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.

 

Suburbanites can rally en masse against (and for) zoning issues

Suburbanites may participate at low rates in local elections but they certainly can be energized by controversial local zoning proposals. More on the ongoing Haymarket case in Itasca, Illinois:

Itasca plan commissioners admitted they underestimated public interest in a proposed addiction treatment center when a crowd representing 16% of the town’s population packed their meeting Wednesday night…

Demonstrators marched earlier Wednesday evening through downtown Itasca to pressure a Chicago nonprofit group to abandon plans to convert a hotel into a 200-bed drug and alcohol treatment center…

Prominent politicians, advocates and other nonprofit groups have thrown their support behind Haymarket, maintaining that the center would address a shortage of easily accessible residential programs for recovering addicts in DuPage County. Proponents also say much of the outcry stems from the stigma around opioid addiction…

Opponents have focused their main objections on the size and location of a facility they say would put too much of a burden on the village’s police and ambulance services.

Quite the excitement for a suburb with less than 10,000 people. Several parts of this latest news report stood out to me:

1. A public march through the community from those opposed to the center.

2. Public demonstrations of support from those in favor of the facility. While there may be a good amount of NIMBY activity, there are also people willing to stand up for the facility.

3. That this all is based on a medical center. This is not a landfill or huge condominium building in a town of single-family homes. Of course, it is not just any medical center: it is one involving drug treatment. (And many suburbs do not like getting involved with anything to do with drugs.)

4. This is not how such local political activity works but it would be interesting to hear where Itasca residents think the facility should be located or whether they could help broker a deal for another community rather than just reject the local proposal. More broadly, how might communities and residents work together to locate facilities that may be undesirable but are needed?

Zoning for single-family homes contributes to California’s housing issues

If a lot of individual communities zone largely for single-family homes, it can add up to larger housing problems:

At its heart, California’s housing problem is one of scarcity: According to one analysis, the state has 3.5 million fewer homes than it needs to house all the people who live there. That gap was created over decades — largely as a result of the zoning policies of individual communities, under pressure from local residents. Randy Shaw, a longtime Bay Area housing advocate and author of the book Generation Priced Out, says the best way to describe the dynamics at play is to look at the city of Atherton. Thirty minutes from San Jose, Atherton is the most expensive city in the country: The median price of a home there is $8.1 million.

“You can’t build an apartment building in Atherton,” Shaw says. City code prohibits anything other than a single-unit building with a footprint that cannot exceed 18 percent of the land. In other words, everything but a single, detached home with a yard is verboten. “You have all of these cities in California where you can’t build anything but a luxury home,” Shaw says. “When you have zoning restrictions that prevent you from building the housing you need, you’re pretty much guaranteed to get in the situation we have.”

It’s a problem lawmakers across the state are grappling with, including in San Jose, where 94 percent of the city is zoned for single-family homes. “You got lots of family housing, and you’re not going to bulldoze it to go build apartments,” Liccardo said at a meeting of the state’s mayors in July. “At least, not if you don’t want [homeowners] to burn down City Hall.”…

At the start of the legislative session this past January, the housing committee introduced a slate of bills focused on streamlining approvals for new construction, protecting renters, funding affordable housing, and, most controversially, reforming zoning laws. Wiener’s top priority was SB50, an ambitious proposal that would prohibit cities from having zoning laws like Atherton’s. Residential neighborhoods historically reserved for single-family homes would be opened up to multi-unit housing like triplexes and fourplexes. And even higher-density construction would be allowed around transit corridors and “job-rich” enclaves.

With suburban preferences for single-family homes, exclusion, and local control, providing cheaper housing at a state level is going to be a tough sell. As I have asked before, what incentive do wealthier homeowners have to change the rules that let them live with people like them? But, if California can find some path through this all that actually makes an impact – and it will likely take quite a while before significant change could be noted – then it could provide a helpful template for other American locations that suffer from similar problems.

Resistance to 5G: technological progress versus local zoning and control

Americans like local control and they like technological progress. So what will happen when municipalities refuse to install or significantly slow down the installation of 5G units the federal government has approved?

If someone is tracking all of these cases, it would be interesting to know how many communities are resisting this because of (1) alleged health threats or (2) resistance to being told that they must install these or (3) that some of these boxes are located near homes. Of course, it could be a combination of the three in some places but even then, I wonder what is the more convincing argument at (1) the local level and (2) at higher levels.

In the long run, I assume federal requirements would supersede local land use restrictions. But, what if there are scores of communities that resist? Or, what if the resisters are more powerful communities and residents? Infrastructure is a pretty important feature of modern society and allowing some communities to opt out may not be optimal. There is always some cynicism that wealthier communities can resist land use changes better because their resources allow them to challenge change. Would 5G installations then go in places that cannot as easily resist? Does this foreshadow a technological landscape where resources and ideology lead to more uneven distribution of basic technological infrastructure?

One possible compromise in many communities: ceding that the federal government has approved this but then refusing to install them in residential areas. I do not know how this would affect 5G coverage but I imagine moving the units out of sight of homes and residential units could do a lot of good.

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.