GOODBYE TO SINGLE FAMILY ZONING!

The State Legislature and the Governor ruin California as Governor Newsom signs 18 bills to boost housing production - And SAY GOODBYE TO SINGLE FAMILY ZONING!

Governor Gavin Newsom

Hi Sustainable TamAlmonte Friends,
On October 9th, Governor Gavin Newsom signed 18 bills designed to promote housing production.  Many of the housing bills that the Governor signed take away local control of land use, substantially increase housing density and population potential, and establish streamlined ministerial approval processes for housing projects, thereby exempting these projects from the California Environmental Quality Act approval process.  And SAY GOODBYE TO SINGLE FAMILY ZONING!
The subsequent housing densification and population growth will increase the risk of adverse impacts on the environment, public health and safety, traffic congestion, infrastructure, utilities (water supply), public services (schools), views, sunlight, privacy, neighborhood character, and quality of life.
The bills will create unfunded mandates due to the fact that there is no funding for dealing with the above listed significant impacts.  Communities will be forced to substantially increase taxes to try to alleviate the adverse impacts, although many of the impacts will be unavoidable.
Assembly Bill-68
One example is AB 68.  This horrendous bill eliminates single family zoning and allows 3 units where only one unit used to be allowed. 
The bill prohibits cities from requiring additional parking spaces when homeowners convert garages to new housing.  This will force more cars to park on the street, change the aesthetics of communities and make it harder for emergency vehicles to reach areas with narrow roads, among other problems.

Excerpt from the Assembly Floor Analysis of AB-68:
"AB-68 makes major changes to the Accessory Dwelling Units (ADUs) and Junior Accessory Dwelling Units (JADUs) statutes to facilitate the development of more ADUs and JADUs and addressed perceived barriers to ADUs and JADUs, including the following:"
"1) Increases the number of ADUs allowed to be constructed per lot by potentially allowing two ADUs on lots with single-family homes, and multiple ADUs on lots with multi-family dwellings;
2) Enables ADUs and JADUs to be approved ministerially if there is an existing or proposed primary residence;
3) Prohibits a local ADU ordinance from:
a) Imposing requirements on minimum lot size to allow ADUs;
b) Setting a maximum ADU dimensions that do not permit an ADU of 850 square feet for an ADU or one or fewer bedrooms and 1,000 square feet for two or more bedrooms, 16 feet in height, with four-foot side and rear yard setbacks;
c) Requiring replacement parking when parking is demolished in the creation of an ADU;
d) Requiring a setback for an ADU that is built within an existing structure or in the same footprint as an existing structure, and require no more than a four-foot setback for all other ADUs;
4) Allows no more than 60 days to ministerially consider a completed ADU permit application; and
5) Increases enforcement, including enabling HCD to notify the Attorney General when a local agency is in violation of this law." 
The total floor area of floor-space for a detached accessory dwelling unit can be up to 1,200 square feet.
As far as we could tell, the only exception for fire prone areas is the following:
"Off­-street parking shall be permitted in setback areas in locations determined by the local agency or through tandem parking, unless specific findings are made that parking in setback areas or tandem parking is not feasible based upon specific site or regional topographical or fire and life safety conditions."
Please read below to find out about all the housing bills that Governor Newsom recently signed.
Best regards,
Sharon

Sharon Rushton

Chairperson

Sustainable TamAlmonte

sharont@tamalmonte.org | http://tamalmonte.org

https://www.gov.ca.gov/2019/10/09/governor-gavin-newsom-signs-18-bills-to-boost-housing-production/

Governor Gavin Newsom Signs 18 Bills to Boost Housing Production
Published: Oct 09, 2019

Signs SB 330, major legislation to remove local barriers to building more housing

Signs AB 1763 to incentivize affordable housing density

Signs package of bills to ease construction of accessory dwelling units

Legislation builds on urgent action undertaken by the Administration to tackle California’s housing affordability crisis

SACRAMENTO – Building on the state’s historic actions and investments this year to tackle the housing affordability crisis, Governor Gavin Newsom today signed 18 bills designed to help jumpstart housing production. Included was SB 330, major legislation aimed at removing local barriers to housing construction and speeding up new development.

”Since taking office in January, my Administration has been urgently focused on California’s housing affordability crisis,” said Governor Newsom. “The high cost of housing and rent is putting the squeeze on family budgets, and our housing shortage threatens our economic growth and long-term prosperity.”

“In 2019, California has taken urgent action to address this challenge. We’ve invested more in new housing than at any point in our history, and we have created powerful new tools to incentivize housing production. Now, we are removing some key local barriers to housing production. This crisis has been more than a half century in the making, and this Administration is just getting started on solutions,” added Governor Newsom.

Today, at the Legal Aid Society of San Diego, the Governor signed SB 113 by the Committee on Budget and Fiscal Review, which will enable the transfer of $331 million in state funds to the National Mortgage Special Deposit Fund, and establishes the Legislature’s intent to create a trust to manage these funds to provide an ongoing source of funding for borrower relief and legal aid to vulnerable homeowners and renters. This follows the Governor’s proposal in August to provide a new, sustainable, ongoing source of funding for legal aid for renters and homeowners through local nonprofits, and builds on the state budget’s additional $20 million in legal assistance to help California renters fight unjust evictions.

The Governor today signed the following bills to remove barriers and boost housing production:

- SB 330 by Senator Nancy Skinner (D-Berkeley) establishes the Housing Crisis Act of 2019, which will accelerate housing production in California by streamlining permitting and approval processes, ensuring no net loss in zoning capacity and limiting fees after projects are approved.
- AB 1763 by Assemblymember David Chiu (D-San Francisco) creates more affordable housing by giving 100 percent affordable housing developments an enhanced density bonus to encourage development.
- AB 116 by Assemblymember Philip Ting (D-San Francisco) removes the requirement for Enhanced Infrastructure Financing Districts (EIFDs) to receive voter approval prior to issuing bonds.
- AB 1485 by Assemblymember Buffy Wicks (D-Oakland) will build on existing environmental streamlining law and encourage moderate-income housing production.
- AB 1255 by Assemblymember Robert Rivas (D-Hollister) requires cities and counties to report to the state an inventory of its surplus lands in urbanized areas. The bill then requires the state to include this information in a digitized inventory of state surplus land sites.
- AB 1486 by Assemblymember Philip Ting (D-San Francisco) expands Surplus Land Act requirements for local agencies, requires local governments to include specified information relating to surplus lands in their housing elements and annual progress reports (APRs), and requires the state Department of Housing and Community Development (HCD) to establish a database of surplus lands, as specified.
- SB 6 by Senator Jim Beall (D-San Jose) requires the state to create a public inventory of local sites suitable for residential development, along with state surplus lands.
- SB 751 by Senator Susan Rubio (D-Baldwin Park) creates the San Gabriel Valley Regional Housing Trust to finance affordable housing projects for homeless and low-income populations and address the homelessness crisis in the region.
- AB 1483 by Assemblymember Tim Grayson (D-Concord) requires local jurisdiction to publicly share information about zoning ordinances, development standards, fees, exactions, and affordability requirements. The bill also requires the Department of Housing and Community Development to develop and update a 10-year housing data strategy.
- AB 1010 by Assemblymember Eduardo Garcia (D-Coachella) will allow duly constituted governing bodies of a Native American reservation or Rancheria to become eligible applicants to participate in affordable housing programs.
- AB 1743 by Assemblymember Richard Bloom (D-Santa Monica) expands the properties that are exempt from community facility district taxes to include properties that qualify for the property tax welfare exemption, and limits the ability of local agencies to reject housing projects because they qualify for the exemption.
- SB 196 by Senator Jim Beall (D-San Jose) enacts a new welfare exemption from property tax for property owned by a Community Land Trust (CLT), and makes other changes regarding property tax assessments of property subject to contracts with CLTs.
The construction of accessory dwelling units (ADUs) can also help cities meet their housing goals and increase the state’s affordable housing supply. The Governor signed the following bills to eliminate barriers to building ADUs:

- AB 68 by Assemblymember Philip Ting (D-San Francisco) makes major changes to facilitate the development of more ADUs and address barriers to building. The bill reduces barriers to ADU approval and construction, which will increase production of these low-cost, energy-efficient units and add to California’s affordable housing supply.
- AB 881 by Assemblymember Richard Bloom (D-Santa Monica) removes impediments to ADU construction by restricting local jurisdictions’ permitting criteria, clarifying that ADUs must receive streamlined approval if constructed in existing garages, and eliminating local agencies’ ability to require owner-occupancy for five years.
- AB 587 by Assemblymember Laura Friedman (D-Glendale) provides a narrow exemption for affordable housing organizations to sell deed-restricted land to eligible low-income homeowners.
- SB 13 by Senator Bob Wieckowski (D-Fremont) creates a tiered fee structure which charges ADUs more fairly based on their size and location. The bill also addresses other barriers by lowering the application approval timeframe, creating an avenue to get unpermitted ADUs up to code, and enhancing an enforcement mechanism allowing the state to ensure that localities are following ADU statute.
- AB 671 by Assemblymember Laura Friedman (D-Glendale) requires local governments’ housing plans to encourage affordable ADU rentals and requires the state to develop a list of state grants and financial incentives for affordable ADUs.

On Tuesday, the Governor kicked off his statewide tour to sign a series of bills that build on his Administration’s efforts to tackle the housing affordability crisis. In Oakland, he signed the nation’s strongest statewide renter protection package and a number of other bills to address the rising costs of rent and housing. 

- AB 1482 by Assemblymember David Chiu (D-San Francisco) creates a statewide rent cap and eviction protections that are critical to combatting California’s housing and cost-of-living crisis.

Housing affordability has been a top priority for Governor Newsom. The state budget signed in June made a historic $1.75 billion investment in new housing and created major incentives – both sticks and carrots – to incentivize cities to approve new home construction. The budget also provided $20 million for legal services for renters facing eviction as well as $1 billion to help cities and counties fight homelessness.

The high cost of housing and rent has also been the focus of executive action. In the first weeks of his administration, Governor Newsom signed an executive order that created an inventory of all excess state land in order to find parcels to develop into affordable housing, launching partnerships with six California cities in April to develop affordable housing on that land and, last week, announcing the first Request for Proposal (RFP) on state-owned land will be issued in the City of Stockton. The Newsom administration has also enforced state housing law – putting more than forty cities on notice that they were out of compliance with state housing requirements and in jeopardy of legal action.

In total, the Governor signed the following housing bills:

AB 68 by Assemblymember Philip Ting (D-San Francisco) – Land use: accessory dwelling units.
AB 116 by Assemblymember Philip Ting (D-San Francisco) – Local government.
AB 587 by Assemblymember Laura Friedman (D-Glendale) – Accessory dwelling units: sale or separate conveyance.
AB 671 by Assemblymember Laura Friedman (D-Glendale) – Accessory dwelling units: incentives.
AB 881 by Assemblymember Richard Bloom (D-Santa Monica) – Accessory dwelling units.
AB 1010 by Assemblymember Eduardo Garcia (D-Coachella) – Housing programs: eligible entities.
AB 1255 by Assemblymember Robert Rivas (D-Hollister) – Surplus public land: inventory.
AB 1483 by Assemblymember Tim Grayson (D-Concord) – Housing data: collection and reporting.
AB 1485 by Assemblymember Buffy Wicks (D-Oakland) – Housing development: streamlining.
AB 1486 by Assemblymember Philip Ting (D-San Francisco) – Surplus land.
AB 1743 by Assemblymember Richard Bloom (D-Santa Monica) – Local government: properties eligible to claim or receiving a welfare exemption.
AB 1763 by Assemblymember David Chiu (D-San Francisco) – Planning and zoning: density bonuses: affordable housing.
SB 6 by Senator Jim Beall (D-San Jose) – Residential development: available land.
SB 13 by Senator Bob Wieckowski (D-Fremont) – Accessory dwelling units.
SB 113 by the Committee on Budget and Fiscal Review – Housing.
SB 196 by Senator Jim Beall (D-San Jose) – Property taxes: community land trust.
SB 330 by Senator Nancy Skinner (D-Berkeley) – Housing Crisis Act of 2019.
SB 751 by Senator Susan Rubio (D-Baldwin Park) – Joint powers authorities: San Gabriel Valley Regional Housing Trust.

ZONED OUT: The Legacy of Code Next

How to Sell Upzoning

How to Sell Forced Densification to Libertarians

By  The Antiplanner | December 12, 2018 | Housing

When cities pass zoning rules (as Missoula, Portland, and many Portland suburbs have done) mandating minimum-density zoning — so that people are forced to either build high-density housing in existing low-density neighborhoods or build nothing at all — libertarians lead the charge against such rules. But urban planners have managed to achieve the same result, and gain the support of some who consider themselves libertarian, by:

1. Drawing an urban-growth boundary or passing similar policies forbidding development outside the existing urban footprint;
2. Waiting a few years for the resulting supply shorting to push up housing prices;
3. Blaming high housing prices on residents of single-family neighborhoods who object to densification of their neighborhoods;
4. Proposing a law or ordinance that effectively eliminates zoning in those single-family neighborhoods.

Thus, we have a writer for Reason magazine supporting a law that would eliminate much of the zoning in San Francisco and other unaffordable California cities. Another Reason writer endorses a new zoning ordinance in Minneapolis that allows multifamily housing in single-family neighborhoods. The Mercatus Center blames high housing prices on single-family zoning as does a report from the Cato Institute.

Yet the reality is that every major American city except Houston has single-family zoning, but only a few are unaffordable — and those few all use urban-growth boundaries or otherwise restrict development of rural lands outside the existing urban areas. Yes, regions with such restrictions also have single-family zoning, but blaming high housing prices on single-family zoning is like saying that, because people would get sick eating rat poison and smoking marijuana, therefore marijuana smoking should be illegal.

The self-described free-market advocates who support densification have apparently forgotten that the housing markets in unaffordable regions are completely distorted by the urban-growth restrictions. I’ve heard one of the leading free-market advocates of densification claim that the San Francisco Bay Area has run out of land for development and therefore has to densify, when in fact only 17 percent of the land in the nine-county area has been urbanized — a number that isn’t going to change thanks to California’s immovable growth boundaries. 

One-third of homes built in the United States today are multifamily, up from one-fifth ten years ago. This isn’t a response to market demand: The vast majority of Americans, including Millennials, still aspire to live in single-family homes. Instead, the growth of multifamily is a response to various growth restrictions that have made it nearly impossible to build single-family homes in many urban areas. 

One of the historic objections to the suburbs is that all of the homes looked alike (which was really true only in the first Levittown). Ironically, people have begun to notice that the Jane-Jacobs-inspired multifamily housing being built to day all tends to look alike: “bland, boxy apartment” buildings that some have labeled “McUrbanism.” Such buildings cost considerably more per square foot than single-family homes, so are only “affordable” because each housing unit is much smaller.

This the America urban planners want to build in the future: bland little apartments and condos that in many cities will be more expensive than a large, single-family home would be in the absence of growth restrictions. It is sad that some libertarians have fallen for this scheme.

Portland is now proposing to weaken or eliminate zoning in single-family neighborhoods throughout the city to make housing “more affordable.” Fortunately, free-market advocates in the Portland area still remember that housing there is only really expensive because of the growth boundary, not because of zoning within the boundary.

https://ti.org/antiplanner/?p=15409

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Why "Zoning Shock Therapy" doesn't make housing less expensive.

How Zoning Rules Would Work in a Free Society

How Zoning Rules Would Work in a Free Society

Mises.org Publish Date: 

June 17, 2009 - 12:00 AM

Author 1: 

Ben O'Neill [1]

It is well known that the libertarian political philosophy is antagonistic to coercively imposed rules that limit people's freedom to use their private property as they see fit. Indeed, the very essence of libertarianism is the nonaggression principle that condemns the initiation of force against person or property. As a result, libertarians have been critical of zoning laws, which restrict the ability of property owners to develop their property or use it for their desired purposes.[1]

Because of this antipathy to zoning laws, some critics of libertarianism fear that a libertarian society would leave people incapable of exercising any control over their neighborhood and preserving the character of their surroundings. They worry that the decisions of surrounding property owners could change the character of their neighborhood to the detriment of their property values or preferred lifestyle. For example, some may worry that their local park will be developed into a housing complex leaving them with nowhere to take their children to play. Others worry that their neighbors may build huge structures that overshadow their now sunny backyards. Whatever their specific concerns, many people share the view that zoning laws are required to prevent their neighborhood from being despoiled by outrageous building developments or uses.

Fears of inappropriate building development or drastic changes to the character of a neighborhood are often grossly exaggerated. Some are inclined to fear that without the protection of coercive zoning laws a skyscraper might be built in a small suburban neighborhood or a brothel might open up next to a children's preschool. However, even in the absence of any restrictions, the possibility of such outcomes is extremely remote and fears that the repeal of zoning laws would open the floodgates to outrageous developments such as these are overstated.[2]

Building developments and commercial usage of buildings are almost always strongly driven by the desire for profit and therefore they will almost always cater to the tastes of prospective property purchasers and customers. There is not likely to be much demand for residential or commercial space in a skyscraper towering over a sleepy suburban area, simply because such a tall development would unnecessarily and wastefully economize on cheap and ample ground space, leading to excessive expense. Similarly, no brothel worth its salt would choose to open next door to a children's preschool (or at least operate during school hours) since this would almost certainly drive away potential customers. In general, developments such as these are avoided simply by the desire of property owners and businesses to do business in an area that is suitable to their particular industry.

Private property and voluntary zoning

Contrary to the alleged necessity of zoning laws, there is ample scope for noncoercive solutions to zoning issues in the context of a free society of private-property ownership and nonaggression. In particular, private ownership of property allows for restrictive covenants to be agreed between the property owner and another party so that the allowable uses of land are limited according to the wishes of the parties. It follows that property owners within a given neighborhood may contractually agree to impose restrictions on themselves with respect to the allowable developments on their land or the allowable uses of their property.

In some cases, restrictive covenants may mimic the kinds of restrictions present in zoning laws and may therefore be used as a means of voluntary zoning. Property owners may agree to limit developments on their land to a certain height as in existing zoning laws; they may agree to paint their properties in a similar color scheme, as with some housing complexes; or they may agree to restrict the use of their property to particular uses, such as residential use.

It is no mystery why private-property owners might voluntarily undertake to restrict their own property rights. They might do so for monetary payment or other valuable consideration. For example, some property owners might enter into restrictive covenants in order to secure similar restrictions on their neighbors. In such cases, a property owner would weigh off the benefit of having an enforceable restrictive covenant over his neighbor's property against the detriment these restrictions would cause his own property ownership. A property owner would also have regard not only to his own desired usage of his property, but also to the likely desires of prospective purchasers and the resultant effect on the market value of his property.

Instead of relying on quid pro quo restrictions, a system of voluntary zoning would also allow people to purchase restrictive covenants from a willing party. For example, a man with a strong aversion to dogs in his neighborhood could seek to purchase a restrictive covenant preventing dogs from living on his neighbors' properties even if he does not desire any particular restrictive covenant being imposed on his own property (obviously he will not allow dogs there himself, but he does not need a restrictive covenant to do this). In such a case, the neighbor would consider whether or not the money offered is more valuable to him than his existing right to have dogs living on his property. Regardless of the particular preferences of the parties involved, voluntary agreement to a restrictive covenant would demonstrate ex ante gains to all parties to the covenant.[3]

Voluntary zoning through private restrictive covenants already exists in areas where government has not imposed zoning laws. Such covenants have shown themselves to be perfectly adequate to protect property owners against adverse development by others.[4]Voluntary agreements for restrictions on the use of property also exist in apartment and townhouse developments where property owners govern common areas under a corporate arrangement. These arrangements exist even in areas in which there are existing government zoning laws, though they are often crowded out by these laws. Some complexes have restrictions on use (such as rules against pets), some complexes have restrictions on development or alterations, and some have rules requiring a certain uniform color scheme or aesthetic design for all properties.

While some may prefer not to live in complexes such as this, where they are restricted by their neighbors in the use of their property, there can be no moral objection to this from a libertarian perspective so long as these arrangements are undertaken with the consent of property owners. Of course, in many cases, property owners will buy into a scheme with existing restrictions, but in this case the property title purchased is already restricted, and the restrictions therefore become a condition of their purchase.[5]

Some may object that zoning rules involve substantial positive externalities and that voluntary zoning would result in a "free-rider problem" since those property owners who refuse to agree to restrictions may nonetheless benefit from the effects of restrictions agreed upon by other property owners. However, even if a property owner can safely rely on others to enforce restrictive covenants to his own benefit — and this is by no means certain — and even if such positive externalities lead to problems of economic efficiency, it is sheer economic nonsense to suggest that coercion is the proper means to solve these efficiency problems.[6]

A property owner should not be compelled to join a restrictive covenant simply because he derives a benefit from a covenant between others. Nor should any other person be forced to contribute to the value of this unsolicited good. Any "free-rider problem" in this situation is merely an assertion of an inefficient underutilization of restrictive covenants, for which there are several available entrepreneurial solutions such as pledge contracts,[7] buyouts of property, and other voluntary arrangements. If property owners do not avail themselves of these voluntary options, then this is prima facie evidence that any such restrictions are not in their best interests so that no efficiency gains are possible.[8]

Problems with government zoning

Like most other government legislation, zoning laws are a violation of property rights. They involve forcibly imposing a restriction on legitimate private-property use through legislative fiat. A person, who has acquired property through homesteading or through voluntary trade with another person who legitimately owned the property, should rightly be able to use his property in any way that does not intrude upon the property rights of others.

Some may argue that property rights are themselves restricted in scope to the conditions inherent in the initial land title, so that zoning rules may be built into the initial grant of land by government. Under this view, freehold [2] title may be considered as granting reasonably wide property rights, whereas leasehold [3] title grants narrower property rights, which are restricted by zoning or other rules. The problem with this position is that it implicitly assumes that government is the legitimate owner of all (otherwise) unowned land, so that property rights in this land are acquired by government grant and substantiated by government certificates of title.

However, this position is incorrect. The right to property is not determined by government decree; it is determined by the objective principles of homesteading and voluntary trade. While government certificates of title may approximate genuine property rights and provide evidence of acquisition, they cannot grant property rights since the government holds no genuine rights over unowned land to begin with. In fact, most government certificates of title illegitimately specify restrictions on land use that are untenable according to the rules of homesteading.

Aside from the coercive nature of government-imposed zoning laws — which is itself sufficient reason for objection — these restrictions are also far less likely to accord well with the preferences of local residents than systems of voluntary zoning undertaken between the residents themselves. Indeed, the fact that these restrictions are imposed without the consent of property owners demonstrates that they are not in accordance with the desired arrangements of at least some of those property owners. Moreover, lacking an unhampered private market in property titles and restrictive covenants, the government has no means of rational economic calculation of people's preferences when imposing zoning rules. 

Regardless of their intentions, government officials simply cannotweigh the pros and cons (to local residents) of proposed restrictions, since they have no rational objective means of economic calculation. For these reasons, it should come as no surprise that zoning laws are one of the most controversial areas of local governance, with many dissatisfied parties.

Controversy over zoning laws is aggravated by the fact that coercive zoning laws must inevitably involve arbitrary bureaucratic discretion. Changes in communities — such as growth in population, changing demography, or growing or diminishing affluence — can give rise to new demands for certain kinds of property and property uses, and the restrictions on property development and use must therefore be adapted to suit changing demands. In the case of voluntary zoning, restrictions like this will occur by renegotiating existing arrangements and providing consideration to induce covenant holders to allow changing restrictions. This ensures that rational economic calculation occurs. However, in the case of government-imposed zoning laws, this will instead involve political advocacy and political decision making — in particular, zoning laws will inevitably involve substantial discretionary power being arrogated to government bureaucrats and being exercised without recourse to any rational means of economic calculation.

In addition to the calculation problem involved in coercive zoning laws, these laws also make the enforcement of restrictions more remote for the actual people involved with the property in question. Whereas a system of voluntary zoning gives direct enforceability to individual property owners and covenant holders, a system of government-imposed zoning laws gives control to their political masters, bureaucrats and politicians.[9] This relocation of the locus of decision making entirely changes the character of the decision and the incentives involved.[10] Property owners and covenant holders have intimate direct knowledge of local conditions and are motivated by their desire to improve their amenities and property value. On the other hand, bureaucrats and politicians in charge of zoning issues usually lack this intimate local knowledge and are instead motivated primarily by job security, predicated on political popularity. As with other forms of coercive top-down planning, the accumulation of decision-making power in these political bodies renders the zoning process less responsive to the genuine needs of affected residents — and more responsive to political lobbying.

Because zoning problems involve continually changing local conditions, bureaucrats and politicians are inevitably vested with substantial discretionary power in the creation and enforcement of restrictions. As with other forms of political power vested in the government, this discretionary power is inevitably exercised in favor of those groups who support the power of the decision makers. In a representative democracy, a local property owner, affected by zoning decisions, is merely another face in the crowd whose power over zoning decisions is limited to his political influence with the local council. As a result, most people have little ability to exercise control over the zoning decisions in the neighborhood in which their property is located. Instead, such a process is liable to be overly influenced by politically influential groups, such as wealthy property developers or highly organized groups of perennial busybodies.[11] In some cases, local residents may successfully band together to influence the decisions of their political masters, but this is by no means guaranteed, and their property rights are highly insecure as a result.

In fact, like other discretionary bureaucratic rules that allow interference with property rights, zoning rules allow bureaucrats and politicians to hold developers and other property owners to ransom. Even in the course of arguing in favor of zoning laws, law professor Bradley Karkkainen nonchalantly tells us that, while zoning laws may appear to completely prohibit certain developments, the reality is a little different:

In fact, zoning functions more like a "property rule" [a rule protecting an entitlement by injunctive relief], allowing neighborhood residents (or their governmental representatives) to enjoin a proposed development that does not conform to current zoning, while leaving room for the would-be developer to "buy" the entitlement to build through design concessions, campaign contributions, and the like.[12]

Here we see the real nature and purpose of zoning laws. Since such laws invest discretionary control over property development and use in our "governmental representatives," these laws allow political parties and other political interest groups to extort funding from wealthy developers — funding that is usually forthcoming.[13]

In addition to being inherently corrupt, this practice of extorting money from property developers often leads to a quid pro quo in which governments use coercion to assist wealthy developers in acquiring land and trampling on the legitimate property rights of others (through eminent domain laws or other coercive means). One commonly hears the complaint that local governments are in the pockets of developers, but it is rarely appreciated that this is an inevitable consequence of the government's attempts to extort support from developers through coercive zoning laws. This is just one manifestation of the inevitable regulatory and political capture that occurs when governments attempt to control private business.

This neat little symbiotic arrangement, which is of great benefit to major political parties, may help to explain the large disparity between a highly critical academic literature[14] and the zoning policies of government. Over a decade ago, Professor Karkkainen noted that:

Extensive academic literature critical of zoning has accumulated in the last twenty years, beginning with Bernard Siegan's landmark 1970 study lauding Houston's non-zoning approach, and followed shortly thereafter by Robert Ellickson's broader theoretical critique of zoning. Subsequent academic literature has been almost as uniformly critical of zoning as public policy has been uniformly in favor of it. Although few academic defenders of zoning have stepped forward, governmental decision-makers have proceeded with zoning apace, apparently untroubled by the academic onslaught.[15]

Government zoning laws do not merely operate more arbitrarily and less efficiently than voluntary restrictive covenants, they also crowd out these private arrangements. In some cases this occurs because voluntary restrictive covenants are prevented by law or because the government arrogates to itself large areas of land and refuses to contractually restrict future development in these areas, relying instead on zoning laws that government officials can change unilaterally.[16] Indeed, one of the most common instances of controversy and anguish in local government administration occurs when a government sells or rezones previously vacant government land near to or inside existing residential areas for property development. Such cases show the illusory nature of zoning laws in binding government decisions. Even where voluntary restrictive covenants are not restricted by law, and government is not the owner of land that is subject to some proposed restriction, government-zoning laws often crowd out private arrangements simply by giving property owners the false assurance that "the government will take care of it." Thus, in addition to being inherently coercive, zoning laws derogate from more efficient and effective voluntary arrangements.

Pollution, noise and property rights

Of course, there is one situation in which libertarians countenance forcible restriction of property development or use without any contractual agreement. That is the case where the development or use of property is itself an aggression against another person or their property — that is, where a particular property development or use violates the property rights of another. This can occur in cases where a development or use of property produces excessive pollution or noise to surrounding properties or invades their space.[17] Thus, opening a coal-fire power station or an oil refinery in the middle of a residential neighborhood may legitimately be prevented by residents, since the pollution would involve a violation of their property rights.

Force may legitimately be used only to prevent actual property invasions by others and not merely to prevent noninvasive actions that detrimentally impact upon our enjoyment of our property. For example, in the absence of some voluntary restrictive covenant, there is no inherent right to prevent one's neighbor from keeping a car body in his front yard or painting his garage an unsightly color. This is the case even if the aesthetic distaste for this ugliness is widespread, such that it impacts the market value of adjoining properties — there is no such thing as a right to preserve the value of one's property, only its physical integrity. Moreover, this is true regardless of whether one is speaking of the objective market value, the subjective value to the property owner, or any other measure of value.[18]People are entitled to protect the integrity of their property from invasive acts by others; they are not entitled to forcibly prevent legitimate acts by others merely to protect the market value of their property.

Economic calculation and efficiency

Notwithstanding that there is no inherent right to the subjective or market value of one's property, the existence of private-property rights and consequent market value is very useful for the purposes of economically efficient decision making. When property is privately owned and traded it acquires a monetary value, allowing it to be compared with other factors of production and use. This allows people to undertake rational economic calculation in matters involving property and property restrictions and thereby make decisions that do not squander scarce resources. Zoning restrictions that are formulated as enforceable property rights under voluntary restrictive covenants would be capable of creation or repeal by voluntary agreement, including agreements involving monetary payment. It follows that these restrictions would also acquire a monetary value, allowing for rational economic calculation and better economic efficiency. By knowing the monetary value of a restrictive covenant, people would be able to determine whether these assurances are worthwhile to them, when weighed off against other goods.

In order to take advantage of the greater certainty and efficiency of voluntary zoning, property owners and others concerned about neighborhood development should seek the repeal of coercive zoning laws and the privatization of existing government land holdings. This would prevent voluntary development and use restrictions from being crowded out by government, and would allow property owners and others to enter into restrictive covenants that are adjudicated by objective contractual agreement rather than by the vicissitudes of political lobbying and bureaucratic whim.

https://mises.org/library/how-zoning-rules-would-work-free-society

.

Notes

[1] For a libertarian critique of zoning laws, see Jim Fedako "Zoning is Theft [7]." See also Hans-Hermann Hoppe and Walter Block, "On Property and Exploitation" (International Journal of Value-Based Management 15 (2002): 232–33); Murray N. Rothbard, For a New Liberty: The Libertarian Manifesto (Auburn, Ala.: Ludwig von Mises Institute, 2006), pp. 93, 162–63, 197.

[2] For more discussion on this point see Hoppe and Block, "On Property and Exploitation."

[3] On mutual ex ante gains from voluntary trade see Murray N. Rothbard, Man, Economy, and State with Power and Market, Scholar's Edition (Auburn, Ala.: Ludwig von Mises Institute, 2004), p. 277.

[4] For example, law professor Bernard Siegan has examined the use of voluntary zoning in Houston and found that voluntary zoning contracts mimic zoning laws in other cities. He also finds that zoning outcomes in Houston are achieved more efficiently than in cities with zoning laws. See Bernard Siegan, "Non-Zoning in Houston" (Journal of Law and Economics 13(1): 71–147).

[5] The same cannot be said of restrictions imposed by zoning laws, even though these restrictions often apply at the time of purchase. These restrictions are not a legitimate condition of a property purchase, because the restrictions were initially imposed by coercion rather than by agreement from the property owner. It follows that the initial property owner has every right to sell his full entitlement to the property (ignoring the zoning restrictions) despite the fact that it is illegitimately restricted by the government. The same applies to subsequent purchasers who sell the property. In each case, the coercive restriction is illegitimate and the owner is entitled to own and sell the full entitlement to the property. Thus, unless there is some agreement to the contrary between buyer and seller (without government coercion), the buyer purchases the entire property title from the seller and any restriction imposed by the government remains illegitimate as against the new property owner.

[6] In fact, the imposition of a coercive arrangement cannot possibly lead to a Pareto improvement in the utility of the various parties since coercion implies detriment to at least some party. For more on the "problem" of free riding and the ridiculousness of the alleged solution of government provision see Ben O'Neill, "Solving the 'Problem' of Free Riding [8]."

[7] That is, contracts that do not take effect unless and until a certain number or group of people all agree to be a party to the covenant.

[8] In particular, economic modeling of the alleged preferences and utility curves of the relevant parties cannot rationally be used to demonstrate that their preferences are in opposition to the preferences revealed by their own action.

[9] For more on this see Fedako's "Government Laws are not Contracts [9]."

[10] For broader discussion of the importance of the decision-making unit on the structure and incentives of the decision, see Thomas Sowell, Knowledge and Decisions (New York: Basic Books, 1996), pp. 11–20.

[11] Of course, this may be merely self-defense, since it is often property developers who are the target of illegitimate zoning laws in the first place.

[12] Bradley C. Karkkainen, "Zoning: A Reply to Critics" [10] (Journal of Land Use and Environmental Law 10(1): 22). (Emphasis added.)

[13] Observe that property developers are often among the biggest donors to major political parties for local government elections and are also commonly found to be "donors" directly to planning bureaucrats themselves. While the former instances of extortion are generally regarded as a legitimate part of a vibrant democracy, the latter create quite a scandal. A recent example of the latter occurred in a large planning scandal in Australia, with revelations that planning bureaucrats in the Wollongong City Council extorted bribes from developers in exchange for planning approvals. The entire council was sacked after the Independent Commission Against Corruption (ICAC) found it was dominated by "systemic corruption." See "Corruption 'systemic' — all councillors 'should go' [11]."

[14] For example, see Siegan, "Non-zoning in Houston"; R.C. Ellickson, "Alternatives to Zoning: Covenants, Nuisance Rules and Fines as Land Use Controls" (University of Chicago Law Review 40(4): 681–81); J.Z. Krasnowiecki, "Abolish Zoning" (Syracuse Law Review 31: 719–53); D.W. Kmiec, "Deregulating Land Use: An Alternative Free Enterprise Development System" (University of Pennsylvania Law Review 130(1): 28–130); W.A. Fischel, The Economics of Zoning Laws: A Property Rights Approach to American Land Use Controls (Baltimore, Md.: John Hopkins University Press, 1987); A.J. Cappel, "A Walk Along Willow: Patterns of Land Use Coordination in Pre-zoning New Haven (1870–1926)" (Yale Law Journal 101(3): 617–42). On the topic of free riding and zoning, see also T.J. Miceli, "Free Riders and Distortionary Zoning by Local Communities" (Journal of Urban Economics 30: 112–22) and "Optimal Fiscal Zoning That Distorts Housing Consumption" (Journal of Real Estate Finance and Economics 5(4): 323–31).

[15] Karkkainen, "Zoning: A Reply to Critics," pp. 2–3.

[16] Of course, a private land owner would have every right to refuse a restrictive covenant so long as they legitimately owned the land by homesteading or voluntary trade. The problem here is not so much that the government refuses to enter into contractual restrictive covenants with its land — the problem is that the government's land monopoly is illegitimate in the first place.

[17] There is an abundant literature on the libertarian theory of pollution, including noise pollution. See especially Murray N. Rothbard, "Law, Property Rights, and Air Pollution" (Cato Journal 2(1): 55–99). [12]

[18] In particular, coercive zoning laws cannot be justified on the basis of the "consumer surplus" or alleged "collective value" of a property in excess of its market value, as is asserted by Karkkainen. In fact, voluntary zoning involves a property owner's ownassessment of the value of his property, including any "consumer surplus" above the market value.

Topics: 

Free Markets [13]

World History [14]

Austrian School: 

Interventionism [15]

Private Property [16]

---

Source URL: https://mises.org/library/how-zoning-rules-would-work-free-society 

Links
[1] https://mises.org/profile/ben-oneill
[2] http://en.wikipedia.org/wiki/Freehold_(English_law)
[3] http://en.wikipedia.org/wiki/Leasehold
[4] http://store.mises.org/Man-Economy-and-State-with-Power-and-Market-The-Scholars-Edition-P177.aspx
[5] https://mises.org/library/how-zoning-rules-would-work-free-society
[6] http://blog.mises.org/archives/010150.asp
[7] http://mises.org/daily/2077
[8] http://mises.org/daily/2769
[9] http://mises.org/daily/2484
[10] http://www.law.fsu.edu/journals/landuse/Vol101/karkkain.pdf
[11] http://www.illawarramercury.com.au/news/local/news/general/corruption-systemic-all-councillors-should-go/195472.aspx
[12] http://mises.org/rothbard/lawproperty.pdf
[13] https://mises.org/topics/free-markets
[14] https://mises.org/topics/world-history
[15] https://mises.org/austrian-school/interventionism
[16] https://mises.org/austrian-school/private-property

The Façade of New Urbanism & the Form-Based Code

The Façade of New Urbanism & the Form-Based Code

Lolita Buckner Inniss, J.D., L.L.M.
Associate Professor of Law, Cleveland-Marshall School of Law,
Cleveland State University, Cleveland, Ohio

Thank you, Carol, for that introduction. It’s a pleasure and an honor to be here this morning. I just want to say that I’ve very much been looking forward to this conference, to hear some ideas about property and land use. Very often, when you’re working in academia, you have your head in the books a lot, and we don’t come out too often and see real people until we come to conferences like this.

First of all, I want to start with an overview of my talk today. First and foremost, what I’m going to be offering here is a critique of New Urbanism in general and “form-based code” in particular and as a tool of New Urbanism. I also want to talk about the fact that form-based code, while it’s often touted as being more flexible than zoning and is a great method to overcome a number of the problems that we see in our cities—urban decay, segregation, economic downturns, what I began to see, however, particularly as I taught the first year on property, is that form-based code is not generally doing what advocates said.

Property is a significant part of my teaching assignment. What we do for a large part of the first semester is to talk about land use and the history of land use. It began to occur to me, as I work with students and work with the materials, that a number of the new tools for zoning, such as form-based code, are really doing the opposite of what a number of their proponents claimed. So I began to look at some of the reasons for that. In short, my argument is that form-based code is nowhere near what it’s cracked up to be. First and foremost, it tries to do by design what was ultimately spontaneous. What it comes down to, and I’ll talk about this in more detail, is that in the city as we have known it and have come to understand it in the United States, and certainly also in Europe, city growth was spontaneous growth. I think it’s problematic from the outset to assume that you can do now by design what it has taken us one hundred years to do in our urban areas. I think you would have to challenge any plan that purports to design something that didn’t come about by design. So that’s one of the first problems I’ve had with it.

Next, New Urbanism. As I’ll talk about in a few moments, when you talk about form-based code, you’re really talking about one of the principal tools of what’s called the new urbanism, sort of a way of getting back to the “old urbanism” and the old city. What I’ll discuss is the fact that the new urbanism, like the old urbanism—that’s deeply contested. The city that you and I may remember may be very different than the city that somebody else remembered. So again it’s problematic when someone purports to put together a plan that’s supposed to take us back to the old urbanism. We all remember and lived in different types of cities, and so there’s no way that we’re going to design something that reflects a vision. There is no single vision. There are multiple visions that could never begin to be incorporated in any one single vision, So that’s another problem.

Finally, the charette process, as Carol mentioned, relies on the “community” in order to sort of pull together form-based code plans. All too often it doesn’t work out as claimed, which is one of the things I talk about in my essay where I discuss the rebuilding of New Orleans that’s the basis for this talk. That’s a wonderful example of what happens when you claim that the community is going to be represented. All too often, form-based code plans end up representing the elites who put them together, who bring in the experts, who all too often monopolize the talk that’s going on. And it’s a wonderful way for a very, very small strand of people in the community to have their views represented as “what everybody wants.” All too often, that’s simply not the case. So that’s my third critique.
Let’s talk a little bit about what form-based code is. I think it’s useful to do this simply because we get a lot of expressions that are thrown around about form-based codes, smart codes, community planning, and there must be at least a half dozen ways to refer to this. When I talk about form-based code plans, that’s really the sort of global generic name for things like “smart code.” Just as an aside, really quickly, smart code is a type of form-based planning. And smart code, particularly the type that’s being commercially prepared and sold to towns (I think it’s by the Duany Company, the Duany people, have a package of about fifty pages), is a template and what they try to do in smart codes is implement form-based code ideology, zoning, urban planning, building codes. They wrap it all up in a nice neat template and you can take this out to your town and put it into place. But that is actually a type of form-based code.

What would describe any plan that’s form-based code would be one that’s first and foremost supposed to be “collaborative”; it’s supposed to be something between government and citizens. So if you’re looking at a plan and ask if it’s a type of form-based code, is there a collaborative piece between government and citizens? Next, it’s regulating “design” rather than “use.” And so it’s pre-scriptive rather than pro-scriptive or de-scriptive, meaning by prescriptive that it tells you exactly what you are supposed to be doing, as opposed to proscriptively telling you what you can’t do, and descriptive telling you the sorts of things you want to do.

Now it doesn’t really take a whole lot of thought to realize that, “Well, wait a minute, if this is supposed to be collaborative and help the community, why would we prefer a plan that’s going to tell me exactly what I ought to be doing, versus something more general?” And that’s certainly problematic in and of itself. There is strong attention to details in

Zoning: A Response to the Critics that Call us NIMBYS for defending our Community from Unwanted Development

Zoning: A Response to the Critics

ZONING: A REPLY TO THE CRITICS

BRADLEY C. KARKKAINEN[*]
Copyright © 1994 Journal of Land Use; Environmental Law

I. INTRODUCTION In November 1993 voters in Houston narrowly rejected a referendum to establish zoning in that city.[1] This was the third time in a half-century that Houston voters had rejected zoning. Thus Houston remains the only major city in the United States without zoning.

To zoning's supporters, Houston represents an unenlightened backwater that has stubbornly resisted the tide of twentieth century land use regulation. To zoning's critics, Houston stands as a lonely beacon of economic rationality, or at least a living laboratory in which alternatives to zoning can be fairly tested.[2]

Extensive academic literature critical of zoning has accumulated in the last twenty years, beginning with Bernard Siegan's landmark 1970 study lauding Houston's non-zoning approach,[3] and followed shortly thereafter by Robert Ellickson's broader theoretical critique of zoning.

[4] Subsequent academic literature has been almost as uniformly critical of zoning[5] as public policy has been uniformly in favor of it. Although few academic defenders of zoning have stepped forward, governmental decision-makers have proceeded with zoning apace, apparently untroubled by the academic on slaught. By some estimates, 9,000 municipalities, large and small, in every region of the country and representing at least 90% of the nation's population, have zoning schemes in place.[6]The closeness of last November's vote, and Houston's status as the only major holdout against zoning, can give little cheer to zoning's critics. No trend toward abolishing zoning appears on the horizon, and indeed, non-zoning in Houston hangs by a thread.

Why is this? How do we account for the fact that this nearly universal feature of local government enjoys such disrepute in academia? Are local governments simply in the grip of irrationality? Have local officials hoodwinked the public on a massive scale? Or have the academic critics somehow missed the mark?

This article argues that the academic critiques of zoning, though based on insights that have some validity, are often overstated. They simply prove less than their authors think they prove. In particular, this article argues that in some circumstances, such as in mature neighborhoods in large urban centers, zoning can be a rational and justifiable public policy response to very real problems and can be made to work at least as well as any of the alternatives the critics propose.[7] The analysis of this article is descriptive in part, illustrating zoning at its best, in rather limited circumstances.[8] Yet principally this article is normative, discussing zoning as it might be made to work, in a way that is justifiable and that meets many of the objections offered by its critics. Therefore, the purpose of this article is not to offer a general defense of zoning. Its task is the more modest one of showing that many of the critiques, despite the broad claims of their authors, should not be taken as general indictments of zoning, but rather as indicators of particular dysfunctions that must be addressed if zoning is to work effectively.

II. TRADITIONAL JUSTIFICATIONS FOR ZONING Initially, the question of why we even have zoning must be addressed. Zoning's proponents traditionally have offered two rationales, neither of which stands up to close scrutiny. First, zoning advocates suggest that zoning is necessary to protect or enhance property values,[9] particularly the values of residential properties (and especially single-family homes).[10] On this analysis, zoning serves principally to protect property owners from the negative externalities of new developments. Without zoning (or some compa rable system of land use regulation), residential property owners would face plummeting property values if a development with significant negative externalities—a junkyard or brick factory, for example—moved in next door. Moreover, the mere prospect that such a development could move in would tend to depress the value of residential property. The solution is to divide the municipality into zones so that industries are sited near other industries, commercial enterprises near other commercial enterprises, and residential properties with other residential properties.[11] This rationale has some intuitive appeal, based on the real or imagined horrors of entirely unregulated development.

A significant problem with the property values rationale for zoning, however, is that such a rationale