What would reasonable building laws look like? Part 1

So I write about zoning a lot. But other than “more housing, please,” I’ve never really given much of an outline of what I think cities ought to do with their zoning codes.

Part of that is intentional. Thanks to some combination of a begrudging acceptance of political realities and a genuine belief in local communities’ right to have a say in their own development, I don’t think specific declarations about what should and should not be allowed are really useful or appropriate. But you have to start somewhere, and I think it’s necessary for those of us who are arguing for change to give some indication of where that change might take us.

I don’t know how to illustrate this post, so here’s a squirrel who looks like he’s interested.

Though I’ll get around to some specific ideas about building types in the Chicago area, I actually think that the most important question isn’t what will be built on your block, but how – and by whom – decisions about zoning will be made. In practice, after all, the answer to the first question will depend on the answer to the second.

So what would a good zoning process look like? On principle, I’d suggest it be:

1. Democratic, in the sense that everyone who is affected by the decision gets a voice, and

2. Effective, in the sense that it stands a good chance of meeting fundamental goals: that housing isn’t more expensive than it has to be; that housing policy doesn’t encourage the concentration of poverty or people of a given racial background; that nuisances are minimized; that communities are attractive to the people who live in them.

On both counts, the current zoning process in Chicago – and the vast majority of cities around the country – fails miserably. Decisions about what can be built where, at the moment, are generally made by some hyper-local official person or persons: either an alderman or a zoning board, often belonging to a relatively small municipality in some larger metropolitan area.

If this sounds like a democratic process, it isn’t. The issue is that a truly democratic system doesn’t just give some people a vote; it gives a vote to everyone affected by a given decision. This is why our federal government allows, say, Illinois to sue Indiana for dumping toxic waste into Lake Michigan: even if the voters of Indiana have signed off on that, democratic accountability demands that everyone who might be drinking Lake Michigan water be consulted.

In the same way, decisions about housing made in one neighborhood, or one suburb, end up affecting the housing market in the entire region. If Wilmette bans apartment buildings to prevent people with moderate incomes from moving there, then some other city will find those people arriving on their doorstep. If the alderman in Lincoln Park allows so little new construction that the neighborhood actually loses housing units, then the people who can’t find a place to live in their first-choice neighborhood will go to their second or third choices, driving up housing costs in Wicker Park and Bucktown. Under the current system, most of the people who end up being profoundly affected by zoning decisions don’t get to have any say in them.

For example: next-door residents in Irving Park objected to a three-story building that would have included a grocery store, so instead they got a one-story dollar store. It’s hard to imagine the neighborhood as a whole would have welcomed that particular trade.

Current zoning procedures also fail to do some of the most basic things we might expect from government regulation of housing. It makes housing more expensive than it has to be; encourages racial and economic segregation so extreme that what neighborhood you’re born in determines to a huge extent your life chances; and frequently fails to promote the kind of community character – aesthetic and otherwise – that residents want.

So we ought to change the way we make decisions about land use. Specifically, we ought to make those procedures a) more accountable to the full range of people who are affected by them, and b) more tied to the things we want to get out of housing policy.

The problem, of course, is that these aren’t necessarily complementary goals. In particular, the history of the United States suggests pretty strongly that there is a working majority in many places who would like to use housing policy to exclude undesirables, whether those are the poor, or some ethnic minority, or whatever. I don’t think this is an acceptable, or constitutional, outcome, although it’s notable that the Supreme Court seems to disagree with me re: poor people – and, to a significant extent, re: ethnic minorities, too.

But anyway, in the same way that, say, local voting regulations are subject to federal scrutiny, the best zoning reform proposals I’ve seen combine democratic accountability with some sort of protections for people who usually end up getting screwed by the democratic process.

One way to do that is keep the current system, but add to it some regional or state-level body with the power to review local decisions and overturn them if they violate some set of previously agreed-upon principles. Illinois has an incredibly weak version of this with the Affordable Housing Planning and Appeal Act, which requires that municipalities where less than 10% of the housing stock is deemed “affordable” come up with some plan to get up to 10%. So far, I don’t know of much evidence that that has changed much. New Jersey almost created a really strong version of this after the Mt. Laurel state supreme court decision, which unfortunately has mostly been dismantled since then.

A more top-down – but possibly more effective – approach would be a “zoning budget,” in which some regional or state-level body actually dictates how many new units need to be built, based on some previously agreed-upon principles – say, if prices go up X% relative to income, we need Y% more units – and then allows local governments to fight over exactly where they go, and how.

Finally, another possibility is to simply bribe homeowners to overcome their resistance to more construction near their homes. This would be accomplished through something called TILTs, which would essentially redistribute some of the new property tax revenue from new construction to existing homeowners.

At the moment, I’m more or less agnostic among these options, and whatever others may exist. (Except to say, I suppose, that TILTs seem like a rather regressive way of accomplishing saner zoning controls. But probably less regressive than our current zoning, so fine.) To be honest, I mostly just don’t know enough to have a strong recommendation, but also I tend to think that people should be allowed to figure out how they want to get to a particular goal. The point of all this is less to light the way to the one best reform, but rather to suggest the direction in which any successful reform ought to move: it needs to take into account the interests of everyone, not just a project’s immediate neighbors; and it needs to keep an eye on what housing policy is actually supposed to accomplish.

6 thoughts on “What would reasonable building laws look like? Part 1

  1. Looking at Canadian practices could be helpful, I don’t think they have the zoning restrictions or hyper-local control as much as here. But Toronto and Vancouver have very expensive housing costs anyway, but it’s more for owning a detached home, condos and especially apartment rentals aren’t that extreme.

  2. The usual suburban zoning practice might not be explicitly no poor people, but a general let’s make sure we attract the same type/class of people that already live here, which these days is more class than race based. And a similar housing stock.

    Where I grew up (Long Island) has a rather anti-growth culture. There’s a feeling that everything is already built up and too congested and we don’t need any more housing. Those who have any input are current homeowners not future residents. There are enclaves that have declined with a large presence of poorer minorities (especially recent Hispanic immigrants). Most locals would prefers these not expand if there’s anything policy-wise that could be done about it.

    1. Yeah, there’s a lot of that here. I think part of it is a sense that the natural order of things is that there be hardly any development at all – in Chicago, there was very little demand for it in large parts of the city for a long time. Now that there is, it seems like something foreign, even though over the course of the lifetime of the city, rapid development has been as often the rule as lack of development has been.

  3. Daniel, here in unzoned Houston we have some ordinances that help maintain or predict the build environment, and to some extent use for periods of 20 or 40 years. They are our Minimum Lot Size and Minimum Building Line ordinances, which are applied for by residents on blocks, or within neighborhoods.As a planner for the city, I help administer the ordinances and work with residents to process their application.
    As Houston continues to grow in population, the demand for housing results in home being sold to be torn down, which is resulting in a great deal of townhouses being built. Some people don’t mind them, and they definitely have their place in Houston (as we desperately need more housing in our urban core), but some neighborhoods would benefit from protection from different intensities and forms of single family housing.

    (A bit more on townhouses in Houston: http://cdandrews.blogspot.com/2014/01/talk-of-townhouses-density-in-houston.html)

    Residents can use these ordinances to protect their neighborhoods, and many have. It’s about as democratic of a process as I can recall, especially when compared to a traditional zoning ordinance. Applicants gain support from landowners on their block or within their neighborhood by collecting their signatures before submitting their application to the city. We then process the application, and either pass the application to City Council for their decision, or forward it to Planning Commission, before it goes to City Council. It’s an interesting process, and one that many residents are continuing to take advantage of. Please let me know if you’d be interested in learning any more about it.


    1. Yeah, I find Houston’s land use controls super fascinating, both inasmuch as they are looser than most of the rest of the country, but also in how they’ve found innovative ways to be just as restrictive. A prof in my program here at Harris co-wrote a study a while ago that found that Houston’s land use controls contributed as much to segregation as Dallas’, which is a pretty non-intuitive finding for anyone with a cursory understanding of the situation (ie, me).

      I think the idea of neighborhoods voting on restrictions like that is interesting, but it makes me nervous for a reason similar to the aldermanic prerogative system we have here in Chicago: it gives a say on development to a much smaller group of people than those who are actually affected by development. There needs to be some way to balance the needs of the broader city and region with the desires of people who live in any given neighborhood.

  4. Daniel, this piece goes a long way toward gaining a clearer understanding of your thoughts on zoning reform, and understanding how we share common ground on much but still split on future proposals. I hope you can indulge me as I try to respond to your thoughts here.

    First, it appears you’ve done something with zoning that I’ve never considered — you grouped zoning laws within a metro area and put them into a larger regional context. That’s what I gather when I see you considering having a regional or state authority manage affordable housing goals or a zoning budget idea. My understanding of zoning, mostly in the Chicago area, is of nearly 300 independent actors (municipalities) trying to act in their own narrow interests, but broadly within two loosely connected housing markets — the pre-WWII built environment that includes Chicago and nearly all of Cook County, and the post-WWII built environment that characterizes much of the rest of the metro area. Zoning evolved differently in both areas. Within Chicago and most inner-ring burbs, zoning was put in place to codify existing land uses and socio-economic structure, like in your Wilmette example. Beyond that area, however, zoning has become the exclusionary tool that allows burbs to eat up land and drive up prices, i.e., sprawl.

    The differences were pretty massive. My former boss was involved in the Chicago zoning ordinance revision (2002, I believe), and I remember him saying the 1957 ordinance was structured to accommodate 5 million residents and 1.7 million households in the city. Meanwhile, suburban zoning ordinances were enforcing large lot standards and restricting multifamily uses to make themselves “family-friendly” and as exclusive as possible. Maintaining enough housing supply was a key feature of the pre-WWII ordinances, and suburbs were filling the exclusionary housing policy vacuum.

    But when the pendulum swung in favor of the burbs in the ’70s and ’80s, older places began downzoning to compete with the newer burbs. Chicago never came close to that 5 million residents/1.7 million households figure and found itself with excess supply (which, on a citywide basis, I maintain it still has, but it’s declining). What we’ve realized since then, in our subconscious if not explicitly, is that there are two markets — simply downzoning to create suburban-like enclaves in dense cities doesn’t work because the burbs do that better. We’ve also learned that there is a growing demand for the dense and walkable built environment that was established before WWII.

    This is just a really long way of saying that I’ve never thought that the hundreds of individual zoning ordinances in the Chicago area worked in concert to create the housing environment we have today. Honestly, adjacent burbs have a limited understanding of the zoning between them, let alone a burb that’s 20 miles away. But there are two broad markets, one more conventionally urban and one more conventionally suburban, and little relationship between the two.

    This was as clear as mud. That’s what I get for writing this at 4am. I may need to elaborate later.

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