A City Is Not a Nuisance

A judge in Alexandria, VA effectively accepts the argument that the city in abstract is a nuisance

I have a new piece in Discourse magazine that I wrote after reading a news story about a lawsuit in the city of Alexandria, Virginia. This is the bit that got me going:

The plaintiffs, all Old Town residents, have been fighting to reverse the zoning changes since they were approved by City Council in Dec. 2023. While initial efforts were dismissed in court, their amended filing specified how their individual properties would be harmed as a result….

The residents argued that increased traffic and foot traffic are examples of particularized injuries that they would suffer, as well as increased taxes, parking problems, and population density.

Schell ruled that the case brought forward by Alexandria residents Phylius Burks, William Corin, David and Meghan Rainey, Joshua and Maria Carias Porto, Jimm Roberts and John E. Craig can take their case to trial.

What does this mean, exactly? The article also mentions an anti-development coalition in Alexandria that was denied standing. The sticking point was that they were simply an advocacy group and couldn’t point to an actual particularized harm. The Old Town property owners, however, could. And among the harms they chose to claim the city’s new “missing middle”/Zoning for Housing zoning reforms would inflict—and which the judge considered legitimate enough to let the case go to trial—are “foot traffic” and “population density.”

(Here’s the city’s material on the zoning reforms, which most importantly allow small multifamily structures pretty much everywhere in the city, even in the old single-family-only zones.)

I understand that “standing” is a bit of a wonky legal concept, and that the judge letting the case go to trial does not mean he agrees with their argument, much less that they’ll actually win the case when all is said and done. Maybe, purely as a matter of law, all they have to do is claim a plausible individualized harm, regardless of its merit.

However, even if that’s the case, isn’t it absurd to live in one of America’s most loved historic cities—not a suburb, not a quiet small town, but a bustling neighborhood in a small but genuine city—and oppose a set of zoning reforms that would increase foot traffic and population density? What exactly is a “city” without these things?

I think it’s really strange how often any zoning reforms, or individual development proposals, get bogged down in litigation. It’s almost expected that no proposal will ever just be announced and approved and get done. It’s also odd how the existing zoning codes are rarely questioned. From the original piece:

And there’s an element of absurdity in how zoning itself has evolved. It’s not an issue that most people ever think about, but zoning regulates almost everything about building and construction, with an apparently scientific precision that in some cases cannot even be traced to any sort of data or study at all. Yet all these laws sit on the books unquestioned, until a locality goes to change them. Surely these old pre-reform codes could be interrogated just as much as the new ones. Were they all passed according to proper procedure, with enough public input? Why don’t restrictions on property development create standing for property owners to sue? If it’s permissible for people to sue for changing the zoning system, why can’t they sue for imposing it in the first place?

But the really key point here is that this Alexandria lawsuit is coming from within an existing traditional city. What these residents have argued, whether or not they would quite put it this way, is that the city is inherently a nuisance. While simultaneously living in one! They are effectively arguing that a city government should not be allowed to loosen its own zoning codes to allow for denser and more urban development, even though that style of development is consistent with the character of the place as it already exists on the ground.

Look, I entirely understand the opposition to zoning reform in suburbia, where part of the “character” of the place is its low density, its greenery, etc. Yes, there are people who like strict zoning for selfish or misanthropic reasons, but a lot folks just want a sense of control, stability, and stable (or growing) property values. Those aren’t bad things to want, even if zoning is an extremely complicated and suboptimal way to achieve them.

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Now you may or may not be familiar with Alexandria. There’s a suburban Alexandria that actually is part of Fairfax County, which we aren’t talking about here. This is about the city of Alexandria, which includes the famous Old Town neighborhood as well as some outlying neighborhoods which are still in an urban form, and some newer developments.

Here are some photos of Alexandria, in and outside of Old Town:

This is exactly the kind of place where an allowance for moderate increases in density will have the effect of filling in or thickening up the place, rather than fundamentally changing it. And that’s exactly what we already see: a place where the layers of organic, small-scale change are almost visible, transforming a place over time into something with a pleasant complexity and visual interest, and which makes a great environment for walking, spending time, and doing business. It will always feel weird to see a change happening, but the sum of it all, over time, is the process by which all of the places we love came to exist.

I would understand opposition to skyscrapers. Or to large, block-long apartment buildings. Or, on the other end of that, a new freeway. I don’t understand opposing modest, small-scale multifamily buildings, of the sort that already make up much of the city’s fabric. And I certainly don’t understand how foot traffic could be viewed as harm.

What these litigious Old Town Alexandria residents are saying is that when the modern zoning code and the historic city clash in character, the zoning code must win. Which is to say it cannot be changed, which is to say the old city that actually exists must never be allowed to be added to or built again. A city is not an artifact. Its bundle of amenities do not exist separate from its form and its population. Perhaps these people love the city. But, just as important, they do not understand it.

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Related Reading:

Three Generations of Separated Uses

Growth Is the Social Contract

Is Zoning a Contract?

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