Twilight Zoning

A little background/refresher on zoning and development

I write so much here—every day except Sunday—and I often write with the assumption that you have some background on what I’m saying. For a lot of readers here that’s the case. But I probably shouldn’t assume that everyone knows some of the technicalities of zoning or other things like that.

So in today’s piece I’m going to write a little background on (part of) why I’m so critical of zoning, and why I view it as a departure from America’s previous approach to land use, rather than just some wonky policy area with ultimately relatively little impact. That’s what you might assume—zoning feels very arcane.

One Catholic woman with a more recent interest in urbanism told me that the only thing she had ever known about zoning was that it could be used to ban smut shops within a certain distance of schools, an effort she had once participated in. The idea that this same arcane body of law had also utterly reshaped the way we built our housing and our cities was hard for her to believe. But it’s true.

It’s true of the greenfield (i.e. previously undeveloped) land where we’re putting subdivisions, four-lane stroads, and strip plazas. But it’s also true in a more subtle and destructive sense of places that were built before zoning.

In these places—cities, towns, some of the early streetcar suburbs—the zoning codes in force today often reflect neither what actually sits on the lots they govern, nor the buildings likely to be built on many of those lots in the near future. Rather, the code represents a ploy to render most development discretionary—that is, up to the bureaucrats.

For the average homeowner or property owner, the zoning determines what they can do with their land. We have the absurd situation in a lot of cities where a huge amount of what’s already built could not be built again under the code as written. In San Francisco, for example, more than one-third of the city’s structures—disproportionately its most classically urban ones—would not pass muster under the current zoning code. It’s generally a good idea that law should reflect reality. If a law criminalizes something extremely common and expected, there’s a good chance it’s a bad law. What our status quo on zoning does is effectively criminalize everything we built right up until its inception.

As noted, if you’re a small property owner, this matters. You run into buildings which are literally standing there, but which are “nonconforming” under the current code and have been grandfathered. They don’t have to be torn down, of course, but if they burn down, or if you want to change their use or modify them, the current code will come into force. That could be fire safety; it could be off-street parking; it could be setbacks from the street, or the ratios governing lot coverage.

Some of this stuff is legitimate, but a lot of it is basically technocratic pseudoscience. It means if you’re a small business in a nonconforming building that burns down, the zoning will give you a hard time rebuilding it. It artificially renders our small-scale, classically urban fabric a nonrenewable resource. I think this explains at least some of NIMBYism—the idea that great places are zero-sum. Because our zoning basically says that.

But if you’re a large developer, things are different. I was talking with an actual developer—a good one, with a New Urbanist sensibility—and he was explaining special districts in his locality, and it involved hundreds of pages of code, exceptions to a subset of the code, references to other parts of the code in the exceptions that limited the exceptions, etc. He also said, based on experience from the industry, that most big developers are uninterested in or hostile to zoning reform. The process, as I’ve argued before, serves as an anticompetitive barrier to entry. It’s enough to make you wonder whether we live in a country with free enterprise.

But a large, experienced developer can absorb the cost of this thick process. They can use negotiations to get “rezonings”—that is, the locality will agree to change the zoning for a specific lot or assemblage of lots, for a specific project. Zoning has the force of law, in theory and in practice. Where else is the law so pliable and so up for grabs? “Look, officer, I really want to whack this guy, and I have a lot of money too. I’ll fund a park after his funeral.” “Alright, boss, have fun. But 50 percent of the park needs to have tree-shade coverage.”

In some localities, the zoning is more liberal, or there are special districts or other mechanisms by which large new developments can be proposed without rezoning per se. But in many localities, the zoning as written is so narrow that most of what actually gets built is shunted into a negotiation process, complete with interminable “public input” sessions.

I just want to say again that in no other area of law are the actual, written laws merely an invitation to negotiate. As much as any other kind of abuse or selective enforcement, this approach to land use and development diminishes and mocks the idea of the rule of law. And it abrogates, in most cases, on most land, and for most uses, any notion of private property and private enterprise.

So that’s a little background on why this arcane, wonky thing called zoning is such a big deal.

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Related Reading:

Three Generations of Separated Uses

Forty Pages, No Words

Book Talk

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