The Fight Against “The New Exclusionary Zoning”

Andrew Keatts | @andy_keatts | February 15, 2016

Houses in San Francisco. Image via flickr/Danielle Bauer.

Houses in San Francisco. Image via flickr/Danielle Bauer.

When journalists write about gentrification, they usually focus on how those changes affect individual neighborhoods.

An urban area goes through a series of changes, making it a more attractive place to live and forcing existing residents to pick up and move to the next yet-to-gentrify neighborhood nearby.

But what if the same process takes place across entire regions? Might entire metropolitan areas be undergoing those changes, forcing residents not just out of neighborhoods, but out of the city, the suburbs, and everything else within reasonable distance of the jobs and services centered there?

That’s what John Mangin, fellow at the Georgetown University Law Center, argues in his article for the Stanford Law & Policy Review, “The New Exclusionary Zoning.”

“If low-income families can’t afford the suburbs, and they can’t afford the cities, where should they go?” Mangin wrote. “For the first time in American history, it makes sense to talk about whole regions of the country ‘gentrifying’ – whole metropolitan areas whose housing costs have rendered them inhospitable to low-income families, who, along with solidly middle class families, also feeling the crunch, have been paying higher housing costs or migrating to low-housing cost (and low-wage) areas like Texas, Arizona, or North Carolina.”

Exclusionary Zoning, Old and New

The traditional notion of exclusionary zoning was born in the suburbs. Using homeowners associations or other covenants, residents set up byzantine ways to restrict growth within the confines of their communities – some with physical gates, others with more symbolic ones –raising housing prices and keeping the world at-large at bay.

While that left low-income residents to fend with crime-plagued cities in the 1970s, things began changing as crime dropped and people slowly trickled back into cities through the 1980s, 1990s and 2000s.

Once back in the city, some well-to-do residents worked to undermine the permissive development standards that urban areas had adopted when they were hungry for any development they could find. That meant lengthy approval processes for new projects, restrictions on density, and multiple chances for growth opponents to step in and obstruct the process.

“The effect has been the same as in the exclusionary suburbs: The anti-development orientation of certain cities is turning them into preserves for the wealthy as housing costs increase beyond what lower-income families can afford to pay,” Mangin writes. “The phenomenon deserves a similar name —the New Exclusionary Zoning.”

But where the exclusionary practices in the suburbs couldn’t be stopped, given the vast power afforded to HOAs, the urban picture is different. Renters are a voting majority in many urban districts. And housing advocacy groups already wield some political sway. They need only let go of the counterproductive policies that have led to rising housing prices that disproportionately afflict the low-income families they ostensibly seek to help, Mangin argues.

How the New Exclusionary Zoning Works

In much of the country, developers respond to population growth by building more homes, with supply and demand for homes basically moving together, at least ideally. In older cities, like Detroit, the population is a fraction what it once was, and there’s a glut of available housing, pushing prices down. But in places like San Francisco, there’s a consistent strain on development of new housing, pushing prices ever-upward.

One reason for high prices in the latter group is basic land constraints. Coastal California can’t build outward the way Omaha can.

But the other reason is local policies that make it hard to build new homes.

“This factor is more important because even along the coast and in other land-constrained areas, the technical capacity to develop more densely exists but is not exploited,” Mangin writes.

So how come home building in San Francisco can’t keep pace with the demand to live there?

Mangin argues the city has pursued a course that’s essentially a perversion of legal justification of zoning.

As late as the 1950s and 1960s, the legal justification for a city re-zoning a property needed to be based on health and welfare. City planners, for example, may be forced to argue that a hotel in a certain area would spread disease or corrupt youth if they wanted to stop a project in a particular area. Now, there’s no such expectation. A preference for one aesthetic over another is often ample justification.

“As long as there are no bald violations of equal protection or due process rights, state courts will uphold zoning laws,” he writes.

Cities use things like floor area ratios and parking minimums to restrict housing density. Or, a project will need approval of multiple legal entities, giving opponents multiple opportunities to exert influence. In places like California, where certain projects need to be approved by a local jurisdiction as well as state authorities, there are even more opportunities to stop development. Likewise, many cities require developments to pass muster with local planning boards, citywide planning commissions, and ultimately city councils. Every hurdle is a potential roadblock.

Mangin adds environmental reviews into these restrictions – especially as environmental reviews increasingly includes matters that aren’t purely environmental, such as examining how a project effects “community character.” Historical preservation, too, he says has been subverted into merely a means of growth restriction (a topic that’s lately been subject to much debate).

“To be clear, this is not an argument that approval processes, community participation, environmental review, historic preservation, or open meetings laws should not exist,” he writes. “These laws and procedures have legitimate purposes and worthy ends.” But, he adds, “frequently unacknowledged is the fact that they also raise the cost of development, which raises the cost of housing.”

Types of Change

Mangin argues that there are two ways neighborhoods change.

In one, tastes change, and so do neighborhoods. A post-war preference for space and a yard and the notion of the American Dream drove people into the suburbs. Recent interest in urban living brought residents back to enclaves with rowhomes and cafes.

The other, though, is change driven by a growing regional economy. When a regional economy booms, and housing supply doesn’t, prices skyrocket.

But that doesn’t happen uniformly. The places that feel the pinch the most are low-income neighborhoods, where housing costs appreciate at a faster rate as the economy expands.

“Renters in low-income neighborhoods suffer the most,” Mangin writes.

This is, in part, a result of “the new exclusionary zoning.” In the higher income urban areas, empowered, higher-income residents are more capable of fighting off new development. It’s a trend we’ve seen even in Houston, where higher-income residents use “de facto zoning” to fight for larger lot size requirements or historic designations that hinder development.

And the people for whom that housing is just out of reach will then look elsewhere – like the nearby low-income neighborhood.

“People want to live in the highest-income, highest-demand areas, but there’s no room, and it’s too expensive,” he writes. “Instead, they go to the nearest low-income neighborhood and bid up prices there.”

The concern, Mangin warns, is that advocates concerned with gentrification place blame on the supply side, looking to the cafes and renovated homes in those formerly low-income areas as the driver of change, rather than the result of it.

Fighting the New Exclusionary Zoning

Mangin argues that while describing the problem through entry-level supply and demand is easy, solving it is not.

The basic solution – obviously enough – is for housing advocates to stop acting as agents for exclusionary practices.

But the best way for them to do that, he says, is by focusing their efforts on the high-income areas where wealthy homeowners protect their property values like the suburban gatekeepers of yesterday.

It’s a strategic choice, he says. While allowing development in low-income areas may be the right policy, it will never satisfy activists.

Instead, fighting exclusionary zoning in high-rent districts appeals to their desire to take action.

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