Theo Mackey Pollack practices law in New Jersey, and is a consultant on urban planning projects. He blogs at legaltowns.com.
Zoning Reform Is Not Leftism
In an opinion piece this week in the Wall Street Journal, President Trump and HUD Secretary Ben Carson attempted to frame the issue of suburban zoning as a left-versus-right controversy. Vowing to protect suburbia from “the crime and chaos of Democrat-run cities,” Trump and Carson raised the specter of a Biden administration animated by “the ultraliberal view that the federal bureaucracy should dictate how and where people live.” Yet in almost the same breath, the president and housing secretary also bludgeoned state and local governments for adopting zoning reforms—presumably consistent with local wishes—that lifted restrictions on housing types other than single-family, and reformed other policies that have contributed to both housing shortages and subpar development in their communities. The common enemy in Trump and Carson’s parade of horribles is not government interference, but, apparently, any measures that would upset suburbia’s restrictive zoning status quo.
To characterize proposals for zoning reform as “leftist” is incorrect. It is true that a number of Democratic candidates and progressive organizations have embraced some of these proposals. Yet it remains the case that for most of American history, from the time of colonial settlements to the heyday of the robber barons, American neighborhoods grew in response to markets, not zoning. The common law, which we inherited from the Burkean customs of England, regulated development with a light hand: statutes and ordinances spoke on matters of safety, including fire prevention and—in big cities—bans on crowding so severe that it constituted squalor. Many of the current proposals to, say, eliminate or reduce the footprints of single-family zoning, or to reduce massing specifications, could in fact allow American builders to revert to habits that are much more traditional in American life.
For most of American history, building lots could be combined or sliced up according to subdivision laws. Houses, attached or not, and other structures such as stores or workshops, could be built with little or no government permission. When more people wanted to live or work in a particular location, larger structures would be built—and sold for a profit—to accommodate growth. Private property owners shaped the urban patterns of our country, informed by European building traditions that had evolved over the centuries. The patterns expressed variations of a tradition. What we call “downtowns” were inherited from the town centers of Western Europe, and by extension from the more ancient past. Building customs had been growing and absorbing wisdom since classical times. American patterns represented a widespread impulse to continue the life patterns that such settlements supported; they evinced a desire to transplant the customs of the old world to the new; to build a new country that encompassed its rich cultural inheritance with an eye to the open horizon of the vast frontier.
This is how American towns and cities—from the canyons of Wall Street to the one-light country crossroads on the Great Plains—were built. This is why the parts of America that were built before World War II still have Main Streets and squares; and why these are flanked by the civic buildings of local democracy, social clubs and churches, and small businesses of every stripe. This is why they have quirky, mismatched houses in a variety of shapes and sizes. Land, even good land, was cheap if you could build on just a small piece of it, and people did—building the most participatory and dynamic economy in history and, ultimately, a middle-class nation.
Zoning changed all of this. In the late 19th and early 20th centuries, in response to the noise and pollution of heavy industry and rapid population growth, local governments sought new regulatory powers to curtail these excesses. But once they attained these powers (largely following the Euclid Supreme Court decision in 1926), local boards rarely limited their reach once obvious nuisances had been prohibited near houses, shops, and schools. Over the next century, local officials—primarily lawyers, local politicians, and urban planners who had been trained in a very technical midcentury approach to their profession (think Robert Moses and Levittown)—usurped the erstwhile domain of property owners and building tradesmen to make their own judgments about building. They mandated, in minute details, the patterns by which new neighborhoods could be developed.
Rather than towns, these land use policies have given us sprawl: endless cascades of strip malls, garden apartments, and parking lots. Few would argue that the postwar suburbs of gas stations and chain stores is consistent with the tradition of small, locally shaped communities that once characterized America. And the regulatory regime that has produced them would hardly impress any believer in private property, adherence to custom, or the input of civil society. Most of the proposals now that President Trump and Secretary Carson now vilify—or label as socialist—are merely modest attempts to chip away at the abiding regulatory power of 20th-century zoning.
Perhaps the worst parts of the status quo can be found in the suburbs around America’s wealthiest cities in the Northeast and California. In many of these regions, constant growth since World War II means that nearly all of the land within commuting distance of the main city has been gobbled up by maps imposing these sorts of land use regulations, bringing us to today’s crisis of affordable housing for middle-class buyers. Some neighborhoods built for working-class residents in the early 20th century are now very expensive; others house migrant workers, cramped into overcrowded conditions in order to cover high rents, in scenes reminiscent of those Jacob Riis described more than a century ago.
Neither scenario leaves much room for middle-income residents who might otherwise wish to find market-rate housing and begin families in these regions, where good jobs are clustered. Nor does either leave many options for older residents on modest incomes who wish to remain in a familiar setting. Renters and owners alike are squeezed by rising property taxes, in tandem with rising assessments. Even the wealthy are required to settle for more modest housing options, in many cases, than they might prefer. The status quo benefits landlords and those fortunate Boomers who rode the wave of rising property values from the 1970s to the 2000s, but few others.
Accordingly, changes are already happening at the local level, driven by a growing understanding of the role these outdated land use regulations play in the challenges facing our communities. These changes have included measures in Minneapolis and Oregon to curtail single-family zoning, and efforts in California to permit homeowners to add small apartments or allow more development near transit infrastructure. Yet Trump and Carson have attacked those as well—betraying the disingenuous nature of their argument and exposing the pretense that their main grievance is directed at federal proposals. To be sure, there are serious questions about the wisdom or fairness of many attempts to use the power of the federal purse to extract changes from local policymakers. Some proposals may be wiser than others, and in the spirit of subsidiarity, it is often well enough to leave decisions about local policymaking to local bodies, even where experts may have reached a national consensus.
Yet it remains the case that in the United States each taxpayer wears several hats. To the extent that federal dollars are being spent developing infrastructure that creates wealth in certain localities, is it not reasonable for federal taxpayers to expect that the same localities are not actively excluding—through a morass of arcane and restrictive zoning regulations—the very taxpayers who have financed their costly and remunerative improvements?
If the towns and cities of Silicon Valley receive multibillion dollar federal investments (on the premise that the growth of their local industry is a boon to the nation), is it unreasonable to say that they ought to permit enough housing development for recent American graduates, with talent but no trust funds, to move there and obtain a foothold, to share in that growth? Is it too much to ask that the suburbs of New York City or Los Angeles—when they benefit from federal investments—do the same? Time was when these kinds of suburbs were the cradle of America’s middle class; today, they are calcified and expensive, yet local politics resists any change.
Today, in expensive and affordable regions alike, the most attractive suburbs are still those that were built in the tradition of towns—mostly before World War II. They have Main Streets, squares, and a cluster of buildings that includes ground-floor shopping, with offices and apartments above. Outside this center, they have a mix of housing types—some large houses, some small; some single-family, some two-family. Closer to the center, typically, they even have a few apartment buildings. Contrary to the president’s rhetoric, these apartments rarely warehouse poverty or criminal activity. Instead, residents are typically single people, young couples, or retirees—or lower-middle-class residents with ties to the community. The very variety found in the streets of such communities is a testament to their development in a less regulated time.
Trump and Carson raise the specter of “density” to frighten suburban voters, presumably evoking images of massive housing projects and urban chaos. But allowing a portion of our older suburban municipalities to evolve into small cities—and allowing a portion of our post-war sprawl municipalities to evolve into proper towns—would allow America to accommodate its population growth of the last two generations while rectifying some of the planning mistakes that have scarred the landscape. Yet these changes cannot happen in a political environment where growth is vilified, and where the status quo is held up as a fortress to be defended rather than one point along the line of America’s long urban (and suburban) history.
Relaxing and reimagining some aspects of suburban zoning to make room for modest and attractive growth is a necessary precondition for reaching a stable equilibrium in our neighborhoods and social institutions. And allowing a broader cross-section of Americans to make the most resourceful use of their own property—with fewer restrictions—is not a conspiracy dreamed up by the radical Left. On the contrary, it would bring us closer to the building traditions that shaped America when it was reaching the apex of its strength as an industrious, productive, and affluent nation—and when its communities expressed a tangible line of continuity and tradition from the old world to the new.