What would happen if the Supreme Court addresses inclusionary zoning?

A legal case involving zoning in Marin County, California may make it to the Supreme Court.

Back in May, authorities in Marin entered into a new voluntary compliance agreement with the U.S. Department of Housing and Urban Development to build new low-income housing outside areas where black or brown residents make up the majority. This is now the county’s second big push since 2010 to satisfy the government’s demand that it work on desegregating its affordable housing.

Fair housing is a challenge for Marin, an enclave of million-dollar bungalows across the Golden Gate Bridge from San Francisco. According to a nonprofit project called Race Counts, it has the highest racial disparities of any county in California. That’s in part because Marin County doesn’t want to build any housing. Homeowners here are at the forefront of NIMBY efforts to stop plans for new construction, whether they’re local, regional, or statewide.

The county’s iron grip on its land is the backdrop for a case that may soon appear before the U.S. Supreme Court. Back in 2000, two Marin County property owners, Dartmond and Esther Cherk, looked to split their undeveloped land into two single-family-zoned lots. As developers, they were liable to preserve some part of the property for affordable housing or pay into a low-income housing production fund. The fee was nearly $40,000; the Cherks sued.

The Marin County case may test the constitutionality of inclusionary zoning, a tool that local jurisdictions rely on to expand the supply of affordable housing, especially in tight housing markets. The court has expressed an interest in the case, which the justices may wind up using as a wedge to reshape property rights. It’s possible the inclusionary zoning ordinances—and local regulations more broadly construed—will not stand under the court’s scrutiny.

I’m on the record suggesting the Supreme Court would approve inclusionary zoning. While this piece suggests conservatives on the court might be spoiling to affirm property rights, the courts more broadly have helped develop plans to promote more affordable housing (think the Gautreaux case in Chicago or the Mount Laurel decision in New Jersey). Earlier decisions did not eviscerate property rights but they did suggest that the responsibility for housing was wider than a single community and its zoning. Additionally, having developers pay a fee into an affordable housing fund or provide some units of affordable housing as part of the larger project is common practice across American communities.

Beyond just the actions of Marin County and its own housing supply and population composition, the bigger issue is this: if a community or township or county restricts development and/or housing, it puts a bigger burden on other municipalities in the same metropolitan region to provide housing. And if many municipalities refuse certain kinds of development, more affordable housing ends up in a limited number of places that are (1) not necessarily located near jobs and (2) relatively lower-class. Housing is an issue best tackled by a whole metropolitan area (as are other issues including mass transit and transportation). More dispersed outcomes would likely lead to better outcomes across the region with the biggest loss being the communities that cannot easily remain as exclusive as they would like.

 

Recurring issues with teardown McMansions

What if a suburban community continues to face the same issue of teardown McMansions angering neighbors? The case of Arlington Heights, Illinois:

Elgas called the home dimension differences “a form of gentrification” and asked the board to consider changing the building codes to prevent the number of larger homes being erected in Arlington Heights…

“This is not the first time it has come up as a phenomenon in Arlington Heights,” said Mayor Tom Hayes. “It’s probably 10 to 15 years ago this phenomenon first showed itself, not just in the village of Arlington Heights, many neighboring municipalities experienced the same issue with tear downs. We were sensitive to the issue at the time; we did a number of different things from legal, building, zoning and design, we addressed it at that point.”…

Charles Perkins, director of planning and community development, said the village had a task force that studied this issue with members from the Zoning Board of Appeals, the Plan Commission and village trustees. The leaders took bus tours around neighborhoods to view the tear downs and changes. As a result, he said, there were a number of changes made to village codes.

“We reduced the number of square footage you could put on a home, minimized impervious surface, and in the R3 district, which is this particular neighborhood, there was a 10 percent reduction on the ability of square footage of a home built on the lot,” Perkins said. “Those in single-story neighborhoods, typically go to the design commission for the architectural component of the home as well.”

This is not an issue facing just Arlington Heights: wealthier suburbs with older housing stocks can often be attractive to residents who have the means and desire to tear down older homes and construct new and often larger homes. And the teardowns can move in cycles, depending on changes in the housing market, what neighborhoods or communities are desirable, and how communities – including local leaders and neighbors – respond to such moves.

Three additional thoughts:

  1. The term McMansion is not used the article but this is the sort of home that is at issue here. A teardown home with a large footprint constructed in a neighborhood of smaller homes fits clearly within an understanding of McMansions.
  2. The community has some guidelines for new teardowns but not all neighbors think these go far enough. This is a common point of tension: should the property owners have say over their plot of land or should the community and neighbors be able to put in significant restrictions? Who gets more say can become a long local political process with the possibility for long-term bitterness.
  3. While neighbors might generally not like this development, this could be taken as a sign by leaders of a community that their community is desirable. Particularly in communities with limited opportunities for greenfield development, teardowns and infill development can represent a significant portion of change.

Cooking meat in a suburban backyard and resolving suburban conflicts

A recent controversy in an Australian suburb highlights two key issues in suburbia: (1) what exactly can you do in a suburban backyard and (2) how do suburbanites resolve conflict? To the details:

The Perth woman said she couldn’t enjoy her backyard in the suburb of Girrawheen, claiming her neighbours deliberately allow their barbecue meat and fish smells to waft into her yard…

After her claims were rejected by a tribunal earlier this year on lack of evidence, she applied to the Supreme Court of Western Australia for right of appeal. It was also turned down in July…

And it’s not just the smell of meat and fish that has made her furious — it’s the smell of cigarettes and the sound of children playing with basketballs…

Mr Vu said he just wanted to “keep the peace” and had removed the barbecue out of his yard and also banned his children from playing basketball…

Mr Hammond said the first step in any dispute with your neighbours was to try and resolve the matter face-to-face.

Two issues are present:

  1. Suburbanites tend to assume that backyards are for private activities. The front yard is open to the public and can be seen from the street and the sidewalk. The backyard is more hidden, particularly if the yard is fenced or cut out from view in other ways (such as through hedges and trees). But, are there limits to what can be done in backyards? What is considered infringing on others? Overly loud dogs? Trees that cross property lines? Activities found undesirable by neighbors (such as grilling and playing basketball)? Where property rights end and neighborhood disturbances and nuisances begin could be a fine line (and there are surely some local regulations to help figure this out).
  2. Suburbanites are often not great at resolving conflict. Baumgarner argued suburban community is built around avoiding open conflict and using third party actors if necessary. It is not clear from the article above how much face-to-face interaction happened between neighbors but appealing to the courts seems likely to end badly for neighborly relations: no matter who wins, the fact that this led to media coverage and court cases likely makes it more difficult to have positive relationships.

On one hand, this is a small-scale conflict. On the other hand, multiply such conflicts by just a few and the suburbs look like a place where neighbors want to be protected from each other – wait, privacy and exclusion was indeed behind the creation of suburbs

Limiting teardown McMansions with ordinances requiring demolitions reuse and recycle materials?

Palo Alto, California will soon require the reuse or recycling of the majority of materials for demolished buildings:

[W]orkers will now be required to systematically disassemble structures, with the goal of reusing or recycling the bulk of the material on the site. Based on experiences in Portland, Oregon, which has a similar law in place, staff believes that up to 95% of the construction debris can be salvaged — either reused or recycled — through “deconstruction.”…

Construction and demolition materials represent more than 40% of Palo Alto debris that gets disposed in landfills, according to an estimate from the city’s Public Works Department. As such, it represents a prime opportunity for diversion and recovery, staff told the City Council at the June 10 meeting, shortly before the council voted unanimously to adopt the new ordinance…

The new model calls for buildings to be systematically disassembled, typically in the reverse order in which they were constructed. Based on two recent pilot projects, deconstruction work using this method would take about 10 to 15 days to complete and require a crew of four to eight people, with the cost ranging from $22 to $34 per square foot….

The new deconstruction ordinance is expected to help the city divert 7,930 tons of waste annually (by contrast, the disposable-foodware ordinance that the council adopted at the same meeting would divert 290 tons). The deconstruction ordinance is also expected to reduce the city’s greenhouse-gas emissions by 22,300 metric tons annually (for the foodware ordinance, the number is 470 tons).

This would be an interesting way for communities to limit teardown McMansions without having to explicitly mention big houses. When there are public discussions about ordinances regarding residential teardowns, it often comes down to a discussion of property rights versus neighborhood or community character. These can get ugly. But, an ordinance like this does not have to explicitly mention residential properties or single-family homes in order to affect them. Going through the reuse/recycle mode would require more time and labor and this might either constrict what is built on the site or stop the teardown process before it begins. Of course, those pursuing teardowns might simply pay more to deal with the new requirements. People who have the money to buy a lot and house (sometimes a perfectly functioning or not very old house) and just tear it down and build a new one might just be able to easily pay these new costs.

With this ordinance in mind, I imagine there are other ways local governments could restrict residential teardowns without necessarily targeting them. Why set up a battle about property rights, aesthetics, and community if it can be avoided by regulations that nudge people certain directions?

The size, number, and color of disturbing McMansions in Napa Valley

New large homes in Napa Valley are causing some concerns for a variety of reasons:

“As though rising amid the St. Helena vineyards like a megalith” is how Zillow describes one home. It is 6,700 square feet and has 17 rooms, with such outdoor features as a pavilion, pool and tennis court.

Napa County Supervisor Diane Dillon said an area west of Highway 29 south of Rutherford pretty much looks like a subdivision of McMansions. Plus, the 5- to 10-acre parcels have the potential to be covered in patios and outdoor lights…

“The biggest threat to the valley isn’t wineries; it is the proliferation of mansions,” the APAC report stated…

One thing supervisors want to move quickly on is the color of large structures. Several noted that when the county demands earth tones, the result can be structures colored white – “white whales,” Dillon said some of her constituents call them.

Given the concerns here, I wonder why the County does not just make such guidelines for property that would not allow large homes. Instead, they are talking about various guidelines – how much of a property can be devoted to a home, the color of the home – to try to make the more palatable. If large homes are problems, why allow them?

There could be multiple reasons for this approach:

1. Looking extremely heavy-handed as a local government may not be desirable. In trying to find a balance between property rights and community goals or character, these local officials may not want to encroach too far on property owners.

2. It may be desirable to have wealthy residents on large properties. Perhaps this leads to more property tax revenues. Perhaps wealthy residents help enhance the status of the community. Perhaps big houses may have some problems but they are certainly preferable to small-lot subdivisions or multifamily units.

In the end, it sounds like the McMansions or mansions need to meet certain guidelines but limiting the total number of them might be the largest issue.

The scary McMansions of Lake Parsippany and giving up property rights

One New Jersey resident is not happy about the arrival of a McMansion next door:

Suddenly, the sun is gone, you’re in its shadow, it’s coming closer and closer. You can feel it’s poorly portioned eyes glaring down at you. You try to make the creature out, but its stucco front and vinyl siding sides confuse you, and there’s the artificial stone surrounding its mouth.

No, this is not an early Halloween tale, it’s the McMansion next store…

This is America, and no one should dictate to you what you can do with your property, but when you choose to have every tree cut down, use every inch of a lot and build a home 3 times the size of the original dwelling, that disrupts other people’s lives and infringes on their rights.

I would have never bought my home knowing the house next to me would be knocked down. Why would I think, a perfectly fine 3 bedroom home would be destroyed? What attracted me to the street was that each house was a little different, and each home had a yard and mature trees.

I’ve been told it’s a way to showcase your wealth, but I only see ignorance and bad taste. McMansions do not make good neighbors, they’re downright scary.

This letter summarizes the crux of the issue with teardown McMansions: how should a community or individuals balance the right of homeowners to use their property as they wish versus what their neighbors would like? Who should win when “no one should dictate to you what you can do with your property” yet certain buildings can “disrupt other people’s lives and infringe on their rights”?

Many communities have adopted some sort of community guidelines that both limit the size of teardowns and try to nudge the new structures toward existing architectural styles. Yet, I wonder if that does not solve the real issue: the negative interactions likely to occur between neighbors. Even if a new McMansion meets community guidelines, what are the odds an upset neighbor next to the new McMansion is likely to be happy with the new residents?

In other words, property rights do not necessarily lead to good neighbors, particularly if some neighbors are perceived to not follow the local norms. The result can be isolation, lawsuits, public arguments, and violence. Property rights might take ultimate precedent in a court of law but having a pleasant social life may require ceding some control.

Controlling private property, as viewed through Nextdoor

Based on Nextdoor, one writer sums up what bothers Americans about their local surroundings:

Steve Wymer, Nextdoor’s vice president of policy, told me that the same topics arise again and again, modulated by region and neighborhood type. Service requests and recommendations constitute 30 percent of chatter, and discussions of real estate make up another 20 percent. About 10 percent of Nextdoor conversations relate to crime and safety, Wymer said. (Suspicious persons come up a lot, often amounting to sightings of people of color in predominantly white areas. Nextdoor has attempted to discourage posts that use appearance as a proxy for criminality by prompting users to add more detail and blocking some posts that mention race.) Public agencies such as police and emergency-management departments also post updates to their constituencies. Noise complaints are another popular subject, according to Wymer—fireworks seem to raise particular ire—as are classifieds, missing pets, and gardening tips.

Judging by the conversations on Nextdoor, it would seem that Americans are concerned first about the safety and security of their property, family, and pets, and then with their property’s, family’s, and pets’ upkeep and improvement. Though the platform breeds its share of conflict, it is notable—in contrast to other social networks—for the commonality it reveals, even in these times of unprecedented political division. No one, Democrat or Republican, wants a neighborhood strewed with dog poop.

I wonder how much this online behavior is driven by two fundamental factors underlying American neighborhoods:

  1. Residents want to be able to control their own property.
  2. They also want to control some of their immediate surroundings, often in the name of property values or the character of the neighborhood.

These values can often come into conflict when one resident’s actions with their own property clashes with the desires of another property owner. Property rights are very important in the United States but property values often rely on neighbors and the surrounding community.

In the long run, it would be interesting to know whether Nextdoor provides a better platform for resolving neighborhood conflicts compared to face-to-face conversations or mediated conversations through other actors (such as calling the police or contacting local government about a concern). For example, many suburbanites are averse to open conflict and moving the conversation online might diffuse some of the tension. At the same time, an online platform could reinforce issues if things are said there that wouldn’t be said face-to-face or conversations take significantly more time.