Bishop: The End of Zoning
Monday, December 24, 2018
The East Side street where I grew up is festooned lately with signs that say “Save Neighborhoods, Enforce Zoning Laws”. Here, in the shadow of Brown University, this affinity for the arcane fine points of city ordinance is inspired by an effort to rent one of these stately homes to a ‘family’ of college students some 13 strong. Well that sounds like a lot until you stop to think that we often had 10 plus folks living in our house up the street: between our family of 8, our ‘in-law’ (the old maid’s quarters) and a parade of foreign students and Cambodian and Nicaraguan refugees (my mother got empty nest syndrome long before the nest was empty).
But otherwise bucolic Keene Street had recently been plagued by a party at another student house where a neighbor observed to the College Hill Independent: “people spilled into the street . . . rolling kegs down the street and partying well past midnight”. One resident called it “the worst party ever.” Obviously, these keen observors didn’t live on the street when an era of sinking drinking ages in the 70s made our high school parties something along the same lines.
Having, these days, to manage homes rented to college students gives me an opportunity to look back on that youthful behavior with some chagrin for how neighborly its character wasn’t, on occasion (although our penance was our father making us clean the entire street, the kind of giving to the community that maybe buys you an absolution or two). It’s ironic, if unsurprising, that the town-gown line on a street that was always full of Brown professors is nonetheless strained by students. Set against the context of the large and extended families that historically occupied these homes, this doesn’t look much like a zoning issue but a simple question of neighborliness. Although the objectors cling tenaciously to the legally questionable proposition that the city can keep more than three ‘unrelated’ people from living together.
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The focus on student housing policy, understandably driven by complaints from neighbors, has for too long taken an outsized bite out the housing policy of the city. American communities are not overrun with communes, but rather with single-family homes that, especially at East Side scales, don’t fit today’s families. It is hardly surprising that college undergrads will form ‘families’ to take advantage of such housing which would be more attractive to professionals if its square footage were divided. The tacit habit, as families have grown smaller, is for owners to create in-law apartments. But the idea of regularizing such efforts -- the route chosen as an alternative by the owner of the house at the center of this controversy -- seems to stir up opposition almost as vociferous as that to large groups of students.
Against this backdrop, Minneapolis this month made an unprecedented change, eliminating single-family zoning altogether. Before you have a coronary, they didn’t eliminate single-family homes, only the restrictions that had kept multi-family uses out of 75% of Minneapolis. That still might cause palpitations to the faint of heart. If such a thing were to happen to your single-family neighborhood, could you be stuck with renters next door?
Is zoning the correct solution for neighborhood issues?
College Students are, after all, just the quintessential transients. They seldom stay more than a year, and by definition lack the maturity to consider, in the heat of the party . . . eer moment, how their boisterous lifestyle might impinge on neighbors. So they need other incentives besides the instinct to do unto others as you would have them do unto you. David Hackett Fisher observes in his remarkable colonial American history, Albion’s Seed, that Massachusetts “. . . in 1648 required the death penalty as a punishment for stubborn or rebellious sons over the age of sixteen . . . ”. That might be a little strict, but some simple behavioral modification like being denied advancement and graduation – even explusion – is how the colleges compel campus behavior and that should extend to community behavior of their students as well.
When it comes to non-student renters, the length of their stays can vary and a fabric that intersperses owner-occupied buildings tending to have longer residential tenures and associated reputational and stability interests and effects can be a better policy than one that precludes apartments. This is one of the justifications of the incentives for owner occupancy created by the city’s homestead tax exemptions (originally a residential perk that has since been limited to owner-occupied buildings). These policies now verge on bills of attainder. They went from modest 15% abatements for owner occupants to a 50% (eventually reduced to 40%) giveaway with punishing taxes on apartment investors that raise rents as David Cicilline sought to avoid a general property tax increase during his congressional campaign -- effectively taking an unreported donation from all the city’s renters. Yet these tax breaks, like zoning, masquerade as health, safety, and welfare policy to insulate them from legal challenge.
Zoning itself is suspect!
Justice Sutherland, writing in 1926 in the seminal decision of Euclid v Amber validating the constitutionality of zoning, a practice that had been suspect as violating the freedoms provided for Americans to use their property as they chose so long as their pursuits were free of nuisance:
“. . . the development of detached house sections is greatly retarded by the coming of apartment houses, which has sometimes resulted in destroying the entire section for private house purposes; that in such sections very often the apartment house is a mere parasite, constructed in order to take advantage of the open spaces and attractive surroundings created by the residential character of the district. Moreover, the coming of one apartment house is followed by others, interfering by their height and bulk with the free circulation of air and monopolizing the rays of the sun which otherwise would fall upon the smaller homes, and bringing, as their necessary accompaniments, the disturbing noises incident to increased traffic and business, and the occupation, by means of moving and parked automobiles, of larger portions of the streets, thus detracting from their safety and depriving children of the privilege of quiet and open spaces for play, enjoyed by those in more favored localities”.
This is a police power articulation, suggesting that zoning is necessary to preserve the health and morals of residents of “detached” housing. These days, some think of the sprawl of detached housing as, itself, responsible for the very traffic and social problems Sutherland sought to avoid. So present-day apparatchiks, empowered by the courts solicitous Stare Decisis for this questionable decision, wish to bend zoning to their own ends to address these purported ill effects. Where is their suspicion of using the very mechanism that brought about the sprawl to begin with?
Ink by the barrel has been spilt over HUD creating an environment of density exceptions in tony suburbs for affordable housing – as if its not healthy for rich people to live densely, but fine for poor people. Zoning is to be manipulated rather than rejected. Whose ox is being gored is at the root of the debate, rather than the American answer which is to end the slaughter altogether.
Zoning and Race
The point, of course, is that neither Sutherland’s original motivation nor any of the various present machinations of zoning have any objective basis whatsoever. They are political tools for effectively creating gated communities and majoritarian aesthetics and then for breaking down those gates in favor of others. Neither can truly claim the police power imperative of protecting the health and welfare of citizens.
Sutherland’s paean overshadows a more realistic, if raw, assessment by Judge Westenhaver when Euclid was before the District Court. He held that single-family zoning, like single-race zoning, was a constitutional violation:
"Buchanan v. Warley, in which an ordinance of the city of Louisville . . . districting and restricting residential blocks so that the white and colored races should be segregated, was held to be a violation of the Fourteenth Amendment and void. It seems to me that no candid mind can deny that more and stronger reasons exist, having a real and substantial relation to the public peace, supporting such an ordinance than can be urged under any aspect of the police power to support the present ordinance [single family zoning in Euclid, Ohio] . . . And no gift of second sight is required to foresee that if this Kentucky statute had been sustained, its provisions would have spread from city to city throughout the length and breadth of the land. And it is equally apparent that the next step in the exercise of this police power would be to apply similar restrictions for the purpose of segregating in like manner various groups of newly arrived immigrants. The blighting of property values and the congesting of population, whenever the colored or certain foreign races invade a residential section, are so well known as to be within the judicial cognizance."
The racial character of zoning can be overplayed, but it can’t be ignored. Zoning was a marriage of progressive instincts for government planning with a sub rosa motivation of quietly separating classes in our classless society. It was an attempt to regularize, at the literal point of the government gun, social customs that kept neighborhood order. Segregation reflects a comfort with common heritage and custom as much as a rejection of novel arrangements. It would exist to some extent without government regulation and does not necessarily frustrate American ideals. But despite 200 years of working to reject government-enforced segregation, we allow zoning -- a marriage of progressive aims and puritan colonial attitudes favoring strong family structure -- to continue its de facto class segregation. We should stop ignoring that much single-family zoning was indeed a substitute for racial zoning.
Colonial Rules
In colonial times, government action was not wasted on spite fences and tree counts. Setbacks were a matter of fire safety, not aesthetic. There weren’t apartments, not because of zoning, but because of the singular puritan focus on the family that encouraged servants and single persons to join family units.
Returning to Fischer’s Albion’s Seed there is evidence of the direct social measures on family undertaken in early America: “provinces of Connecticut and Plymouth also forbade any single person to ‘live of himself.’ ” And Fischer reports tithingmen in New England colonies were charged to inspect households and remove children and servants from those that were dysfunctional. These are not now our constitutional norms in other than extreme circumstances; and yet they constitute a powerful hangover of the puritan ethic echoed in our zoning codes. Burke would surely be happy that even as laws have liberalized, we have not completely lost respect for the values that inspired those laws. But it is disingenuous to put a liberal face on the use of zoning to compel similarly circumscribed outcomes.
The Rule of Law or the Golden Rule?
As imperfect a system as it is, the American experience recommends that our neighborhoods be structured on mutual respect for one another, not on confrontations in a war of inspectors and lawyers. College students partying at 2 in the morning can indeed be a nuisance and addressed by a call to Providence’s finest. But their very existence as neighbors should be less subject to law and more to the golden rule – one that ought to be observed by the colleges that so ungratefully cling to their 100% tax abatements while washing their hands of their role as neighbor in the fullest sense. Indeed, their institutional aims make them suspicious of retentive property use control from which they must constantly seek exception, yet when it is required that they pitch in to reduce the incentive for intrusive regulation, they are AWOL.
Who’s zooming who
And speaking of tax abatements, if all the owner occupancy in East Side neighborhoods can’t provide the stability of social integration and behavioral signaling to renters in their midst, then the 40% abatements they are receiving through the ‘homestead’ structure are equally suspect. East Siders tend to have this feeling that their high property values mean they fund more of the city services and they thus find some defense in being the ones to attempt to set standards for the city. Ironically, under the longstanding theory of ad valorem taxation, the situation is actually reversed. It is tenements on the South and West Sides that are subsidizing the taxes of East Siders, because the preponderance of non-owner occupied buildings in those neighborhoods pay a much higher tax rate.
Progressive is as progressive does . . .
East Siders, who vote as progressively as any block in the state, don’t really want to live progressively. When a novel proposal comes along, they are there to oppose. Be it the Fane Tower, a subdivision on Blackstone Boulevard, or a multi-family house on Keene Street, the locals are fully engaged in opposition. Of course, this was to be expected when there was a proposal to turn a mansion on Lloyd Avenue into a Suboxone clinic. East Side coalitions seem to have the free time and possess the institutional and monetary capital in terms of lawyers and elite community organizations to put up a fight in cases where the rest of the city would just be expected to accept that there are needed facilities that are going to be sited, even if they may be perceived as having negative externalities.
Senator-elect Sam Bell insists his own constituents in the West End are skeptical of the Fane Tower, but it was East Siders who filled the hearings to object. With a bulk of the council representing the West and South Sides favoring the Fane tower, it seems as much a geographical solidarity that lead Mary Kay Harris to join them in overriding the Mayor’s veto, rather than see growth in the city subjected to East Side sensibilities.
One can be cynical that policy might be following geographical division rather than assessments on the merits, but East Siders hardly have a consistent resume of merits based complaint. Indeed, the proposed development on Blackstone Boulevard, which has garnered a swift negative response, is asking for no zoning exceptions and would create lots larger than those already existing in the neighborhood. So more arcane regulations are dug up by the ever pedantic opponents -- going above and beyond the already ridiculously intrusive city policy requiring the developer to account for and preserve trees on the property.
Give me Freedom or Give me Trees?
Speaking of trees, one traditionalist objector to the newly liberal zoning in Minneapolis (liberalization that does gain support from market conservatives concerned with property rights) presented a very effective photo showing the extensive tree cover in single-family zones that surround the built-up downtown, certainly mirroring our own neighborhoods like Elmhurst as well as the East Side. The implication is that, with Minneapolis’ zoning change, this canopy will disappear along with a model for cities that has discouraged flight to the suburbs by all but creating them in the city. But trees aren’t as sensitive to single-family zoning as they are to lot sizes and setbacks – not on the scale of exclusionary exurban lot sizes but just some unpaved tree sized spaces left around the homes. This is one of the reasons that the Blackstone Boulevard development was actually able to comply with the city’s rules on trees.
So when you think of neighborhoods in Providence that don’t have such green crowns, you can quickly see that houses built close together and close to the street constrict the space for trees. This pattern was an archetype of housing when Rhode Island, as an industrial powerhouse, charted a course to being the most densely populated state in an era before high rise residences. This is not a paean for or against trees, nor a paean for or against density. It simply is the point that the correlation of single family homes with treed streets is not causation.
The fact that dense tenement neighborhoods have less tree cover does not indicate that multi-family use and urban arbor are incompatible. These traditional three-deckers, up and downs, and side by sides have, in our past, been as strong and friendly a bastion for families and long-term residence as have been single-family neighborhoods. The two are actually well mixed in the leafy and adjacent neighborhoods of Summit (Providence) and Oak Hill (Pawtucket) -- sought after addresses despite interspersed apartments.
These are a good archetype for marrying arboreal outcomes with multi-family zoning and akin to the ‘workout’ that the infamous Keene Street owner, Walter Bronhard, has targeted -- although he remains a target of scorn on East Side email lists. Multi-families are not absolutely unknown on college hill, but inhabitants there have developed a fastidious busy-bodiness that suspects it is a criminal violation of history and aesthetics for enormous underutilized manses to join the modern era as more units for smaller family sizes – to the point of counting outdoor heat pumps as an imagined surrogate for number of units.
Bad Cases make Bad policy.
Bronhard is surely not the poster child on whom such policy should rest. He has aggressively and widely invested in East Side real estate. And to describe his own neighborly habits as tin-earred would be an insult to the tin-earred. For all who worry that some of his approaches could undermine their property values, his purchasing power has perhaps singlehandedly increased East Side values
This is no comfort for those who are immediate neighbors of his transitional real estate strategies. I don’t blame them for not being able to sort true nuisance from simple annoyance, to sort reasonable updates to property from unreasonable expectations for return, to sort insensitive neighbor from civic miscreant. But I blame the city leaders for spending so much focus on this noise and not deeply engaging the challenge taken by Minneapolis to retain the American founding ethic of solving such disputes by association and consensus (and living with the occasional dissenter), not through a vast edifice of civil administration.
Brian Bishop is on the board of OSTPA and has spent 20 years of activism protecting property rights, fighting over regulation and perverse incentives in tax policy.
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