Is Zoning a Contract?
The idea that zoning is a future promise to arrest all change is radical
A week or two ago on Twitter, one user suggested that zoning constituted some sort of “contract” between the municipality and a homeowner—i.e., that people who move into a neighborhood under the existing zoning code have a right to expect it to remain the same, given that its current state factored into their decision to move there. This implies that, in some sense, you’re not just buying your house, but buying the entire neighborhood, in that current state.
This was suggested by a fellow who could accurately be identified as a NIMBY. A pile-on ensued. As you might expect, most urbanists found this idea of zoning very wrong. One can obviously understand a desire that things basically stay similar and familiar. But the idea that zoning includes, or should include, some sort of legal requirement to take this desire into account is simply not borne out by the concept’s history. Zoning is based in the state’s police power, making it, in theory and practice, a fairly heavy-handed power enjoyed by governments.
There’s a similar, somewhat more sophisticated argument, similar to “zoning is a contract,” that I’ve often come across myself, usually from conservatives or pro-sprawl libertarians. They argue that changes to zoning that, say, lower their property values, are “regulatory takings,” i.e. the government destroying private wealth through regulation without literally taking it.
This is a real legal concept. But ironically, the only thing I could find about an actual use of this argument in court was a land owner who claimed that the government not zoning her property for residential development was a regulatory taking. In other words, the claim is more credible coming from a developer who is being prohibited from developing their land to its full value, than it is from a homeowner who doesn’t want multi-family housing nearby under the supposition that this will harm their property values. (And in any case, the opposite is often true—more permissive zoning raises the value of the underlying land.)
All of this, however, seems to point to something higher-level. I understand why homeowners might not want zoning changes to occur. Sometimes they have bad motives, yes, but sometimes they just feel, in a vague way, that they did buy the neighborhood. And the reality is that our whole way of thinking about housing and land use tends to back up this impression. I don’t laugh at people who make this argument, because I can understand, given their mix of perceptions and incentives and narratives, why a new zoning code really can feel like a betrayal or a breaking of trust.
The problem is not that homeowners feel this way. The problem is that the conditions exist for this feeling to seem reasonable or logical.
There’s a joke that everybody who moves to a quiet, low-density community wants to be the last person to do so. The obvious impracticality of this idea suggests that something has gone wrong. We’ve effectively used zoning to create places that would not otherwise exist, at least not at the same scale and same number. A subdivision of single-family houses, cut off from any sort of urban fabric and without any mix of commercial enterprises, is not a natural phenomenon. Such a place, locked up in its exact current state for perpetuity, is an absolutely artificial arrangement.
Zoning creates the idea that there are and should be entire places that should look and feel a certain way forever. This is the crux of the problem. That isn’t how neighborhoods or communities or cities grow. The expectation that you’re “buying a neighborhood,” and that the bargain includes the right to freeze in time every aspect of the whole place, flies in the face of how we build truly great places. If we took this approach from the beginning, we would never have built most of the places Americans now love: places we love but can’t imagine building today. I referred to this phenomenon here as “inhabiting old ghosts.”
The folks over at Strong Towns have a way of thinking about this, with two rules. 1: No neighborhood can be exempt from change. 2: No neighborhood should experience sudden, radical change. This is prescriptive, but it also describes how most towns and cities were built in the pre-automobile era. It’s so obvious and natural that it should hardly have to be described. What is radical is the idea that zoning is a future promise to arrest all change.
Now am I suggesting that zoning should be abolished? Well, no. It’s a question of degrees. But there’s a huge difference between “no slaughterhouses next to residences,” and “no delicatessens in the C1 zone” or “no more than four unrelated people may live in one house.” You’d be hard-pressed to believe that this is a free-market country after reading the average municipality’s zoning code.
That’s what has to change, as well as the radical ideas about land use and neighborhood change that follow from it.
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Northern Virginia is a Real Place
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