American laws privileging driving, zoning, and differential effects

A law professor summarizes how American law reinforces driving in multiple ways:

A key player in the story of automobile supremacy is single-family-only zoning, a shadow segregation regime that is now justifiably on the defensive for outlawing duplexes and apartments in huge swaths of the country. Through these and other land-use restrictions—laws that separate residential and commercial areas or require needlessly large yards—zoning rules scatter Americans across distances and highway-like roads that are impractical or dangerous to traverse on foot. The resulting densities are also too low to sustain high-frequency public transit…

As a matter of law, the operating-speed method is exceptional. It enables those who violate the law—speeding motorists—to rewrite it: Speed limits ratchet higher until no more than 15 percent of motorists violate them. The perverse incentives are obvious. Imagine a rule saying that, once 15 percent of Americans acquired an illegal type of machine gun, that weapon would automatically become legal. Other legislation amplifies the harm from this method. In California, for example, cities are sometimes obligated by law to raise speed limits against their will, and local governments are barred from lowering them even for safety reasons. This occurs against a backdrop of radical under-enforcement of the speed limit nationally, and the widespread banning of proven but unpopular lifesaving technologies such as automated speed cameras.

Just as telling as what activities the law regulates is whose interests it seeks to protect. Dozens of our peer nations require carmakers to mitigate harm to pedestrians caused by their products. U.S. design regulations, however, require only measures that enhance the safety of car occupants. Just as SUVs are becoming taller, heavier, and more prevalent—and pedestrian fatalities are surging—U.S. regulators have not required carmakers to embrace those more comprehensive design standards. Instead, they’ve launched campaigns baselessly blaming pedestrians for their own deaths…

In a similar spirit, criminal law has carved out a lesser category uniquely for vehicular manslaughter. Deep down, all of us who drive are afraid of accidentally killing someone and going to jail; this lesser charge was originally envisioned to persuade juries to convict reckless drivers. Yet this accommodation reflects a pattern. Even when a motorist kills someone and is found to have been violating the law while doing so (for example, by running a red light), criminal charges are rarely brought and judges go light. So often do police officers in New York fail to enforce road-safety rules—and illegally park their own vehicles on sidewalks and bike facilities—that specific Twitter accounts are dedicated to each type of misbehavior. Given New York’s lax enforcement record, the Freakonomics podcast described running over pedestrians there as “the perfect crime.”

Several related thoughts after reading the plentiful examples:

  1. The first example provided involved single-family home zoning. Cars and homes are intimately linked in the United States and particularly in the suburbs.
  2. I would be interested to see more discussion of how the legal structures arose alongside the rise of driving in the United States. Was it a back and forth? Did the quick acceptance of driving push the legal system in certain directions or did early legal changes give driving a boost?
  3. The approach of this article reminds me a bit of The Color of Law with the emphasis on the legal system. And the overall argument seems to be that such laws force Americans into driving. But, are there precedent-setting legal cases that could reverse this? Does the legal preference for driving rise to the level of discrimination? A case could be made since driving is expensive and owning a reliable car and driving is related to class which in the United States is also tied to race. Homeownership helps build wealth for certain groups that own but could driving also do the same? Or consider spatial mismatch where jobs and economic opportunities might be hard to access without a significant drive via car.
  4. How might this change with driverless cars and autonomous vehicles? The current system seems to privilege drivers but what if there are not drivers but rather processors, companies, and vehicle owners?

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?

Publication in Soc Quarterly: “Would Prefer a Trailer Park to a Large [Religious] Building”

The quote in the title for my newest article just published in The Sociological Quarterly comes from a comment made at a 2011 public hearing in the Chicago suburbs involving a proposal from a Muslim group to buy land. At face value, the claim is preposterous: what suburbanite living in a well-off suburb would want to live next to a trailer park?

My study titled ““Would Prefer a Trailer Park to a Large [Religious] Building”: Suburban Responses to Proposals for Religious Buildings” looks at what factors lead to more opposition from neighbors and local leaders when religious groups look to buy land, construct a building, or renovate/use an existing building. Is it related to the size of proposed building, the setting for the building, or the group making the request (thinking of multiple cases of Muslim groups facing opposition in the Chicago suburbs – see examples here, here, here, and here)?

The abstract to the study:

To worship in the suburbs, religious congregations often have to apply to local  governments for zoning and building approval. Examining 40 proposals from religious groups in three Chicago suburbs between January 2010 and December 2014 shows that local governments approved the majority of requests. For the proposals that received more negative attention or “no” votes from government bodies, opposition was related to locations adjacent to residences, experiences with one local government, and requests from Muslim groups. These findings have implications for how suburbs address pluralism and new development as the application of zoning guidelines can make it more difficult for religious groups, particularly ones involving immigrants or racial/ethnic minorities, to find and establish a permanent presence in suburban communities.

In sum, religious groups in the United States can theoretically worship in many places – until a local government suggests otherwise, often due to zoning concerns. Religious groups can counter with the Religious Land Use and Institutionalized Persons Act (RLUIPA) but lawsuits require time and effort and can hinder positive community relations.

The suburban way of life is not the result of free markets

Even as Americans have exercised some agency in choosing to live in suburbs, the whole system cannot truly be described as being the result of free market activity:

I get the concern and rarely disagree with Shelley, but there’s nothing free market about current single-family zoning rules. The suburban landscape largely is a creation of subsidies and zoning rules, which mandate only one house per certain size of lot and require umpteen parking spaces for every new shopping center, restaurant, office and church. Everything is micromanaged in the planning department.

I’m on the building committee of our church and have closely examined many proposed construction projects. It is so hard to build, expand or try any new development ideas because these planning edicts—designed mainly to protect our suburban way of life, and backed by residents trying to bolster their property values—are costly and inflexible…

But the underlying debate is about two visions of our California landscape. One side wants to protect our suburban model and the other side wants to urbanize. It’s a false choice driven by their own personal preferences. We need more apartments and condos. We need more single-family neighborhoods. We need to allow builders to provide the housing products people want, and different people want different things. The same people want different things at different stages of their lives. I live on an acreage, but now that we’re empty nesters, my wife and I plan to move into the city. That’s why I’m squarely on neither side.

After my housing column last week, I’ve heard from readers who oppose the legislation. Frankly, I’m frustrated by some of their arguments. To summarize some comments: If you can’t afford to live around here, then maybe move someplace else. There are too many people here already and too much traffic congestion. If your kids can’t afford California, they should consider less-costly states. Such views transcend political affiliation.

Zoning is a good example of how regulations can dictate what communities can construct and then who can reside or work in such locations.

Add two other other less-than-free-market aspects of suburbia:

1. A legacy of racial and class discrimination in suburbs.

2. Government subsidies for highways and other local services as well as propping up suburban housing in the form of single-family homes.

Americans might not acknowledge the ways suburbs developed and may even resist seeing them as social products. But, addressing tough suburban issues such as affordable housing probably requires thinking and acting at more collective levels than letting the beloved local governments dictate what they want (which can often deliberately lead to exclusion).

Promote smaller, cheaper housing by calling it “missing middle housing”

Even if the median size of new American homes is smaller in recent years, this does not mean it is easy to construct smaller new homes in communities:

To propel the movement, he recommends using the term “missing middle housing,” rather than terms such as “upzoning,” “density” and “multifamily,” which he says have a negative connotation.

“I can’t imagine a single neighborhood in the country where people will get excited about the term ‘density,’ ” Parolek said. “Even things like ‘multifamily’ can be a scary term that’s past its life span.”

His larger recommendation is for cities to change their zoning ordinances. Parolek advocates for form-based zoning, which allows more flexibility for what can be built on a property…

“Zoning in and of itself is a system that encourages single-family home construction in cities,” Parolek said. “Most cities don’t have effective zoning for missing middle housing, so the easy thing to do is to build a single-family house. There’s no neighborhood pushback and less risk. There’s a reason it’s being done, but it’s not responding to what the market wants.”

Very few neighbors or communities would be excited to live next to or approve cheaper housing. The assumption is that more expensive housing is good: it will bring in more tax dollars, typically has fewer residents (so lower local costs), and connotes a higher status. In contrast, it is thought cheaper housing brings down surrounding property values and the kind of people who live in cheaper housing are not as desirable as higher income residents.

Would communities react better to “missing middle housing”? Perhaps. Many places talk about the need to have housing where hard working professionals with a stake in the community, like teachers and firefighters, can reside in the place where they work. Or, it is desirable to provide denser housing for young professionals and retirees to keep them in the community. Yet, as Parolek notes, the goal is still to move people toward a single-family home (with some flexibility for townhouses and condos) in the long run. Changing zoning is not easy because many people purchase a home and then work hard for years to protect the value of that home. Cheaper housing may be more acceptable if located away from existing larger and more expensive housing, if it is allowed in the community at all.

Missing from even this suggestion about “missing middle housing” is an acknowledgement of the necessity of housing for lower-class and poorer residents. True affordable housing needs to go beyond the middle-class and provide housing for those working in the retail and service industries. But, I don’t think most communities and America as a whole wants to talk about this kind of housing.

Suburban residents tend to object to new housing near them

Over the objections of five residents, a portion of a commercial development in Naperville was recently changed to allow medium-density residences. One city council member responded this way to the concerns raised by residents:

Council member Judith Brodhead, a longtime south Naperville resident, said she was not surprised by opposition to new housing.

“If it were up to residents, most of the subdivisions you live in would never have been built because there were protests or objections to those as well,” Brodhead told residents who voiced concerns. “I’m not too worried about something that is small and is this size.

In my study of suburban growth and development, residents living near the location of a proposed subdivision or housing units can often raise objections including: increased traffic and noise; water issues; lost open or green space; effects on property values; and increased pressure on local services. Of course, these same residents often lived in developments that could have provoked similar concerns from earlier residents. Brodhead’s suggestion rings true to some degree (though I have not systematically analyzed opposition to nearby suburban developments) as suburban residents can oppose the opportunities of others to move into their community.

More broadly, this could hint at a deeper issue: people who move into a neighborhood or community can act as if those places should be frozen in time. They moved to that particular location because of certain features and if those change, particularly if that change is perceived negatively, then some will fight hard against the new proposal.

This is something for homeowners and others to keep in mind if they move: is the new location likely to be subject to such changes in the future? If you move into a new subdivision that is next to a corn field, how likely is it that suburban development will soon continue into that corn field? If you purchase an older home in a neighborhood where teardowns are common, what are the odds that adjacent homes are torn down and replaced? Some of this can be hard to predict but it is worth remembering that neighborhoods and communities do indeed change over time.

Ordinances and zoning against dollar stores

With evidence that dollar stores provide poor quality food options and limited jobs, some communities have used certain tools to restrict their presence:

While some local governments continue to lure dollar stores to town with tax subsidies and incentives, others are doing the opposite. A dollar store NIMBY movement has been gaining traction.

In Chester, Vermont, for example, residents argued in 2012 that allowing dollar stores to come to town “will be the beginning of the end for what might best be described as Chester’s Vermontiness,” per the New York Times—a statement that itself perhaps signals the class and race associations dollar stores have come to embody. In Buhler, Kansas, the mayor saw what happened to surrounding grocery stores in neighboring Haven and rejected the dollar store chain, also citing a threat to the town’s character.

“It was about retaining the soul of the community,” he told The Guardian. “It was about, what kind of town do we want?”

More recent efforts have used zoning tweaks to limit dollar stores, whose small footprint usually lets them breeze past restrictions big-box stores cannot. In Mendocino County, California, dollar store foes passed legislation restricting chain store development writ large. And in April, the Tulsa City Council passed an ordinance that requires dollars stores to be built at least one mile away from each other in North Tulsa. It also tacks on incentives for healthy grocers and supermarkets providing healthy food to locate in that area. “I don’t think it’s an accident they proliferate in low socio-economic and African American communities,” Vanessa Hall-Harper, a city councillor who grew up in North Tulsa and shepherded the ordinance, told ILSR. Since then, Mesquite, Texas, has followed suit with a similar move.

Communities have fairly broad powers to encourage or limit the presence of certain kinds of development. If they do not desire the building or the opening of a dollar store, then they can limit or eliminate the possibilities for a dollar store in that community.

Of course, the dollar stores can respond with their own tactics. Here are a few I could imagine (drawing from similar cases involving other businesses):

  1. Building just outside the jurisdiction of the municipality.
  2. Working with a neighboring community who is willing to have them.
  3. Mounting a public campaign against the community to tout the advantages of their business.

While the third option might be more of a nuclear option, the first two mean that another municipality could benefit from sales tax and property tax revenues, the limited number of jobs, and easier access for nearby residents.