Let’s Declare Our Independence — From Zoning

Today is the day Americans commonly consider our country’s “birthday,” the day which we officially declared independence from the United Kingdom. One could argue the other days would be appropriate, like the final ratification of our written Constitution on June 21, 1788, or even the burning of the ship Gaspee by a group of American tax evaders on June 9, 1722. But July 4 is now hallowed in our civil religion as the day, and it is also a good day for Americans to consider declaring their independence from another oppressive regime, the use of zoning to manage and control the use of land in American cities.

The July 4 holiday is unique in that it doesn’t celebrate a battle or a person but a document, the Declaration of Independence, the central focus of which is shaking off the interference of a distant government in daily life. For people on the left, the document is about universal rights, and on the right, usually, a celebration of individual rights. Of course, both of these are present in the document. Zoning highlights this conflict between the need for government to protect the community with fair and predictable rules that don’t violate rights, and the strong sense we’ve gained from the document that being American is about doing whatever one wants as long as it doesn’t hurt anyone else. What is zoning and where did zoning come from? And does getting rid of it mean opening up a libertarian wild west that could be harmful?

The Birth, Growth, and Old Age of Zoning

Euclid, Ohio is a suburb of Cleveland was a largely agricultural at the beginning of the 19^th century, and as the city began to grow it attracted interest from railroad investors. The city of Euclid was worried it would be overrun by speculators and new development by the railroads, so it created regulations to limit the development of land owned by the Ambler Real Estate Company. Ambler sued, and the resulting legal battle and Supreme Court decision, Village of Euclid v. Ambler Realty Co., 272 U.S. 365 (1926), forms the basis of today’s local zoning laws. This opened the door for cities across the country to impose what we today call Euclidian Zoning, a regime of rules and regulations that segregate uses geographically into zones; housing here, retail there, and a mix of uses in that area over there.

At the time, this segregation made a great deal of sense, keeping, as the phrase went, “the pig out of the parlor.” Nobody wanted to live in a house next door to a factory belching smoke or a rendering plant. Pushing uses apart was a way of using distance to mitigate the health risks or aggravation of various uses from other uses, especially residential. However, over the years, to maintain this system roads would have to be built. And the result was the suburb, with residences located miles away from concentrations of retail, commercial, and recreational areas. Roads were expensive and soon became clogged as populations grew.

I’ve called zoning a 20^th century solution for a 19^th century problem, because in today’s world we have models of development that have become common and that push uses together in a way that means people can live, work, shop, and go to a park all within walking distance. Transit options both public and private (like Lyft
LYFT
, Uber
UBER
etc.) have proliferated. People in cities can now often get what they need without long car trips. The advantage of more people living closer together is that it requires less land, and that means housing is more affordable and less scarce than when it is built on large lots and spread out.

Also, redlining and racist covenants in post war America meant that zones ended up segregating not only use, but people, keeping black families from getting financing and housing in areas that were predominantly white. This wasn’t because of typology – bungalows aren’t racist, people are – but because zones made it easy to keep things or people they didn’t want at a distance. Zoning facilitated racism.

Doesn’t No Zoning Mean No Rules?

No. Let’s throw our net into the water and fish up an example of some zoning code and an example of some building code and take a look at the difference.

First, here’s what a random sample of Seattle zoning code looks like:

“C. Residential uses at street level

1. In all NC and C zones, residential uses may occupy, in the aggregate, no more than 20 percent of the street-level street-facing facade in the following circumstances or locations:

a. In a pedestrian-designated zone, facing a designated principal pedestrian street; or

b. In all NC and C1 zones within the Bitter Lake Village Hub Urban Village, except lots abutting Linden Avenue North, north of North 135th Street; or

c. Within a zone that has a height limit of 85 feet or higher, except as provided in subsection 23.47A.005.C.2; or

d. Within an NC1 zone, except as provided in subsection 23.47A.005.C.2; or

e. In all NC and C1 zones within the Northgate Overlay District, except as provided in Section 23.71.044; or

f. In all NC and C1 zones within the areas shown on Maps A through D for 23.47A.005 at the end of this Chapter 23.47A when facing an arterial street.”

Now here is a sample of Seattle building code:

“Separation from High-Voltage Equipment. Where switches, cutouts, or other equipment operating at 1000 volts, nominal, or less are installed in a vault, room, or enclosure where there are exposed live parts or exposed wiring operating over 1000 volts, nominal, the high-voltage equipment shall be effectively separated from the space occupied by the low-voltage equipment by a suitable partition, fence, or screen.”

This is actually part of a detail of building code, the electric code. You can see that zoning gets very fussy about ratios of uses to street face, how lots are abutting each other, height, and how buildings relate to other uses like the street. The electric code is all about safety and it is much more straightforward. Someone who knows about electricity and builds housing might argue with this piece of code, but there is no doubt that everyone wants some basic rules that ensure a structure doesn’t get built with dangerous electric equipment. But why worry about the height of the building or the percentage of the façade facing the sidewalk?

The truth is that almost everything is zoning code could be done away with and have zero effect on the safety of new housing and would make it much easier to build. Meeting the rigors of the building code and its various requirements, but imagine looking at that zoning code and trying to figure out (with all the references to other pieces of code) what exactly can be built and what limits the rules might have on livable and usable space. The zoning code contributes almost nothing to housing for the people who live in it but simply sets and patrols arbitrary standards for other people who might live down the road.

The Declaration of Independence from Zoning

Jefferson wrote in the Declaration that, “all experience hath shewn, that mankind is more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed.” Oddly, builders and developers don’t necessarily hate the zoning code because they know it and it is predictable. Banks and lenders like depend on it too. And angry neighbors worried about the equity in their single-family home depend on it to vex new development, slow it down, and maybe stop it.

As I have pointed out, there are few better examples of “arbitrary government” railed against by the men gathered in Philadelphia than a zoning code. Dense, self-referential, and an accretion of things people don’t want rather than what they aspire to, zoning laws promote the status quo and smother innovation. And they are expensive to follow, requiring review, legal advice, and multiple layers of permitting and hassle. All of this is borne by renters and people trying to find a new home who see it reflected in the price of their housing.

But there has been “a long train of abuses and usurpations, pursuing invariably the same Object” by zoning codes, specifically preserving the rights and privileges of the “we got here first” over the “we want to live here too.” Ending segregation of use in zoning codes would also end the segregation of people, expanding opportunity both for people who want to build housing and those who want to live in it.

The abolition of zoning would result in no loss of safety or the choice of people to vote with their feet and dollars for what they like and against what they don’t like. Perhaps some ugly buildings might happen; but if nobody likes those buildings, they’ll be cheap. And some really amazing things will be possible, and we could have development that would create beauty and utility not in spite of the rules, but because there aren’t any.