Zoning, defining “family,” and exclusion

Zoning is a tool municipalities can use to control what kind of developments – and by extension, what kinds of people – can be in their community. A recent law review article looks at how zoning guidelines extend to defining families for the purposes of who can live in a residential unit:

Today, when courts ask “what makes a family?” they often look beyond blood, marriage, and adoption to see if people have made other meaningful, familial commitments that qualify for the obligations and benefits that family law provides. As functional family law developed, cohabitation became one of the most important factors, if not the determining factor, in these kinds of cases. The problem is that zoning laws often prevent these same functional families from living together in the first place. Through this underlying connection to zoning, functional developments in family law are much more vulnerable than they appear.

“Formal family” regulations in zoning are pervasive, and come with the imprimatur of the nation’s highest court. In the 1974 case Village of Belle Terre v. Boraas, the U.S. Supreme Court ruled that municipalities can legally differentiate between related and unrelated families. In the intervening years, courts in 14 states have ruled that “formal-family” zoning is permitted by state constitutions, and the issue remains undecided in an additional 30 states. Only four state courts, in New Jersey, California, Michigan, and New York, have refused to sanction this form of discrimination, and lawmakers in Iowa recently became the first legislators to ban it. The Supreme Court has only revisited the issue once, in 1978, to clarify that the zoning definition of family cannot prevent blood relatives from living together…

The good news is that formal family zoning is of surprisingly recent vintage. There is a long history of functional family approaches to zoning in American jurisprudence, dating back to the early 20th century advent of zoning law. The first zoning ordinances didn’t define “family,” at all, and throughout the first 50 years of their operation, courts often ruled that functional families of all kinds—from gay couples and religious adherents to cult followers and sororities—could live together in peace. Even as “blood, marriage, or adoption” ordinances became more common, courts continued to rule that functional families fell within their wide interpretive ambit….

Formal family zoning is a familiar song—the same legal mechanisms that famously reinforced housing discrimination on the basis of race, also discriminate against families that vary from the nuclear ideal of a heterosexual couple raising their biological children. There is also compelling evidence that low-density zoning, like formal family ordinances, is a significant driver of racial and class segregation. In short, formal family zoning discriminates against non-normative families, but it also reinforces the racial and economic segregation effects of low-density zoning in general.

When they want to be, communities can be creative in developing zoning and other mechanisms that bring in the kind of residents and businesses that they feel fits their community (often along the lines of race and class).

I wonder how these family guidelines are related to zoning restrictions on overcrowding and the number of people allowed in dwellings. Court cases have dealt with this and it seems like the conditions could be similar at times to guidelines against functional families.

If functional families are not as desirable for some communities, perhaps another trend in households is more to their liking: the rise in single-person households. On one hand, suburban housing can be too big and not provide certain amenities like walkable places and public transportation. On the other hand, people in single-person households may use fewer public services and may be willing to purchase smaller, newer units (many suburbs want to build and sell condos and townhomes near downtowns or community focal points). Or, does zoning truly privilege the formal nuclear family in ways that do not extend to any other kinds of household configurations?

Can proposed legislation on housing prompt a public discussion?

A new bill proposed in the Senate by Elizabeth Warren attempts to address housing issues:

It aims to lower the cost of developing housing so landlords don’t have to make rents so high, coming at the issue from two different angles. From one end, it tries to increase the supply of affordable housing by pouring billions of federal dollars into programs that subsidize developments in rural, low-income, and middle-income communities.

From the other end, the bill attempts to strip away the zoning laws that made developing housing so expensive in the first place. Many of these zoning laws limit low-income residents from moving to wealthier neighborhoods. In Tegeler’s opinion, the laws are one of the main drivers of housing unaffordability. Those laws typically exist at a local level, so in order to target them, Warren’s bill creates a competitive block grant program. The grant money could be spent flexibly—on schools or parks, for example—and is intended to appeal to suburban communities with stricter zoning laws.  Those communities can only access grants if they reexamine and redress their land restrictions.

The bill also focuses on the ways housing inequality falls along racial lines. Notably, it assists populations that federal housing policy has historically failed: formerly segregated African American populations and families whose housing wealth was destroyed in the financial crisis. Under the bill, black families long denied mortgages by the federal government qualify for down payment assistance, helping many in formerly segregated communities to become first-time home buyers. The bill also invests two billion dollars to support borrowers still recovering from the financial crisis with negative equity on their mortgages.

The bill also restructures the Community Reinvestment Act (CRA), a 1977 law proposed to monitor banks with discriminatory loan policies against communities of color. Warren’s bill gives the CRA more enforcement mechanisms and expands its policing power to include credit unions and nonbank mortgage companies, which were not as ubiquitous when the bill was passed. Lastly, the bill strengthens anti-discrimination laws by expanding Fair Housing Act protections to include gender identity, sexual orientation, marital status, and source of income, attempting to limit housing segregation in the future.

It sounds like the bill tries to strike a balance between incentives for communities and developers and strengthening enforcement of guidelines against housing discrimination.

It will be interesting to see what tone the public debate takes, if it even reaches the level of public discussion. Housing issues are not on the national political radar screen. Historically, many Americans are reluctant to address housing concerns through the federal government. They would rather leave these matters to local governments, if government should address the matter at all. Support for public housing has always been limited.

Similarly, even stating an intention of trying to encourage certain suburban communities to open up their doors to different kinds of residents is a hard sell. Minorities and immigrants are indeed moving to suburbia but where they locate or can live is not necessarily even. (See this recent example from the Chicago suburbs of high black homeownership in certain communities.) A good number of suburbanites would attribute the residential segregation patterns to economic options and/or the ability of local communities to draw up guidelines of what kind of community they want to be (such as one without certain kinds of housing).

I would not expect such a bill to be an easy sell or even one that can garner much attention, even if it addresses issues that affect millions of Americans.

Wealthy Americans: “Zip code is who we are”

I would argue this is not just true of “the new American aristocracy“; where people live has a significant impact on their lives.

Zip code is who we are. It defines our style, announces our values, establishes our status, preserves our wealth, and allows us to pass it along to our children.

On an everyday basis, living in a certain location could affect these aspects of life:

  • social networks and local relationships with different groups of people (race/ethnicity, social class, similar interests)
  • schools
  • access to jobs
  • other local amenities such as community services, recreation, shopping
  • health

Now, the upper class may use their zip code in unique ways. The full paragraph that includes the excerpt at the beginning of the post suggests the zip code becomes a way to keep others out:

Zip code is who we are. It defines our style, announces our values, establishes our status, preserves our wealth, and allows us to pass it along to our children. It’s also slowly strangling our economy and killing our democracy. It is the brick-and-mortar version of the Gatsby Curve. The traditional story of economic growth in America has been one of arriving, building, inviting friends, and building some more. The story we’re writing looks more like one of slamming doors shut behind us and slowly suffocating under a mass of commercial-grade kitchen appliances.

This has been happening for decades in the United States as residents of particular races and ethnicities (primarily whites) and social class (primarily the middle and upper classes) had various mechanisms, now some illegal and others more nebulous (such as exclusionary zoning), to keep those they did not like away from their residences. And this will likely continue for decades more, perhaps particularly for the top 10%.

How postwar DuPage County used zoning to limit poorer and non-white residents

I was recently reading the 1976 political science book Poliscide and part of Chapter 8 on the postwar zoning practices of DuPage County caught my attention:

Although no county can place guards at the county line to inspect the socioeconomic and racial characteristics of newcomers, such powers as zoning and control over subdivision and building codes make the county a highly effective arbiter of the types of structures to be built and, hence, the final arbiter of the types of people who will live in its jurisdiction.

For example, DuPage County enacts a subdivision ordinance requiring a developer to retain a large portion of his prospective subdivision for public facilities such as parks and schools; the county combines this with a zoning ordinance requiring single-family dwellings and a large minimum lot size. This effectively prohibits a developer from profitably building anything but high-cost housing not accessible to lower-income persons.

Stringent county building code standards, requiring expensive building materials and high-quality plumbing, wiring, and heating systems, also serve to increase housing costs. The county’s industrial zoning policy restricting heavy industry serves to limit job opportunity for lower-income persons and to prevent a decline in residential property values surrounding an industrial development – which might create housing opportunities for lower-income groups. Moreover, the county’s relations with various financial institutions make it difficult for a developer to secure financing for a project not approved by the county. Indeed, because of the obstacles the county is capable of placing in the path of a developer, the county’s objection may be sufficient to convince a financial institution that investment in a project would be unwise.

The county’s relations with other units of government give it yet another means of influencing the course of residential and industrial development. It is not, for example, an uncommon practice in Illinois for the county forest preserve district to condemn, at the count government’s behest, land on which an unwelcome development is planned…. And courts have made it a point not to intervene. If the acquisition was for a “public purpose,” there is no inclination to examine the underlying motives. (179-180)

And, as the political scientists point out, these were all legal procedures. Local governments, whether at the municipality, township, or county level, often have the power to dictate what can be built on the land over which they have jurisdiction.

At the same time, there have been court cases seeking to reverse these zoning powers. In 1971, DuPage County residents and a local fair-housing group brought suit against the county for exclusionary zoning practices. The Mount Laurel cases in New Jersey led to famous decisions suggesting municipalities cannot completely restrict cheaper housing (even if implementation has been messy).

More broadly, Sonia Hirt argues zoning in the United States serves one primary purpose: single-family homes. When wealthier suburbanites or urban dwellers get the opportunity to live in the homes they want or ones that have plenty of desirable traits, they tend to resist efforts to include cheaper housing nearby. (For a more recent urban case, see Portland.)

To some degree, the plan worked for a while in DuPage County. The authors of Poliscide say the county was the 3rd wealthiest in the nation, businesses were growing, and much of the development was relatively high-end. Yet, things changed over time. In the 2010 Census, DuPage County was the 62nd wealthiest county in the United States. (It would be interesting to analyze what role zoning played in vaulting all those other counties above DuPage County.) In the same census, the white along population was just over 70%. Some of this might be due to how the authors of Poliscide suggest municipalities fought back against the county: they moved to incorporate themselves as well as annex land so that they took over jurisdiction of land and DuPage County had less control over new development.

Eight (unlikely and unpopular) policy options for addressing housing issues

After a recent conversation with colleagues prompted by reading together the sociological work Evicted as well as my own thinking about residential segregation, I wanted to put together a blog post summarizing possible policy solutions to housing issues. I am not optimistic but here are the possible options I see at multiple levels:

  1. Provide incentives for developers and builders. This is a common strategy across different government levels: builders and developers are given access to choice properties or are able to build higher-end housing if they build cheaper housing or provide monies that could be used for cheaper housing. A number of major cities, including Chicago, have such incentives. However, it does not seem to have made a major dent in the amount of affordable housing that is needed. I have heard that argument that governments have simply not offered big enough incentives – there is a tipping point where this could really push builders and developers to construct cheaper housing. I don’t think I buy this argument. Even though there is clearly a market right now for cheaper housing, why would builders and developers not try to build the priciest stuff they can to bring in more profit?
  2. Other market-driven solutions beyond incentives. I’m on the record here as skeptical that free markets can address issues of residential segregation and housing. Vouchers have their supporters since they theoretically would allow poorer residents to access areas of the housing market they otherwise could not. At the same time, introducing vouchers leads to other issues such as inflated prices/rents and negative reactions to those with the vouchers.
  3. Local government action. Municipal officials have a good amount of control over what can be built within their boundaries. However, they are constrained by (1) local residents who want to protect their community (examples of NIMBY in action here and here) and (2) limited budgets and revenues so they are typically trying to maximize property and sales taxes while minimizing use of social services. The biggest tool municipalities have are local zoning guidelines that often constrict what can be built (see recent suburban non-housing examples here and here). One way that wealthier areas exclude those who are not so wealthy is to not allow multi-family housing or set guidelines requiring larger lot sizes.
  4. Metropolitan action. Housing is really an issue that spans municipalities as the majority of people live in one place and commute to another for work (plus drive elsewhere for other amenities). Yet, metropolitan governance does not exist on a large-scale in the United States. Outside of a few regions, this is not a viable option: people in different communities do not have ways to collaborate nor would they necessarily want to. This is particularly true of wealthier communities. Residents would argue that this is the purpose of local government: local residents should get to make decisions about their own communities rather than handing off money and/or control to an outside body that wishes to damage their quality of life. See examples of how this can play out regarding affordable housing in one region and another involving transportation across a whole region.
  5. State governments. States could decide to impose regulations and guidelines but then they would have to overrule municipalities. This is difficult. For example, Illinois in 2004 an affordable housing guideline where every community was supposed to have a certain percentage of their housing stock within affordable limits. The guidelines could have been useful but they had no teeth and what counted as affordable was loosely defined. As this 2015 Chicago Tribune article suggests, wealthier communities did not submit to the guidelines and “Lee acknowledged that the agency has no authority to enforce the mandate if municipalities do not submit affordable housing plans.” Nothing really changed – and I’m guessing this was intentional.
  6. Federal government. Even though the United States has public housing, it was difficult to get off the ground and is not viewed favorably by many. That whole single-family homes fights communism thing plus the American ideal is everyone owning a home. Even if public housing had some successes, on the whole federal efforts have promoted white suburbs mortgages for single-family homes are subsidized. Results for federal initiatives involving vouchers, such as Moving to Opportunity, are mixed as many of the residents end up in similar poor neighborhoods and it is not clear if certain long-term outcomes such as education and employment are positively affected. Federal efforts consistently draw negative responses from conservatives. Operators in the housing industry – the National Association of Home Builders, the National Association of Realtors, lenders, and others – mobilize to protect the mortgage interest deduction and single-family homes. American Apartheid suggested we lack the political will to enforce the 1968 Housing Act and thus we still have discrimination in housing (from mortgages to real estate agents to landlords and more).
  7. The court system. Given the relative lack of action by local and state officials, housing and zoning cases do occasionally make it to state and federal courts. I argued a few years back that I could envision the Supreme Court approving inclusionary zoning (I’m not sure I still think this given the current makeup of the court). They can indeed take action and compel other governmental bodies to address issues. Some famous cases include the Gatreaux case in Chicago where a court ordered scattered-site housing and the Mount Laurel cases in New Jersey combating exclusionary zoning. The problem with these is that they require taking legal action in the first place, they can take a long time to litigate, and while the results may be compelling, they are still often viewed unfavorably and putting the changes into action are not easy.
  8. Non-profits and religious groups. Either sets of groups have limited resources – housing is a very expensive proposition on a large scale – or are more interested in other concerns. Groups like Habitat for Humanity may do good things but they can only build so many houses and not all communities or neighborhoods are welcoming to their projects. Churches, particularly big ones, could access a good amount of resources but housing is more of a structural issue that many conservative Christians may not want to get into.

All of these options are difficult to implement. On the whole, many wealthier suburbanites and urban residents do not want any kind of cheaper or subsidized housing in their neighborhoods or community.

If I had to pick two levels that provide the best opportunities, I might go with local government and the courts. Zoning guidelines are often developed by average citizens sitting on local committees. Get named to such committees and you can influence this process. The courts are a way to get around the unpopularity of introducing cheaper housing as such measure are unlikely to find broad support. At the same time, as noted above, the court route has its own challenges.

Perhaps the most daunting option in my mind is trying to influence the federal level. Does any political party talk seriously about housing? After all, one journalist captured this quote:

The former governor of the Bank of England, Mervyn King, told me this: “Most countries have socialized health care and a free market for mortgages. You in the United States do exactly the opposite.”

It will be hard to alter an entire system based on providing socialized mortgages for the middle-class and above.

My prediction: courts and SCOTUS would rule in favor of inclusionary zoning

Opponents to inclusionary zoning laws are hoping their case makes it to the Supreme Court:

Developers in California are taking their fight against the state’s inclusionary zoning laws to the U.S. Supreme Court, just as cities across the nation are increasingly committing to similar laws to address affordable housing shortages. The California Building Association opposes the soon-to-kick-in law mandating that developers discount a percentage of units in new housing projects for low-income families. They claim it constitutes an illegal “taking” of private property by the government and hope that SCOTUS justices will agree with them

California’s Supreme Court rejected this argument in June, pointing to an affordable housing crunch of “epic proportions” as the compelling reason for the law. The supply of housing that families of modest income can actually afford is so low that advocates in San Francisco are considering suing the suburbs to intensify density.

But the California developers say that forcing them to build below-market-rate units as a condition of obtaining building permits amounts to extortion. Developers in Chicago are also making this argument, and have similarly filed a lawsuit against the city’s inclusionary zoning laws. In California, the homebuilders are also challenging the idea that there is a connection between new housing construction and affordability. In an interview with CityLab earlier this month, Steve Joung, CEO of Pangea Properties, a company that rehabs old buildings into new moderately priced housing, said there is a connection—but not the one that inclusionary zoning proponents would favor…

If SCOTUS agrees to review the California case, however, it could slow momentum around such plans. And if SCOTUS ends up agreeing with the developers, it could drastically change the current calculus around how to increase the supply of affordable housing.

Though it is hard to know whether this would actually reach the Supreme Court, I predict the developers will lose in court. I anticipate this result due to two reasons:

  1. The United States has few other mechanisms for addressing affordable housing even as it is a pressing issue. The free market clearly does not work. The federal government doesn’t want to provide much housing. Non-profits or community groups can only provide so many units. For decades, there has been little incentive for developers or communities to provide cheaper housing. In contrast, they can make more money with more expensive housing units and promote and/or protect a higher social status.
  2. Prior court cases have determined that developers can be made to provide other things to local governments in order to be able to build. For example, Naperville was a pioneer in the 1950s in having developers pay for some infrastructure (sewers, roads, etc.) and then several decades later asking for donations of land or cash to help build schools. Both decisions were fought in court by developers and the courts ruled in favor of the municipality. Additionally, other decisions have gone against exclusionary zoning practices that try to promote bigger lots and more expensive housing units.

This will be interesting to watch.

How to get wealthier communities to accept affordable housing

This article discusses two tools to promote affordable housing in wealthier communities: regulations and lawsuits.

But Massachusetts has a work-around: A state statute, called 40B, allows developers to get around exclusionary zoning and build affordable housing in communities where only a small percentage of units are considered affordable. (A few other states have similar policies.) The statute, passed in 1969 and upheld by the state’s Supreme Judicial Court in 1973, has led to the construction of 1,300 developments throughout the state, containing a total of 34,000 units of affordable housing, according to Citizens’ Housing and Planning Association, or CHAPA.Projects built under 40B are almost always controversial: The statute was enacted in the first place because most communities outside of big cities didn’t permit multi-family housing, said Ann Verrilli, the director of research at CHAPA. Even with the statute, communities often spend millions of dollars in legal fees to try and stop the projects, Verrilli told me…

The experience of developers trying to build affordable housing in Massachusetts takes on added significance now, as housing advocates wait for a decision on a landmark case in front of the Supreme Court that concerns where low-income housing projects are placed. The case, Texas Department of Housing and Community Affairs v. The Inclusive Communities Project, arose when a nonprofit housing group sued Texas, arguing that the state primarily distributed tax credits for low-income housing projects in minority-dominated areas. Inclusive Communities argued that doing so perpetuated segregation and violated the Fair Housing Act, which was passed in 1968 to prevent landlords, municipalities, banks and other housing providers from discriminating on the basis of race. The Supreme Court case centers on whether this discrimination has to be intentional in order to be illegal, or whether the Fair Housing Act also seeks to prevent policies that may not be intentionally discriminatory, but that have a “disparate impact” on minorities…

Many affordable housing units in the suburbs are a direct result of court cases, and even enforcement of those programs are lax. In 2009, Westchester County in New York signed a desegregation agreement and agreed to build and market hundreds of apartments for moderate-income minorities after a court found it had misled HUD by applying for funds that it said it would use to integrate housing, and then did the opposite. Four years later, the county had not complied with the provisions.

The shift from discriminatory race-based housing policies to economic ones in the 1960s and 1970s was an important one. I suggest reading David Freund’s Colored Property: State Policy and White Racial Politics in Suburban America. This is the logic still used today: better off residents argue that they worked hard to get to their higher quality of life and that others should have to do the same. But, since race/ethnicity and social class are inextricably linked, keeping out the lower classes through big lots, expensive properties, a lack of apartments, and other methods leads perpetuates residential segregation.

Two other relevant points from this article. First, affordable housing in the suburbs can be done well through good design and not high levels of concentration. Second, given the resistance to such projects as well as design guidelines that are helpful, still nowhere near enough affordable housing has been constructed. In one sense, the foot draggers of wealthy communities are winning because they have slowed down a process started by the courts in the late 1960s (the Gautreaux case) and 1970s (the Mount Laurel case). Plus, the wealthy can move easily if their properties are threatened.