Zoning And Subsidiarity

At what level of government does zoning belong?

Yesterday I teased today’s piece:

there is a large constituency—people forced out or excluded from high-cost cities—which is effectively not represented, and which is more excluded as representation gets more local. Maybe there’s a level of representation that’s less defensive and parochial and more conducive to thinking about the prospering of the whole region. (More on this issue in tomorrow’s piece!)

So here are those thoughts.

Subsidiarity is a philosophical/political principle that is one of the core ideas in Catholic social teaching. The bishops define it this way:

The principle of Subsidiarity reminds us that larger institutions in society (such as the state or federal government) should not overwhelm or interfere with smaller or local institutions (such as the family, local schools, or the Church community). Yet larger institutions have essential responsibilities when local institutions cannot adequately protect human dignity, meet human needs, or advance the common good.

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.

Preemption is a bit of a misnomer, because it implies that a power that properly belongs to localities is being, well, preempted, which has a connotation of being maybe wrongfully blocked, nullified, or taken away. Land-use powers were devolved to localities by state laws, known as zoning enabling acts, which devolved state-level powers to the localities. This, to me, implies that it’s perfectly legitimate to “de-devolve” those powers in cases where localities have abused them.

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.

Another is the fact that local politicians represent a small number of people, and local elections can be swayed by a very small number of local players. Vesting power over a regional issue in such a small number of people is not exactly democratic. Nor is the fact that almost by definition, this process offers no representation to the people who would live in a locality if the housing were more abundant and more affordable. That representation—would-be residents of [X County/Town/City] who are currently priced out or who were pushed out—is hard to capture, but those people, at least in the aggregate, become more apparent when you think about housing (and job markets, and commuting patterns) regionally. It’s like the inverse of trying to poll the dead in a natural disaster about the effectiveness of the disaster response. The process is missing a lot of elements and factors that are really there.

These points considered, I think there’s a difference in both the framing and the substance of the argument between “We should take these powers away from local governments” and “Land-use powers may properly belong to a level of government higher than localities.”

What I’m suggesting, then, is that the American housing crisis is downstream of a failure of subsidiarity.

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. Perhaps it even generates opposition: Hey, you asked me for my opinion, I don’t like it!

What do you think of subsidiarity as a useful framework for understanding why the housing/zoning process in America is broken?

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Related Reading:

If You Build It, They Won’t Care

Metro Areas Are Places

Hyperlocal Patriotism

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