Tariffs And Zoning
Further thoughts on lawlessness in local government
I’ve been thinking further about a couple points related to zoning, and the critique of the status quo on zoning in America. This is not a new point, but I’m thinking of a slightly different dimension to it.
Zoning scholar Nolan Gray has made a version of this point, with regard to discretion in zoning. I wrote this after attending a panel where Gray spoke:
Gray noted that older zoning/planning literature (from the 1970s and ’80s) talks about corruption a lot. When very little is allowed by right, and almost everything is discretionary, you get corruption. We need “certainty as to what is and is not allowed.” In other words, restrictive zoning might feel like a defense against bad developers, but it actually empowers them.
What I’m thinking through today is related, but goes a little further. I’m thinking of this bit from my recent anniversary-week piece on attending a public input meeting for a housing proposal in my neighborhood. In that piece, I emphasized that my problem wasn’t with the NIMBY bent of the commenters, but with the overall process itself. (Not all of the process can be reduced to “zoning,” but that’s a major element of it. When I say “zoning,” sometimes I mean something bigger, like “the whole land-use/development process.”)
Anyway, this is the part I want to expand on, and especially the last paragraph in this excerpt:
Building the proposed apartment building would require a rezoning of the land in question. Now I said there should be clear rules. You could say, there are clear rules—the land isn’t zoned for an apartment building, so instead of trying to rezone it, just don’t do it. It’s not permitted.
That would be fine if the zoning were sensible in the first instance, and if rezoning, like a variance, was a last-ditch or special process in a narrow number of cases. But the problem is that rezoning has become a common part of the general process of building. We have an overly rigid ruleset with too much discretion built in: the rules are effectively designed to be broken, but without a clear, rule-bound process governing when, how, or why they get broken.
In few other instances do codes which have the force of law function to induce negotiations or concessions, rather than to clearly lay out what is and isn’t allowed. In a very real sense, there is something lawless about the way zoning typically operates in the United States today.
What writing this out made me think of—or maybe I wrote it because I was thinking about it—is the discourse around the tariffs that have been in the news and wreaking havoc on the stock market and probably on business decisions regarding trade and imports/exports. There’s the same argument, about predictability and a stable climate in which you can make business decisions about the future. And there’s the argument about corruption and insider trading and the prospect of tariff carve-outs as a way to extract political or economic favors. Which are all kind of practical arguments for a stable, rulebound rule set.
But there’s also a deeper philosophical argument than the points about corruption or insider trader or special deals. There’s the argument that this is a pretty fundamental rule of law issue. Tariffs, like zoning codes, have the force of law. Obviously laws can have very political ends. But it’s one thing to, say, use tariffs to protect the steel industry (for prestige, or national security, or union pressure reasons), and another thing to have an entire tariff regime that functions not to raise revenues or protect industries deemed nationally important, but rather as a kind of feint to either negotiate trade deals down the road, or as a system of maximum discretion to give a certain legitimacy to crony dealings with companies and executives.
If you’ve been following the news, you’ve probably heard some of this commentary regarding the tariffs. What really strikes me is how similar that all is to how zoning works: the zoning system in America functions like President Trump’s tariff system. The code is not written with the expectation that it will be followed. It is written to induce negotiations or bargaining with developers, or to extract concessions. It takes the law and uses it in a manner which is not consistent with the rule of law.
So when I say the zoning status quo is “lawless,” I mean something more than “petty local government bureaucrats have too much power over private property.” (Though that is true.) I mean that amid all of the talk in national politics about the rule of law, we have gotten far to used to lawlessness at the local level, with regard to zoning and development. We govern something as basic as housing and development with a system in which the law as written does not in reality indicate what is permitted. In which neutral, technocratic mechanisms and processes of law have been completely coopted for petty political ends.
It makes me wonder, if we tolerated and even embraced this so easily, how much we are committed to, or even understand, the bedrock American principle of government of laws, not of men.
Related Reading:
Three Generations of Separated Uses
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On the other side, as well, the lawlessness encourages NIMBYs to abuse the process. If the process is always going to be broken, then they feel no compunction about abusing every last stop in it to get their way.
In a very real way, the NIMBYs enter the lawless negotiation.
Addison, this is bittterly unfair to thousands of hard working local planning commission members and professionals who spend some long evenings in public service. My reading of you, though, is that you will listen to what I have to say. I will also answer Kent's question as I go.
There is corruption in some local governments, in places where corruption is the rule. That's not about the system, whether it be the system of land use regulation or the system of taking bids on public works. Its about a particular community culture.
What you describe is vastly more often about a different flaw. This flaw can be described in many ways, but I'm going to call it the Let's Not Reinvent the Wheel flaw. Most local land use regulations, despite the fact that hundreds of thousands of dollars may be spent spiffing them up, are awkward accretions of customary practices that go back to the 1920s. It is not unheard of, mostly in small places, to come across a local ordinance in which someone forgot to change the name of the city from which the ordinance was copied.
What underlies the "lawlessness" you observe, is more akin to laziness than to corruption. There is also a desire to save money, which local governments generally try to do. I told a story about this in the February 1 edition of my newsletter. The upshot of "not reinventing the wheel" is that city after city copies zoning language, the origins of which are hard to trace, and that unhelpful underlying assumptions are adopted along with that language.
The most fundamental of those assumptions is that nothing should change. And so, as you have seen and reported, every significant project has to be preceded by a zoning map amendment. That's slow, but worse than being slow, map amendments are legislative acts that are generally subject to few guidelines other than, in some states, a vague statement that they conform to a master plan. This means that the elected officials are going to be inundated with either NIMBY emotion (to not make the change) or property rights emotion (to make the change), or both. How it plays out depends on local culture. It also means that efforts to improve the decision making system will be resisted. I'll get back to that.
It does not have to be that way, though. My town adopted an entirely new approach to zoning in 2009. I am quite familiar with it because I wrote it. There has been one zoning map amendment in all the time since, almost 15 years. And that amendment was brought forward by the Town Planner because changing conditions that I did not correctly anticipate were making the initial zoning inappropriate, sticking people in an area with residential properties that needed to change use, but couldn't.
So, Williston, VT has accommodated over 1,000 new dwellings and hundred of thousands of square ft of industrial and commercial with only one small map amendment in 15 years. The system you are seeing in action simply is not necessary, though it is most typical.
Part of why it is typical is that there is resistance to better zoning. A friend of mine helped a city out West adopt the same type of zoning used in Williston. It was a smashing success for a decade or so, but was repealed because the NIMBYs hated it, and eventually elected a council that agreed. It took most of the emotion out of the system, and as you know, NIMBYs run on emotion. I have run into that same resistance myself in other places.
That's more than enough. You should take a road trip to VT after the weather improves, and see how it works, and what has been built. I think you would be pleasantly surprised.
Making the switch in an environment as large and complicated as yours would be quite a project, but you're generalizing from your local experience to a broad conclusion that doesn't have to be true.