More On Zoning And Subsidiarity

Reader responses to the question of zoning as a level-of-authority issue

Last week, I published a piece here titled “Zoning And Subsidiarity,” kind of thinking out loud on whether the problem with zoning is the level of governmental authority at which it operates. Here’s a long-ish excerpt to give you the core of what I wrote there:

Wikipedia has a good simple definition: “Subsidiarity is a principle of social organization that holds that social and political issues should be dealt with at the most immediate or local level that is consistent with their resolution.”

Subsidiarity is often taken to mean localism, and it is often used in the context of advocating for the devolution or decentralization of political or economic power. However, as both of those definitions imply, there are cases where the level of authority consistent with the resolution of a problem is going to be above the local level.

Zoning may be one of these instances. Now I’ve seen an interesting argument that zoning should be devolved below the local level to the hyperlocal level: something like every block or street having its own decision-making powers regarding land use, which would supposedly create community buy-in and collaboration rather than NIMBYism. I don’t know about that. I find it hard to believe that zoning is functioning at too high or distant a level.

Rather, I think it’s an interesting argument that subsidiarity suggests zoning powers should operate further up the chain. This idea exists, of course, and typically it’s called preemption. California has passed several state laws which in various ways preempt elements of zoning….

The purported purpose of zoning is not to stop development, but to guide it. The fact that NIMBYism and the local land-use process do function to stop or slow development is not just a reflection of the will of localities, though it might be. The problem is that housing is a regional issue. What local zoning powers do is sever housing from the rest of the regional economy. So that’s one way in which it’s inappropriate for land use powers to reside with localities.

This is probably the core of my argument or supposition in the piece:

NIMBYism is what happens when a regional power is devolved to a hyperlocal level. It’s a mismatch. Of course people will want all the economic growth and amenities but none of the construction noise or increased traffic or reduced parking. Vesting land-use powers at too low a level creates an apparent hack, where you can get something for nothing. Soliciting public comment from specific neighborhoods for regionally important proposals which happen to be in those neighborhoods is almost a metaphysical error about what a city is.

Now I want to share a few interesting comments I got on the piece, as well as point you to a great full essay response from YIMBY Action board member and urbanist writer Jeff Fong.

First a few comments. Here’s one from another country, suggesting that local zoning is a problem, but also raising the related issue of metro areas being composed of a number of different localities (which is maybe a whole other discussion):

Auckland NZ, where I live, is often quoted in the last few years for the positive effect that extensive upzoning is having on housing affordability. While the upzoning is the direct lever that enabled this outcome, a major precursor was amalgamation of multiple city authorities into a regional scale authority - in effect, zoning was elevated a level up.

Without this, zoning was more scattered, inconsistent and unpredictable. There's now talk of national definition of zone types, more akin to Japan.

This one, from Ryan Puzycki, who also has an urbanism-focused newsletter, takes issue with the idea of choosing a level of authority for zoning to operate at, because he takes issue with zoning:

Here’s a counter-take: zoning should be devolved to the lowest level of all—to the individual property owner. In other words, there’s no proper level of government at which zoning belongs.

I don’t think I would go that far. But perhaps this gets you into a question of definitions. The Japanese zoning code, for example, is extremely permissive and also very clear as to what is and isn’t allowed. (Which is to say, two things that American zoning is very much not.) I think very few American urbanists would insist on zoning abolition over a radically simplified, mostly national-level zoning code like the one in Japan.

But what I mean by definitions is that the Japanese approach is so utterly different from the American, that you almost couldn’t call them both the same thing. And likewise, when Ryan, or zoning scholar Nolan Gray in his book, say there should be no zoning, they don’t mean there should be no rules about building things at all. I wonder how much of a difference this makes given that the actual results of either approach would probably overlap.

Here’s a comment that agrees with the usefulness of subsidiarity as applied to zoning, but notes that that doesn’t tell exactly what should happen with zoning policy:

This is very much the magic of subsidiarity as a concept, since it’s not just an ideological “yes or no” but instead has nuance. In this case, it recognizes locality problems when it comes to tragedies of the commons or, on the other side, prisoner’s dilemmas and first mover disadvantages wherein adjacent towns are unable to implement needed reforms due to becoming a lightning rod when they do. Such as when one town allows affordable housing but others don’t, meaning that only that town gets affordable housing, which can lead to poverty concentration. Meaning that none of them make the change for fear of being first.

Having clear reasoning for higher levels of government to step in make for opportunities to avoid these problems while still favoring localism where it does make sense.

The disadvantage of being a first mover is a very good point. It’s a related point to local politicians having a small voter base who can very easily punish them for rocking the boat. The level at which authority operates creates incentives not to do anything, basically.

And here’s a comment from someone who sits on a township board of supervisors in Pennsylvania:

We discussed this at our last township supervisors meeting (East Lampeter, PA). Our state organization (PSATS) had a resolution opposing any state legislation that would amend our municipal code to require multi-family housing in commercial areas and increased density (ADUs, duplexes, quads) in residential areas. After some discussion, we voted to oppose the state organization's position.

I commented that I supported the state changes and would also prefer zoning at the county level, rather than the municipal level in PA.

I’ve always viewed subsidiarity as the organizational entity closest to the problem, capable of solving it, should be empowered to address it. In the case of restrictive zoning, local jurisdictions have a track record of being unable to solve the problem. Therefore, the authority should be moved to the next level of jurisdiction.

That last bit is great. It states outright what the crux of my own argument is: localities quite obviously have failed to use land-use powers for their alleged purposes, which is to guide and form urban growth, not arrest it. A good (philosophical, and possibly legal) argument can be made that they have forfeited those powers—that in legally preempting those powers today, counties or states are not really taking anything at all but more like withdrawing delegated authority which has been manifestly misused.

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Now here’s Jeff Fong’s response, which is worth reading, but I’ll pull and discuss a little bit:

Addison then goes on to say:

“NIMBYism is what happens when a regional power is devolved to a hyperlocal level. It’s a mismatch.”

To which I respond…kinda. (warning: this is about to get pedantic)

My reformulation of the statement would be: NIMBYism is what happens when a regional power is devolved to a hyperlocal level given our existing political economy.

There’s an alternate timeline in which a butterfly flapped its wings three seconds earlier and the Georgist movement of the late 1800s actually won. In this world, cities would have begun to fund themselves through land rents, creating municipalities oriented toward positive-sum growth.

Instead, we got institutions built to segregate people by race as well as class and designed to extract wealth from some and redistribute it to others. And this is a point I always feel is worth belaboring: most of the bugs in our current system exist because, for the people who originally built them, they were features.

The point here, if all that doesn’t mean much to you, is that the zoning system we actually got was premised, at least initially, on racial and class exclusion, and it was understood as such by many of its originators and early boosters. That does not mean that “zoning is racist” in some general sense. What it does mean is that American zoning today is continuous with early American zoning, and it inherits an operating system or architecture that is bent in the direction of not creating affordable or abundant housing, or good, dense, mixed-use urbanism. Because its originators explicitly did not want it to do that.

Just a little diversion here, but this is pretty much a matter of historical record and is not an ideological judgment or interpretation. The first zoning law in the United States was designed to precisely exclude Chinese-owned laundries from white neighborhoods. Racial zoning (i.e., literally “no blacks in this neighborhood!”) even existed early on, and was struck down by the Supreme Court in 1917. A few years later, given zoning reimagined in facially neutral terms and not directly regulating things to do with race or class, the Court upheld it. So there’s that.

To go a little further, Fong is suggesting that it’s difficult to say for sure that “zoning” should operate at any given level of government; just that the actual historically contingent zoning system that evolved in early 20th century in America is broken. Perhaps we can’t make abstract decisions about power and authority based on one specific and badly flawed policy framework.

More Fong:

It’s not exactly accurate to say devolution of land use authority to city governments is the problem. I’d say, instead, that devolution of land use authority to city governments running governmental operating systems that were purposefully structured to extract rent and externalize costs is the issue.

All that said, none of that changes what we need to do. Addison is unequivocally correct that state authorities need to override housing resistant local governments. Ultimately, I suppose I’m just quibbling over why I think he’s correct.

These are some very good points, and perhaps they point back to either zoning abolition or Japanese-style national zoning (which, again, might in practice end up being the same policy regime).

I don’t think too much should be made of disagreements over terminology or framing, given that the underlying substance of the arguments, and the likely real-world outcomes, would be very similar between all of us, if we were in charge of the land-use regime (see, I didn’t say “zoning” regime).

But I do think ideas and rigorous thinking are important. So this was fun!

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Related Reading:

Three Generations of Separated Uses

The Fairfax Teardown

Mayberry Wasn’t a Subdivision

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