A Little More On Zoning Preemption

And a reason to be cautious about it

I’ve been following the YIMBY-Strong Towns debate over state preemption of zoning, as well as the issue more generally. Strong Towns folks are mixed on the question but lean skeptical of empowering states, even in a deregulatory way (which is one of the basic nuances of this whole debate—that unwinding government power is itself a political process); YIMBYs are more straightforwardly in favor.

I wrote my basic opinion on preemption here, where I cautiously come down in favor of preemption, at least as one tool in the zoning reform toolkit. I have no objection to it in principle, but I could be convinced it’s not necessarily an ideal solution, at least not everywhere.

The latest essay in an exchange on this topic—

Charles Marohn

(of Strong Towns) responding to an essay from

Laura Foote

and

Jeff Fong

(YIMBYs)—is very good, and Marohn clarifies a point that I didn’t get from his earlier writing on the topic. It’s right in his subhead: “State preemption can remove obstacles, but it can’t build the local capacity that’s required for lasting reform.”

I guess my answer would be, yes, but it’s not exactly easy to build local capacity when an unrepresentative minority of NIMBYs controls the machinery of land-use decisions at the local level. So in my view—again, not held doctrinally, just my sense of the issue—freeing up that machinery is a precondition of capacity-building, not somehow contradictory to it.

I’ll quote you a bit from Marohn:

But just because cities aren’t working the way they should doesn’t mean they’re the problem. In fact, I believe cities are still our best hope for real reform. At its core, the Strong Towns project is about changing how cities function, reorienting them away from vertical dependence on outside capital and toward horizontal alignment with the needs and capacities of their own residents. That shift isn’t just bureaucratic; it’s cultural. It’s about building cities that act with their people, not merely on their behalf.

This is where we diverge from some of our pro-housing colleagues: not on the need for reform, but on the path to reform. I worry that the emerging consensus around state preemption — while understandable — risks repeating the very pattern that got us into this mess: a top-down system that promises abundance but, in the process, disempowers the very communities it seeks to help.

After all, we’ve seen this before. Again and again, tools originally meant to solve local problems — tools like comprehensive planning, the 30-year mortgage, even the credit score — are absorbed into centralized systems and gradually repurposed to serve other priorities. What begins as community problem-solving becomes rigid, exclusionary, and sometimes predatory. The tool becomes detached from the people it was meant to serve. The problem isn’t always the tool itself, but the way the state directs, misdirects, and rewards its use.

What I see here is skepticism, fear of “creep”—the process by which a government power or program kind of inexorably develops and expands in ways not intended. So in a sense Marohn isn’t saying “preemption would not work”; he’s imagining future risks with more caution that others. I can also imagine “preemption” becoming a rhetorical umbrella under which state requirements with regard to housing are also included. And he may be right. I couldn’t say for sure.

Marohn, evidenced by his work, is a conservative, in this dispositional/attitudinal sense particularly. I get the sense that he, like me, needs to imagine a small-c conservative route to urbanism/housing/etc., and the YIMBY framing of these issues doesn’t always quite jibe with that.

But to his point about building capacity—it brought to mind probably the most interesting comment I received on my own preemption piece, from

Lee Nellis

, which articulated an anti-preemption argument I haven’t really heard anywhere else (except now from Marohn).

His argument is not from the point of view of someone who wants the state to leave local NIMBYism intact. Rather, it’s an argument from a locally engaged urbanist who sees real progress happening at the local level. So I want you to read this, especially the second half starting with “What I want to say here is more directly…”:

Here’s another perspective.

I’ll leave out the part about the states being obsolete. People have been pointing that out since at least the 1880s and it never gets traction. I will just note that when you write about the issues (as opposed to the laws), you (and many others) consistently say that they are “regional” issues. Have you ever said they were “state” issues? Whatever, “regional” is right (even tiny Vermont has distinct regions). What do the issues in N VA have to do with those Virginians whose “big city” is Knoxville, TN? I could go on and on with examples.

I will also skip the fact that preemption is a different legal reality in some states due to the “home rule” language of the state constitution. That doesn’t end up making much difference.

What I want to say here is more directly about why local officials and planners hate preemption. Our town has reformed its zoning over roughly 15 years. One of the first and most interesting steps was to eliminate minimum lot sizes for residential and regulate by density, instead. That was easier here than in most places, but it wasn’t easy. So, how would you feel if you were a local official or staff who fought that battle and won it, then your legislature made a change that required you to toss the results of dozens of public meetings, hundreds of individual conversations, a great deal of work, and thousands of dollars from the local budget to arrive at a new system (that has facilitated construction of hundreds of units)? How would you feel?

The chances that a majority of the TX legislature actually understands the on-the-ground impacts of imposing a 3000 SF (I think that's right) minimum lot size are what? Zero? It sounds good. It lets them throw weight around (and while I don’t know how it is in TX, there is often tension between legislators and local officials, so some legislators may have enjoyed that). It has nothing to do with the particularities of the affected communities, all of whom now have to bear the costs (financial and political) of changing their regulations in ways that may not make sense. And oh, btw, did the legislature appropriate anything to cover the financial part of those costs?

Preemption punishes the progressive, the creative, and the hard-working.

The core of his point is really this bit which I’ll just repeat:

How would you feel if you were a local official or staff who fought that battle and won it, then your legislature made a change that required you to toss the results of dozens of public meetings, hundreds of individual conversations, a great deal of work, and thousands of dollars from the local budget to arrive at a new system (that has facilitated construction of hundreds of units)?

In other words, preemption treats all of this painstakingly earned local progress as irrelevant, as a blank slate. Now—I guess—my pro-preemption response would be, the fact that these local reforms took as much money and work as Nellis says is itself the problem. The work of local reform is itself a bad side effect of a completely ossified, byzantine system.

Yes, all of that work is noble, but it should not have been necessary, and if making it unnecessary in thousands of future local communities means nullifying that previous effort in a few—well, that’s more than worth it. We can’t be so defensive about our own hard work that we want to gatekeep future progress; that we think there’s something illegitimate about finding a future way to make that work easier.

Nonetheless, it may be the case that the harder the fight is, the more valuable and lasting the final arrangement will be. It may be that all of that on-the-ground local work does more to build an actual pro-housing attitude, even if its results are slower and smaller. Maybe it’s worth more to shift those attitudes and perceptions than it is to use politics to shortcut the process.

Then again, maybe that’s the conservative in me, and Marohn—that tendency to see “politics” as a little bit of a cheat code of sorts, a little bit disreputable. Maybe on some level the objection to preemption is that it feels like giving yourself a handout.

It’s honestly hard for me to tell how much of this is a conservative hang-up or a bit of puritanical work-ethic stuff, and how much it identifies something real about how lasting reforms work.

I don’t think any of it pushes me against preemption, but it does make me think about it more cautiously.

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Related Reading:

Urbanist Ecumenism

Urbanist Formularies

Top And Bottom, Big And Little

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