I have an article at Strong Towns that looks at recent zoning-reform developments from around the US, including — primarily — efforts to reduce the footprints of exclusively single-family residential zones. The goal of such efforts is allow for legal two-family homes, mother-in-law houses, studio apartments, and similar lower-impact arrangements on privately owned land. Check it out for a snapshot of reforms, and early results, in Minneapolis, Oregon, and California.
Addison del Mastro has a thoughtful essay at Real Clear Policy about the changing real estate landscape in eastern Pennsylvania’s Lehigh Valley, a region that includes the older cities of Allentown, Bethlehem, and Easton. His piece is focused on the disappearance of affordable housing across the region as it becomes more closely entwined with the economy of New York City. Long-term residents are being priced out; new housing is coming online very slowly, due to the usual morass of American regulatory barriers; and what’s being built largely caters to those with money.
I find it very sad to see this phenomena marching deeper into the American continent. Clearly, we have learned little from the past 40 years, because this is a repetition of a pattern that was seen in the working-class parts of New Jersey and the outer boroughs of New York City a generation ago. A community cannot absorb a great influx of new people under restrictive land use regulations without squeezing out long-term residents. At first, the results seem positive: reinvestment in vacant properties and improving tax rolls. But once any slack in the market is soaked up, this is what happens. And while some owners will cash out on rising property values, local renters and young people will be the ones who get the business end of the deal.
On a brighter note, it’s true what Addison writes about Pennsylvania’s small-town urbanism, here and on his Substack. My firm recently proposed on some planning work in the anthracite coal region, where zoning has never been enacted by some towns. The urban patterns are very traditional. Towns may be five blocks long, but for those five blocks it feels as though you’re in an old city. It’s nice.
This 2019 law review article by Brian L. Frye, “The Ballad of Harry James Tompkins,” is more than an excellent piece of legal history scholarship. It is also a riveting tale of ambitious lawyers, the dangers of freight trains, hoboes during the Great Depression, life in Pennsylvania’s coal country, and a how a host of terrible American class attitudes crossed paths in the aftermath of one poor man’s grievous injuries.
To be honest, I couldn’t stop reading. A taste:
At about 2:30 a.m. on Friday, July 27, 1934, William Colwell of Hughestown, Pennsylvania was awakened by two young men banging on his front door. When he went downstairs, they told him that someone had been run over by a train. Colwell looked out his side window. In the moonlight, he saw someone lying on the ground near the railroad tracks. He went back upstairs and told his wife that there had been an accident. She told him “not to go out, that them fellows was crazy,” but he dressed and went out to help anyway.
Colwell’s house was at the stub-end of Hughes Street, where it ran into the railroad tracks. When he reached the tracks, he discovered his neighbor Harry James Tompkins, about 6 or 10 feet south of Hughes Street. Tompkins had a deep gash on his right temple, and his severed right arm was in between the tracks. Colwell told the young men to go to Mrs. Rentford’s house down the street and call an ambulance. After calling the ambulance, they disappeared.
Elsewhere, Frye gives fascinating accounts of the legal theories, interests, and found-facts that helped shape the US Supreme Court’s landmark decision in the case that resulted, Erie Railroad Co. v. Tompkins (1938) (“There is no federal general common law.”), raising the strong possibility that there was a bit more to the story than what made it into Justice Brandeis’s written opinion.
My own small contribution to preserving the history of the Erie case: I added a marker to Google Maps near the abandoned railroad crossing where Mr. Tompkins was hurt in 1934.
The Wall Street Journal reports today that the United States needs 5.5 million new housing units. That’s a serious backlog. As a nation, we are not building homes quickly enough to keep up with population growth. This is the story behind the soaring prices we hear about in the news. Digging a bit deeper, it could also be a key factor in falling birthrates and adults who continue to live in their parents’ home. So, how do we get serious about building the homes people need? Shouldn’t the market be driving toward an equilibrium?
The market is hot (again), but the shortage is chronic. Part of the problem is undoubtedly zoning, especially in the regions with the greatest demand. In New Jersey, the Mount Laurel doctrine has been a valuable tool since the 1970s, when it established the basic legal principle that zoning is a state action that may not be used to exclude entire classes of state residents from particular communities; to do so is inconsistent with the 1947 New Jersey Constitution. (I simplify, but not too much.) The New Jersey Fair Housing Act, which the state legislature enacted in 1985 to follow the Mount Laurel cases, has helped produce a significant number of regulated affordable units, over the years. Yet Mount Laurel, though based on an exemplary principle, has invited constant political resistance. Its implementation has been obnoxiously complicated. Worse, it does little tangible good for New Jersey residents who don’t fall into the income band for affordable housing — or even many who do, because the demand always outstrips the availability of units.
Yet today, more than four decades after Mount Laurel crystallized the concept of exclusionary zoning, the impacts of a chronic housing shortage reach much further up New Jersey’s socioeconomic hierarchy than they did in 1974, when the first case was argued before the New Jersey Supreme Court. That is, there remains a severe shortage of decent, affordable housing units for poor and working-class people. But there is also a dearth of homes for sale (or rent) at higher price points, in many communities — a bottleneck similar to ones that have formed, to greater or lesser degrees, in other high-cost metropolitan regions throughout the world. Not surprisingly, out-migration continues apace. Yet immigration keeps the overall population going up. Those who stay pay more for less.
So how can this unmet housing need be met? And should housing policy necessarily be bureaucratized, or could it be pursued more effectively by unlocking the private production of more market-built, non-income-regulated units? One concept that the Mount Laurel formulas acknowledge is filtering. That is, older units (often well built!) will become more affordable, through market forces, when newer units are produced quickly enough to soak up a lot of the high-end demand. This is how, for example, poor and working-class people inherited the incredible (if neglected) Art Deco apartments of the Grand Concourse (for a time — they are getting expensive again!).
I believe the next frontier will be a process of artfully (at best) customizing and improving zoning laws. Done wisely, this will foster the construction of market-rate homes that complement our existing neighborhoods while improving land values and strengthening public finances.
My latest piece is up at TAC‘s New Urbs — an essay reflecting on how nature and culture have shaped the urban patterns of the Mediterranean region, and what we might learn from the wisdom of this particular Old World approach. Not surprisingly, the writings of Camillo Sitte (about Italian towns, in particular) figured heavily in this piece — as did a fascinating scholarly book: Mediterranean Urbanism, by Besim Hakim, which identifies, translates (!), and analyzes many of the written laws that historically shaped the towns and cities of Southern Europe and the Near East. Hakim’s book, which examines influences from Greece and Rome through Byzantium and Islam, is an incredible resource for understanding one of the world’s richest cultures of traditional urbanism.
Last year, I put together a series of bullet points about the sustainability of a culture and its customs. This list is in the spirit of Blake’s Proverbs of Hell (but sadly not as poetic) — or maybe the Maxims of Equity from the English Chancery tradition. That is to say, they are related as a bundle, but not necessarily in order. What sparked this exercise was an attempt to express how the forms of traditional urbanism are cumulative artifacts of the actual lives and living patterns that particular towns and cities have hosted and supported over generations; and that there is value in looking at traditional urbanism as a bundle of customs — forming a larger culture.
In order to develop a framework that looked at what made urban customs a sustainable culture (or an integral part of a larger one), I made an effort to square my observations about urban patterns with more general patterns that signal vitality in a living culture and its customs. In addition to urban history, Aristotle’s Politics, Burke’s Reflections, and a variety of readings on the English common law each had some influence on the substance of these — filtered through my own thoughts.
I had initially thought this bulleting exercise would be the basis for an essay, but it has been more challenging that I’d expected to conceive of a way to pull these strands together into a single coherent narrative that is more effective than the present list. I think my next step may be to distill this framework down to something tighter and more manageable, then apply its principles to the various incremental aspects of town-building. For now, here are some interim Maxims on the Vitality of Community, Culture, & Customs:
- Culture comprises customs, which are the primary shaping factors of a community’s characteristics.
- Culture is formed by individuals sharing and reiterating a bundle of customs, and transmitting these to other individuals across time and place.
- Successful customs temper or channel human nature — they are shaping factors that create better outcomes from natural impulses.
- Successful customs are simple: they can be learned by almost all and sustained by the force of habit.
- Excessive complexity discourages the formation of a common custom.
- Customs are distillations of experience that often contain more wisdom than brilliant, tabula rasa proposals; they are the products of survival bias.
- The so-called social sciences have supplanted the social arts, which once preserved and transmitted more complex customs: law, religion, philosophy, rhetoric, fine arts, politics, and (sadly) war.
- The English common law, the Western canon, the English language, music, and traditional urbanism are examples of elaborate and high-level secular customs in our own culture.
- Most customs have high-level and vernacular threads; these complement each other.
- These are composed of doctrines, texts, and physical patterns (respectively) that have survived; they have intrinsic wisdom that yields benefits even without being fully understood.
- As Holmes wrote, the path of the law is experience, not logic. This could be said for all customs.
- Ceremonies (e.g., weddings and funerals, board meetings, religious services, public records) reflect simpler but still formal customs, with similar advantages.
- Practices related to arts, crafts, and home life — food! — follow similar but less formal patterns. Practices related to dress and manners, games and entertainment, as well.
- Cultural transmission is initiated by (1) lived examples, (2) writing and art, (3) teaching.
- Cultural transmission is received through (1) an individual’s immersion (2) observation and self-directed study, and (3) formal education (in descending order).
- Individuals sort themselves out, within their limited latitude, according to the roles that best fit them. Over time, the resulting life patterns of many individuals coalesce into a social hierarchy. There is danger in upsetting the results of this process too quickly or stridently without knowing the consequences. This awareness is a fundamental impulse of conservatism.
- Yet — circumstances and rigid customs can mechanically assign individuals to positions that may not be appropriate to their talents and abilities; there is injustice, and possibly danger, in allowing these mismatches to persist too long. Awareness of this is a fundamental impulse of liberalism and social reform.
- Every culture, at every time, offers a unique a mix of latitude and obstacles that affect an individual’s autonomy in this sorting process; individuals and their characteristics are filtered through this mix.
- Individuals’ fortunes rise and fall with the fortunes of the groups to which they belong. There is no individualism in a vacuum.
- Things that work tolerably well, to paraphrase Burke, should be cast aside only after great thought; stability should be valued.
- Who decides what’s tolerable? A critical mass that chooses toleration over disruption.
- Social hierarchies don’t need to be ideal or just to be tolerable; but if they are especially pernicious or dysfunctional, they lose legitimacy and invite challenges.
- Social hierarchies may have no moral justification, but their tendency to take similar shapes throughout history indicates a futility in attempting to dismantle them under tolerable circumstances.
- Social hierarchies may be most useful as a method of organizing society. They limit the proportion of individuals who can be decadent and create incentives for many people to work and pursue improvement.
- Consumerism corrodes culture and wastes wealth. Savings and durable products should be promoted by economic policy; not debt and disposable products.
- Corporate charters without accountability to the community are an industrial-age legal distortion. Traditionally, shareholders were granted limited liability in exchange for public benefits bestowed by their organization. Modern corporations, freed from such obligations, are zombies marching through what remains of the cultural landscape.
- Sales taxes on consumption, cash assistance to those in need, and the freedom to be resourceful are better than property taxes, loans, and excessive rules.
- Most things should be built to be permanent; but these should be repurposed, or replaced, as needed — without excessive interference by the law.
- Consumable and disposable items should be a limited fraction of all that is made, apart from food and fuel.
- True wealth is that to which one has access without money: the bounty of the land, the reciprocal help of real people, the inheritance of a culture, the assets already owned. Most wealth should be held in these forms, not in currency or debt instruments.
- Tribalism based on a shared culture is a cohesive force. It can be good, as long as it does not cross into bigotry toward outsiders or hostility to individual difference.
- However, the danger of self-righteous or aggressive mobs/factions must always be kept in mind. They seem to be a natural outgrowth of the healthy aspects of tribalism; so does small-mindedness. Blake said to expect poison from standing water.
- Liberal customs like due process, separation of powers, and freedom of conscience have evolved to temper these excesses, and must be jealously preserved. These, too, are among our particular customs and have not developed organically in many human cultures.
- Political communities, per Aristotle, must be small enough for trust to exist between members. Too much anonymity leads to alienation, cynicism, and contempt.
- Most people like to stay close to home, and customs should facilitate this norm. A smaller fraction like to travel often or migrate. A stable and dynamic culture has room for both tendencies, acknowledging that they complement one another.
- Those who stay home deepen the culture; those who engage with outsiders exchange ideas and counter parochialism.
- Communities must fulfill and sustain the humanity of their members, not just economic and security needs. This entails supporting the human/customary aspects of community (e.g., aesthetics; idiosyncrasies; traditions).
- Laws that hew roughly to the patterns of power and human nature can be legitimate; at some point, raw power or common instinct will ignore paper laws. If the powerful have certain customs, challenge them very cautiously.
- The very wealthy are obviously powerful; but so is the self-righteous mob. Successful customs acknowledge both truths.
- Successful cultures jealously guard the welfare of their people — the agents of their culture — and actively develop the cultural fluency of the next generation.
- Political communities that manifest successful cultures prioritize their customs through education, resource stewardship, trade, and wise investment; they favor the wellbeing of their own members because doing so encourages loyalty, but also because their members are the basic agents of the culture.
- Education is a positive force in transmission of customs, including the intellectual traditions of critical thought and self-reflection. At its best, our own culture of education builds on its traditions and canonical texts but does not propagandize or cater to closed minds. This fosters the customs of precedent and continuing debate.
- A broad middle class, as Aristotle prescribed for political stability, is also best suited to transmit a healthy culture. With durable wealth distributed across self-governing communities, it can support local cultural institutions and raise healthy and educated children — who can sustain and transmit the culture down to the next generation.
Interested in readers’ thoughts.
My latest article at TAC‘s New Urbs is a response to the recent op-ed in the Wall Street Journal by Donald Trump and Ben Carson. Contrary to the president’s rhetoric, allowing people to build neighborhoods that evolve in response to land markets is an old common-law tradition — and one that has been increasingly distorted by local governments over the last century, under an ever-more-restrictive morass of zoning requirements.
I argue that measures that would restore even some space for neighborhoods to grow organically, in response to demand, ought to be embraced by Americans across the political spectrum. New laws in California, Oregon, and Minneapolis are good first steps. And proposals to condition certain streams of federal infrastructure funding on having non-exclusionary local land-use laws in the communities that benefit from such taxpayer investments should not be dismissed out of hand.
Another mainstream piece — this one by Justin Fox at Bloomberg — zooms in on the role of zoning laws in the housing crisis of metropolitan America. This one focuses on the abnormality of the American approach, which has set aside large portions of our municipalities for single-family housing since the days of Euclid v. Ambler. It feels like we’ve reached a crescendo of MSM coverage of the zoning-affordability question. Here’s another recent article from The Economist. This trend in coverage is good news.
Time to note a major victory: the City of Minneapolis is on board with YIMBYism in a serious, substantial way. Minneapolis has become the first major U.S. city to adopt a comprehensive plan that eliminates single-family-only zoning districts. And, although its amended zoning still caps out development of many parcels at just three units, it will still (in broad theoretical terms) allow builders to triple the number of housing units within those neighborhoods. That’s impressive. And since housing markets are more regional than municipal, and Minneapolis is the largest city in its region, I predict this legislation (presuming it passes the remaining hurdles) will have a salutary effect on housing affordability throughout the Twin Cities, for years to come. This really is great news.
In a related story, the Oregon Legislature may soon consider a Democratic bill to eliminate single-family-only zoning districts in cities with a population of 10,000 or more. The fact that the lead sponsor is the House Speaker indicates the degree of acceptance that our kind of zoning analysis has attained, politically, in a very short time. Of course, there is pushback, as there always is in politics. But once it comes into focus, the picture is pretty clear, and economy, equity, and the environment all call for one basic solution: expanding the latitude of property owners to build more housing in response to the need for … more housing. People see the need to stop protecting a calcified status quo that is working for fewer and fewer people.
When I first started writing here about exclusionary zoning laws and their distortion of housing prices (way back in 2010, when I was a law student at Rutgers) it remained a very arcane issue. The basic nexus between restrictive land use policies and declining affordability had been well documented in New Jersey case law through the Mount Laurel decisions of the 1970s and 80s. But outside the local community of housing activists, the slow crisis of an artificial, regulatory shortage of housing units in growing metropolitan regions was hardly on anyone’s radar. Today, housing activists on both right and left accept this common-sense analysis: zoning laws that limit development of new units play a major part in the lack of housing affordability in growing cities.
I got into this issue because I saw people being displaced from their long-term neighborhoods across the New York & New Jersey region in the late 1990s and early 2000s — and nobody with a voice seemed to be noticing. Since then, the soaring cost of housing options in metropolitan America has become, perhaps, the most glossed-over factor among the myriad economic challenges facing Millennials. Now, finally, we are making some real progress, and although we’re not there yet, I am more optimistic than ever.
Cheers to everyone who is out there working on the front lines.
Sad to report that a promising and important piece of legislation went down to defeat this week in the California State House. SB-827 , placed in the hopper by Senator Scott Wiener (D-San Francisco), would have superseded municipal zoning ordinances to permit five-story housing development within half a mile of most railroad stations, and within a quarter mile of certain major bus routes.
California, of course, has some of the highest home prices in the world. More than its booming tech economy, a resistance to new development, combined with decades of population growth, has driven the crisis. Local political resistance comes from two sources: sentiment and shrewdness. Between residents who hate change, and those who realize that their own property values are inflated (at least while the music keeps playing) by an artificial shortage, it is usually possible to muster opposition to any new proposed development if the permission-granting institution is only accountable to municipal residents. SB-827 would have overridden the local political resistance to new development in the parcels most able to support higher densities than what is presently allowed.
The shortage of affordable housing in the metropolitan regions of California — as in the regions surrounding New York City, Washington, and several of the capitals of Western Europe — is perhaps the most salient driving force behind rising inequality in the West. High housing costs block people from moving to the cities where the opportunities exist; they shut people out of opportunities to build equity in real estate; and they enshrine the economic advantages of those who inherit, or can afford to purchase, real estate in hot markets. Ryan Avent wrote about this phenomenon at length in his well-written piece, The Gated City. LT has belabored it for years. And my recent article advocating for a left-right consensus on zoning reform is focused on the costs of bad zoning policy.
The good news is that, although SB-827 has been defeated, it has also significantly raised the profile of the nexus between zoning and housing supplies. The expectation (and certainly my hope) is that a revised version of the bill will be presented soon. It is a hopeful sign that in the California State House, even the bill’s opponents were forced to concede that the diagnosis was accurate, even as they rejected the prescription. This issue is not going away, and neither is the impetus to address it. I don’t think we can (or should) be returning to a Victorian-era, common-law land use policy, where bare-bones building codes, private covenants, and nuisance lawsuits are the only restraints on private development. BUT, we do need to move in the direction of significantly liberalizing the density restrictions on housing development in competitive real estate markets. SB-827 would have been a major step in that direction; and with the heightened awareness that its debate has caused, creative variations on the proposal can now be tested in the laboratories of democracy.
Only with a lot more supply — new units — can the cost of housing be returned to some sort of equilibrium with people’s incomes. And only with such a change can we hope to create in the economic centers of the West a tangibly more egalitarian economy.