we push for the causes that we adopt. And one thing that we're very good at is picking cases and causes that are kind of sympathetic to the average person that like, on average, hears about a car case, like on a common sense level, they think, "Oh, that's crazy." Or like, "Of course, someone should do that." And because that's how, because judges are people, too. And if the public thinks something is compelling, the odds are, the judge will as well. And judges are people like anybody else. And they are motivated, in part by trying to do the right thing trying to help people. And when they see the government, bullying people, they want to help that person. I think we're very, very good about picking what to fight for.

Ethan Waldman 26:12

So if there are any listeners out there who are facing similar restrictions from their town around zoning and tiny houses, is that something that you would want to hear from people about?

Erica Smith Ewing 26:26

Oh, absolutely, absolutely. You can tell if you think that your rights are being violated, or you may need our help, you can go to our website, there's a form you can fill out if you have a potential case, you could also email me directly. My email is esmith@ij.org. And we would be very interested in hearing from you. There's no guarantee that we can help. But there's a couple of cases we're very interested in bringing right now related to tiny homes. One is more cases like this one where there's a minimum square footage requirement. And that's the only thing that's preventing you from having your your home, it gets harder to to bring a legal challenge if the government is citing seven or eight different reasons why your tiny home can exist. But if it's just like a one claim reason that makes it easier for us to challenge.

Ethan Waldman 27:18

Okay.

Erica Smith Ewing 27:19

The other thing we are interested in challenging is situations where you have a tiny home, whether it's on a foundation or on wheels, and the government won't let you have it, even if you want to put it in a very remote rural location. So let's say you have 10 acres, your tiny home would be somewhere where nobody can even see it, the neighbors can't even see it. And they're still preventing you from doing that. We're very interested in trying to bring a case like that.

Ethan Waldman 27:48

Okay.

Erica Smith Ewing 27:49

So if you have, if you're in a situation like that, or if you know somebody who is, you know, don't hesitate to reach out.

Ethan Waldman 27:56

Awesome. And is that would that be also a zoning based case for the the idea of a tiny house in the middle of nowhere?

Erica Smith Ewing 28:03

Yeah, yes, those are, those are usually zoning restrictions that prevent you from from doing that.

Ethan Waldman 28:09

Erica Smith Ewing, thank you so much for being a guest on the show today. It was great to talk with you.

Erica Smith Ewing 28:14

Thanks for having me, Ethan.

Ethan Waldman 28:16

Thank you so much to Erica Smith Ewing for being a guest on the show today. You can find the show notes, including links to information about the lawsuit, a video about it, and more at thetinyhouse.net/192. Again, that's thetinyhouse.net/192. Well, that's all for this week. I'm your host, Ethan Waldman, and I'll be back next week with another episode of the Tiny House Lifestyle Podcast.

Transcribed by https://otter.ai