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Time for a Left-Right Consensus on Zoning Reform

Zoning is having a moment. Across the country, and across the political spectrum, Americans have begun to pay closer attention to the land-use regulations that shape their neighborhoods. And many are fast discovering that some of their most fundamental values are being antagonized by a persistence of antiquated or imprudent rules.

From a political perspective, this presents a unique opportunity: Bad zoning laws threaten some of the deepest values of both of our major political traditions, so the circumstances are ripe for unusual bedfellows. To understand the overlapping nature of those concerns, consider the effects of bad zoning on some of the key priorities of both the conservative and progressive traditions in American politics.

Old But Not Right?

Few principles are more essential to American conservative politics than a belief that citizens should exercise control over privately-owned property with minimal state interference. Since the Supreme Court’s 1926 Euclid decision, however, courts have upheld an expansive view of the police power over land-use matters. Today, outdated laws shaped by dubious mid-20th century urban planning theories, have prohibited sensible building patterns—like Main Streets, with efficiency apartments above stores, and a wide variety of home-based businesses.

Zoning laws were originally written to address the major nuisances of the industrial era— loud, polluting factories and superblocks of overcrowded tenements. Since World War II, however, their mission has crept further away from these salutary objectives to a point where the state—through municipal governments—can now regulate or prohibit almost any use of private property through a simple ordinance. Not only does this stifle individuality; it prevents people from converting their parcels to the highest and best uses the market will support.

During the postwar era—when suburbs and cars were the way of the future, and cheap, undeveloped land surrounded all our cities—the postwar type of zoning seemed a reasonable trade-off for many conservatives. While it regulated the private land market, it was locally enacted. In addition, its intent was to protect a broad base of individual, private owners.

Today, things have changed. Many of our most prosperous regions have been effectively built-out—few undeveloped lots remain—and laws preserve building patterns from the less populous 1950s and 1960s. This in turn has created an artificial shortage of housing units to which local markets cannot respond. Property owners who could benefit from making more intense use of their parcels find their hands tied by local zoning. Families and individuals are priced out of regions where opportunities are strongest. Personal potential and mobility are limited. And local governments become powerful fiefdoms, selectively approving lucrative projects for (often) politically-connected developers while preventing smaller owners from similarly maximizing returns.

Most on the Right also express a strong preference for decisions made close to home. But to work, a decentralized national power structure requires a critical mass of healthy, vibrant communities. Today, small-town America is in deep economic and cultural crisis. Local wealth is drained away by global corporations, and few incentives draw the talent to replace what is lost. Meanwhile, many of our cities are changing so quickly that people cannot recognize, or afford, the places that were once familiar. In short, our communities are failing to respond to rapid change in a way that transmits essential traditions or even offers a sense of continuity. It is particularly salient that, among the casualties of bad zoning are housing options that would allow people to remain in long-term communities, close to family, friends, and self-help groups; as well as affordable retail spaces in which small businesses could begin to rebuild and retain local wealth.

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Strong social networks, and their intimate connections to local wealth, are among the most important components of local self-reliance. Such dynamics reduce the need for government support and allow a decentralized power structure to flourish. But a status quo that prices people out of long-term communities attenuates the ties that facilitate self-reliance.

On their own, the above-mentioned real estate deficits would be troublesome; but they are made much worse by the fact that the types of real estate they represent—apartment housing and Main Street retail space—would otherwise be the building blocks of traditional town centers. Significantly, the basic arrangement of traditional towns and cities represents a cultural tradition that can be traced down to modern times from classical antiquity. After a centuries-long process of trial and error, traditional urbanism represents the physical imprint of a functioning, Western- or European-style community. Its forms facilitate commerce, law, religious practice, artistic tradition, civic pride, and ultimately a sense of belonging. Our communities can only be vibrant when their moving parts work together; and conservatism can only work with a critical mass of vibrant communities.

Since the 1920s, new communities have mostly failed to develop according to traditional forms. Today, a critical mass of Americans no longer lives in communities shaped by centuries of tradition; instead, they have been displaced to communities built on the technocrat’s zoning model. Not coincidentally, alienation, isolation, and cultural illiteracy are reaching crisis levels. Traditional urbanism is a time-proven, effective method that transmits an understanding of behavioral patterns from one generation to the next. Its loss is a significant break in that link. For those on the Right who are concerned about the erosion of culture and tradition, this really matters.

A Middle Class Left for Dead?

On the Left, the stability of the American middle class has lately resurfaced as an immediate concern. Activists tend to focus on union membership, and the public-sector systems that unions helped establish (e.g., unemployment insurance, good public education, and safety net programs) as the institutional pillars of a broad middle class. There is merit to these claims. But along with the booming economy of the postwar era (which made such programs solvent), a key component of the American middle class was access to affordable homeownership—and the opportunity to obtain an equity position in an increasingly financialized society.

During the middle-class heyday between World War II and the early 1970s, homeownership became the fundamental building block of an economic foothold in the United States. It combined affordable housing (allowing savings and consumer spending) with appreciating equity, which provided a source of collateral. The suburbs were the heart of this phenomenon, but their rapid construction also took pressure off existing urban housing markets. As a result, housing in working-class neighborhoods was also relatively affordable during the period.

By the early 1970s, the barriers to entry were rising. The aggregated impact of zoning laws on the cost of housing in a particular region was observed in New Jersey’s constitutional law cases that came to be known as the Mount Laurel decisions. Initially, the effects of exclusionary zoning were felt by low-income residents, including—perniciously—many working-class African-Americans, who found themselves priced out of the growing suburbs just as the wave of civil rights legislation abolished many of the legal hurdles that had previously kept them out.

Two generations later, an increasingly sizable proportion of middle-class households cannot afford to purchase median-priced homes. This is especially so in the most prosperous parts of the country. Recent statistics show that in the highly regulated land markets of the Northeast and California, affordability is dismal. In Los Angeles, a 2017 study found that just 6.6 percent [3] of local homes were affordable to households at that region’s median income. In 2014, the figure for the five boroughs of New York City was below 9 percent [4]. For those on the Left who want to see a strong middle class, our failure to provide a vibrant market of affordable housing options in affluent regions—and, by extension, an equity position in the market economy—is a serious stumbling block to social mobility.

The specific degree to which zoning-imposed growth restriction has driven the divergence between household incomes and home prices in such regions is a question ripe for multivariate analysis. That it has been a crucial factor is not debatable. And one of the most immediate effects of zoning-based growth restrictions is the displacement of wealth into adjacent, poorer neighborhoods. On a local level, gentrification takes place more rapidly, and more chaotically, than it would if individual neighborhoods—particularly, the most desirable ones—had room to absorb growth under their zoning rules. In good times, this pattern has produced a knock-on effect that disrupts communities throughout entire metropolitan regions: affluent newcomers are displaced to historically middle-class neighborhoods; middle-class newcomers are displaced to historically working-class and poor neighborhoods; and the working-class and poor are either forced to accept crowded living conditions, or to abandon the region entirely.

On the surface, this gentrification pattern has yielded a number of positive effects, including the revitalization of neglected buildings, windfalls for buyers whose purchase preceded the rise in values and a fleeting economic diversity while neighborhoods are in active flux. But on a deeper level, this pattern has also fed antagonism and competition over scarce space in the places where people have—and fear losing—their most intimate ties. It has turned old neighborhoods into floating commodities. And it has had an especially devastating—and largely unreported—impact on a significant population of working-class and poor Americans of the Northeast and California. Over the last generation, many of the working-class residents of places like New York City, San Francisco, and Boston, especially renters and young people, have been forced to choose between tolerating increasingly substandard living conditions in their home communities, and relocating to distant, unfamiliar places.

This phenomenon may also have played a part in a waxing hostility toward immigration. Consider that a major portion of the white working class that once populated the coastal cities of the Northeast and California has been on the losing end of this phenomenon. Many have watched as their old neighborhoods have been repopulated by immigrants who are willing to pay more for less; long-time residents may even intuit that the newcomers have driven up prices and created a sense of disorientation and loss in a place that had once been safe and familiar. And while older owners have benefited from a rise in property values, other long-time residents have suffered—particularly older renters and young people who wish to remain in the communities where they have grown up. This a terrible price for bad zoning policy; and the irony, from an urban planning perspective, is that  even today many of the traditionally working-class neighborhoods of the Northeast and California continue to have low densities.

The Castro district, San Francisco (Andrey Bayda/Shutterstock [5])

If local zoning had simply permitted these communities to absorb growth as it occurred, it is likely many longtime residents would never have been priced out by rising rents or property taxes. This means that more young people could have remained in their home communities and benefited from deep ties to family, social networks, and local wealth; and space could also have been made for new immigrants (and internally-migrating Americans) on much friendlier terms. Instead, our inability to accommodate change at the neighborhood level has resulted in the attenuation of countless social ties; the loss of myriad old communities; and an increased degree of hostility and resentment between competing, but similarly powerless groups, over space that never needed to be so scarce. If anything should outrage even the most nominal Leftist, it is a bureaucratic policy that pointlessly pits the American working class against new immigrants over something as fundamental as the need for decent housing.

Finally, while America may be a center-right country, there are abiding, regional exceptions. New England and its Midwestern outposts have formed a cradle of liberalism since the time of the Abolitionists. In the early 20th century, the industrial cities of the Rust Belt gave us labor Leftism. Most recently, the San Francisco Bay, and—to a lesser extent—a constellation of old Eastern college towns and enclaves in New York City have become incubators of the New Left. A pattern emerges: with the exception of the smaller cities of the Rust Belt, the historical geography of the American Left overlaps today with high housing costs and zoning-imposed growth restrictions.

The irony is rich. But as in many social science problems, causation is less important than correlation. Left-of-center Americans who wish to remain in these parts of the country are forced to chase higher incomes. Few things are less consistent with traditional liberal or left-wing priorities than a pursuit of money to the exclusion of other priorities; yet, this is precisely what many of those living in the progressive touchstones of the Northeast and California now do. Ultimately, most on the Left—including many who find themselves caught up in this rat race—would say that Americans should be free to live in whatever city they choose without being required to adopt the values and lifestyles of corporate careerism. Many on the Right would agree. Moreover, these vibrant, historic regions are integral parts of America. Shouldn’t all Americans, regardless of their current wealth or geographic origins, enjoy basic access to the cultural and economic riches of our great cities?

Where Left and Right Meet

Presuming there is space for a consensus, where do we find it? Broadly deregulating the nation’s metropolitan land markets sounds promising, but untenable within the current political landscape. Note, too, that this alone would not bring back the traditions of neighborhood-building that shaped communities until the early 20th century. Instead, due to the loss of tradition and the rise of technology over the past century, it would take us into uncharted territory. Moreover, we will continue to need ways to exclude real nuisances from the neighborhoods where we live and work.

Ultimately, then, the need for reform should focus on the core parts of zoning ordinances that stubbornly prevent salutary change without an overriding and compelling justification. Examples include arbitrary massing requirements, unit counts, and the separation of compatible uses. These approaches must be replaced with regulation that allows developers to meet market demand, with as free a hand as possible, while working within the liberal parameters of traditional urban forms. Such reforms could allow neighborhoods to adjust to the needs of their current residents and businesses; free property owners to pursue the highest and best use of their parcels; and, over time, allow regional housing costs to trend toward equilibrium with local incomes.

Perhaps more importantly, they would allow more Americans, through broader economic empowerment and individual freedom, to shape their communities into reflections of their actual life patterns, cultures, and personalities. This shaping—by rich and poor, urban and rural, liberal and conservative—was once an essential part of what made the United States such an exceptionally democratic society. To a troubling degree, we have lost this quality in recent years—in no small part because of bad zoning.

Theo Mackey Pollack practices law in New Jersey, is a consultant on urban-planning projects, and has worked on Hurricane Sandy recovery projects in New York City. He blogs at Legal Towns [6], and has also written for the Metro New York Transit-Oriented Development Newsletter and the Steven L. Newman Real Estate Institute’s white papers series.

16 Comments (Open | Close)

16 Comments To "Time for a Left-Right Consensus on Zoning Reform"

#1 Comment By Clare Krishan On February 16, 2018 @ 5:32 am

The author makes no mention of the NRA-developed fad for restrictive covenants on land parcels, that flow with the land in perpetuity. Absent a wholesale reform of collectivization via uniform planned community acts in all 52 states, I see no hope for market-forces change. For example our residence in a 30-yr old community in a desirable swathe of suburban Philadelphia still has not obtained clear title to the parcel of real estate known as common elements, it is still encumbered by construction debts of the estate of the deceased bankrupt declarant (the drafter of the flawed Covenant, Rules and Restrictions) after decades of costly legal wrangling including appeal at State level. A dysfunctional Board of Directors has seized on the opportunity to refurbish the whole community under common-interest development riders on the mortgage notes, that oblige all units to pay parity for maintenance even when their is a huge disparity in lot size, square footage of rentable space and architectural cost-liability (end models of multifamily construction are all larger and more complex ie costly to remediate). Thus the statutory covenant mandates unjust enrichment – a travesty for conservative Christians — compeling residents to sin by breaking the sixth commandment (Catholic ranking) if they wish to remain in the only home they know (or freely consent be stolen from if unlucky enough to own one of the more modestly-scaled units with 40% less siding/roof to repair or replace)

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Such PUD riders were designed not for owners benefit, to to aide Wall Street float mortgage backed securities backstopped by special assessments for necessary community repairs. It is a regulatory capture of the worst kind, fostering corrupt boondoggles on a massive scale, forcing economic eviction on unsuspecting condo or HOA buyers (the law only requires a resale certificate that can hide all manner of ills and hidden expenses, such as our law suits and aesthetic gentrification to price out owners on fixed incomes).

Would appreciate the author’s take on such citizens in such multifamily housing – now predominantly constructed as rentals by investors — facing insurmountable debt mountains as they “age-out”

#2 Comment By The Scientist 880 On February 16, 2018 @ 7:02 am

“This phenomenon may also have played a part in a waxing hostility toward immigration. Consider that a major portion of the white working class that once populated the coastal cities of the Northeast and California has been on the losing end of this phenomenon.”

My family has lived in Boston since 1920 and were the first black family to move into the south end in 1958 which was then a white working class neighborhood. I know for a fact that this isn’t what happened to working class white neighborhoods in Boston.

The white working class was absolutely not priced out of the city. Housing prices in the city of Boston were DECREASING in the 70’s and 80’s. We moved out of the south end and moved to Roxbury in ’92 where my mom bought a 3 bed 1 bath house for $90k. The white working class had already left the neighborhoods they had once inhabited by that time. The south end, southie, East Boston, and Charlestown along with the north end were all either depressed neighborhoods or had been depressed neighborhoods inhabited by gay residents that were in the early stages of making a comeback in ‘92. Boston has gone through decades of losing population 13.01% population loss in 1960, 8.05% loss in 1970, 12.18% loss in 1980. To claim working class whites were “displaced” is to ignore white flight which was a choice they made. Boston has lost 240k people between the 60’s and the 90’s. The city still isn’t back to its population high water mark in the 50’s. Prices just started being so high in Boston as of the late 2000’s, long after working class whites had headed for the hills.

I’m pretty sure the same can be said about NYC. The working class whites hit the exits in the same time period as Boston. An apartment in what is now Time Square was dirt cheap in the 70’s being it was an area filled with prostitution. Immigrants sure didn’t make them leave.

As far as this being a center right country, republicans have only won the popular vote 1 time in the last 26 years. That sure doesn’t seem like a country pining for what the republicans are selling. Most of the population isn’t voting for them. Quirks of our system and gerrymandering have allowed them to win.

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#3 Comment By KD On February 16, 2018 @ 7:33 am

Alas, the true Left/Right consensus is “Not In My Backyard”. Vibrancy is only possible if accompanied by high property values.

#4 Comment By Liam On February 16, 2018 @ 10:51 am

It was none other than that champion of rugged individualism, Herbert Hoover, as Secretary of Commerce in 1926, who put the federal imprimatur on using zoning to manipulate social desiderata (sub rosa, to deepen segregation).

#5 Comment By Theo Mackey Pollack On February 16, 2018 @ 3:58 pm

Just want to offer a quick reply to The Scientist 880. You provide a great snapshot of Boston’s urban social history. Thanks.

I think we are focusing on two distinct periods. Of course, you’re absolutely right about what took place in the decades after World War II, when a significant portion of the white working class abandoned the major cities for the new suburbs. Available, affordable housing in the suburbs was a big factor; but racism, class attitudes, excessive consumerism, and other negatives also played their part.

I made an indirect reference to the dynamic during this period when I noted that the fast-growing suburbs had taken pressure off of urban housing markets, making working-class urban neighborhoods relatively affordable during the same time period. On the downside, while this first wave of out-migration from the cities was, indeed, overwhelmingly voluntary, it contributed to the period of incredible urban decline and blight over the last decades of the 20th century.

When I write about the white working class being priced out of the major cities of the Northeast and California, I am focused on a more recent cohort: those who had *not* fled during the post-war suburban wave, but, rather, those who had *remained* in the erstwhile affordable working-class neighborhoods of American cities through the 1980s and 1990s — and, really, through today. (I was born in 1980, in a suburb of New York City, and I have seen this trend playing out around here for as long as I can remember.)

This second cohort was/is largely comprised of people who had some combination of valued local ties, financial circumstances, and/or relative comfort with demographic change that outweighed any reasons to jump on the suburban bandwagon when doing so it was at its peak.

As trends changed over the last generation (often gradually and unevenly), *property owners* within this cohort reaped windfall rewards. But long-term *renters* faced increasing price pressures, often leading to their displacement; and young people had nowhere to go (but away, or into crowded living conditions), when the time came to form their own households.

#6 Comment By midtown On February 16, 2018 @ 9:27 pm

I agree that there is some overlap on the issue of zoning, but any changes would have to account for school quality fears — that is not the only thing driving zoning, but it is a big part. You will need to have a rather radical form of school choice (which would include public school choice).

#7 Comment By The Scientist 880 On February 17, 2018 @ 9:01 am

Theo,

I can’t speak to NY that closely about the recent cohort but I can tell you that there really wasn’t much of a working class white population left in Boston by the year 2000. Maybe there were some left in Southie, but the white parts of Dorchester (where Mark Wahlberg is from), the south end, Charlestown and the north end were mostly gone. What remnants there were were very old people. You certainly didn’t see many identifiable working class white kids in the Boston public schools or on the busses or at the malls and stores that were close to those neighborhoods. Remember, the early 90’s was still crack days around here. I lived in the south end at that time as a child. Gay men had moved in and you could still get murdered around there. My first memory was seeing a dead body. I can’t speak much to southie because I only started going over there within the last 10 years. Southie has a history of being a racist terrorist zone from the 70’s so I was always told never to set foot in that area where the working class Irish white people lived, ESPECIALLY on St. Patrick’s day. The book “All Souls” by Michael Patrick Macdonald documents the kind of violence that area was known for. You could get killed as a black person for just driving through the neighborhood.

Also, Boston has a HUGE working class black and Hispanic population of home owners. They live in Hyde Park, Mattapan, Dorchester, and Roxbury. Boston does not have a sizeable black and Hispanic professional class. How could working class white people, who are wealthier as a group than working class blacks and Hispanics by a lot, be priced out of the city yet the blacks and Hispanics manage to stay and own property? Sure, they might have been priced out of their neighborhoods but there was plenty of affordable housing in the southern half of the city that they could have snapped up in the 80’s and 90’s but they didn’t want to live around black and Hispanic people. I fail to see why their choice to move out of the city is my problem. My mom bought her home in ‘92 for $90k in the worst area of the city furthest from jobs and where there used to be quite a bit of crime (it’s quiet now). The house 3 bedroom 1.5 bathroom 1600 sqft. on a quarter of an acre. It needs new wiring and is almost 100 years old and is valued at $420k now. This was certainly an option for those working class whites to buy. She will be mortgage free in 4 years. At the end of the day, we suffered through the drugs and the crime and now are experiencing the windfall that comes from the city getting back in its feet. I don’t feel like any of the home owners who lived through the 60’s-2000 owe the working class whites who abandoned the city anything. When tables were turned and we had the drugs and crime did working class whites care? Did they offer a helping hand or advocate on our behalf? Did they fight for those city people who were devastated by the blight? Nope, they told us all to bootstrap it. I lived this stuff my entire childhood.

#8 Comment By Tom Molinari On February 18, 2018 @ 8:47 am

The article neglects to point out that the current shape of American cities and towns is the result of widespread use of the automobile in the mid 20th century as the primary mode of transportation. To imply that the current landscape is the result of liberal ideals in non-productive and self-serving.

Are zoning laws in need of updating to meet the community planning needs of the 21st century? Absolutely! But let’s not forget that homebuyers chose to buy in neighborhoods with large lots, low traffic levels, and segregated from commercial activities. And, in many or mos cases, they still prefer that configuration.

Market forces and preferences led us to where we are today. It’s going to take strong leadership to modify current zoning laws to allow for denser communities with better access to public transportation. Let’s leave the liberal-conservative divide out of equation and work for what works best for everyone.

#9 Comment By Elena Vasquez On February 18, 2018 @ 11:35 am

Scientist 880;

If the Democrats have to struggle to get the electoral vote, then what you define as “most of the population” isn’t as big a majority as you think it is.

#10 Comment By The Scientist 880 On February 18, 2018 @ 5:18 pm

Theo,

I found some housing price data showing the difference in sqft pricing by neighborhood in Boston. I’ve attached the link below. I’ve assumed the average home was 1,800sqft which is a little on the large side for working class housing in Boston but I wanted to be generous. You’ll notice that the average home price in 2000 in South Boston was $259k, $194k in East Boston, $338k in Charlestown, $273 in Allston, $356k in Jamaica Plain, $338k in Brighton, $250k in Dorchester, and $164k in Hyde Park.

According to the census, median home prices for all of Massachusetts in 2000 was $185k which means these homes weren’t that outrageously expensive for working class whites, especially considering that they have higher net worths than working class blacks or Hispanics who somehow managed not to get pushed out of the city. The same is true for NYC. There are still tons of blacks and Hispanics in the city who are poorer than working class white people are, so the idea that somehow those people managed to find housing in the 2000’s in the city white working class whites were “forced” out is real suspect. You’ll have to actually provide some data instead of just asserting that it’s true. I’ve noticed that this is a major weakness on posts at TAC. Writers make all kinds of non-opinion statements with zero evidence backing them up all the time around here.

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#11 Comment By James Mullen On February 19, 2018 @ 8:16 pm

Avery significant affect to neighborhood decline in the city was not mentioned. Perhaps tacitly, but I’ll be explicit. Red lining. The inability of people of color to receive home improvement loans and mortgages created a feed back loop of entropy. This in turn informed white populations to flee the visceral degradation of formerly intact neighborhoods. When any possession, especially a dwelling, is met with deferred maintenance the result is predictable.
Scientist 880 is correct when retorically asking if the white class were offering a helping hand to those residence that stayed. In fact I would posit that leftover strains of red lining still exist and for more nepharious reasons today such as a mechanism to drive the remaining hold-ons out thus gentrifying and raising rents.

#12 Comment By Brian M On February 20, 2018 @ 5:12 pm

Elena: See the National GOP response to the Pennsylvania Supreme Court’s rejection of ridiculous GOP gerrymandering.

It’s amazing what voter disenfranchisement and a downright fetish for preferring rural (white) voters can get you.

#13 Comment By Brian M On February 20, 2018 @ 5:22 pm

Scientist 880:

You do realize that your riposte contradicts a common meme among both “left” and “right” “white working class whisperers”?

THEY are always the victims.

#14 Comment By The Scientist 880 On February 21, 2018 @ 7:29 am

Brian M,

I’m certainly not shedding tears for the white working class. I’m black and grew up working class. I lived in the inner city and saw crack and murder as a small child. Why would I waste my tears crying over people who had more money than I did as a youth and didn’t care about my life when the tables were turned? To them, I offer the same advice they had for me in the early 90’s; pull yourself up by your bootstraps and stop looking for handouts. I can say it because I actually did it. Maybe they can take the same responsibility for their lives.

#15 Comment By Sopater On July 18, 2018 @ 5:00 pm

If less zoning ordinances would be better, wouldn’t no zoning ordinances be best?

#16 Comment By JB On September 1, 2018 @ 2:22 pm

Why is an image of the Castro neighborhood of San Francisco included in this article??? I lived there with my family for 15 years and it was a wonderful neighborhood. I could walk to run all my errands – grocery store, bank, drugstore, post office, etc within a 3 block radius. There were many locally owned stores. There’s a beautiful park with a rec center, playground, dog park, tennis courts. Neighbors know each other since we are walking, not driving. Great public transportation. can walk to elementary school. Can walk to church. The list goes on and on. We moved to Texas and tried to replicate the neighborhood but it was hard. The neighborhood planning with isolated houses where you must drive everywhere, strip malls filled with national chains, no sidewalks, no public transportation….Texas is not set up for livable neighborhoods.