The zoning code. Amended, revised, sometimes more than 100 pages. The vast majority of people have never looked at one. But zoning codes impact where we live, how we get around, how tall our buildings become, who are our neighbors and how many parks we have.
On the good side, zoning is the reason you don’t live next to a slaughterhouse, steel plant or other noxious activity that produces noise and foul and dangerous smells to the air. On the bad side, it is why so much of America is segregated — by race and income — a result that widens the gap between haves and have nots. And why people who feel they are always in their car, feel that way for good reason.
Zoning reform can help solve the housing crisis while promoting transit, walkability, and mixed-use.
On the hopeful side, zoning reform can help solve the housing crisis while promoting transit; walkability; mixed-use; mixed-income communities; and communities that protect nature, control sprawl and address climate change.
Planetizen.com credits social reformers in the early 1900s for giving birth to zoning “as a tool to exclude undesirable uses (such as noxious industrial facilities), reduce urban congestion, protect public welfare, and prevent the spread of slums.” Its research further states that zoning’s ugly side is its use “as a tool to maintain racial homogeneity and exclude ‘undesirable’ residents, sometimes outright banning specific ethnic groups, thus institutionalizing housing inequality.”
In 1910, Baltimore passed racial segregation laws, prohibiting Black people from moving into white-majority areas and vice-versa. Other cities passed similar ordinances until 1917, when the practice of racial zoning was declared unconstitutional.
But exclusionary zoning continued class and other segregation. Berkeley, California’s Elmwood neighborhood adopted single-family zoning, “effectively setting up the area to exclude lower-income households into the present day,” according to Planetizen.
David Morley, AICP, American Planning Association’s research program and QA manager, further explains zoning as the tool that drives everything about your quality of life, but didn’t exist for all of civilized time till the early 20th century.
Morley said historians generally traced zoning back to keepers of posh shops on New York City’s Fifth Avenue, who feared garment manufacturers and their employees would ruin the commercial district’s exclusive experience. The city’s zoning code that went into effect was quickly copied by cities around the United States.
The U.S. Supreme Court upheld the right of municipalities to impose zoning, via the 1926 Village of Euclid, Ohio vs. Ambler Realty case. Even that landmark case cast aspersions on affordable housing, when Supreme Court Justice George Sutherland wrote “very often the apartment house is a mere parasite” on a neighborhood.
“Think of zoning as rationalizing where things go and protecting people from truly noxious uses. Today, it might be hard for people to remember how dirty factories were,” Morley said. “Zoning descended from nuisance laws where cities said a slaughterhouse cannot be X number of feet from residences. They also grew to control separation between buildings, or building heights — to protect health, safety and welfare. But the concept of public welfare quickly got redefined as schemes for keeping land values high.”
Post World War II, when more than 10 million G.I.s returned from the battlefields and car ownership was exploding — auto-oriented suburbs grew like weeds. “Zoning was following real estate development trends. Large-scale homebuilders covered a lot of ground. The financial industry wants certainty in what it is lending to, so single-family zoning blanketed the nation,” Morley said.
Critics taking issues with Post War development patterns appeared in the early 1960s. That is when the Planned Unit Development (PUD) came into favor. “It was an option for large-scale developers — saying you don’t have to follow the letter of the law and you can get a mix of uses,” Morley said. “That was the first seismic shift of the way zoning worked for nearly half a century.”
Performance-based zoning came next, allowing a greater mix of uses and flexibility in development scale — in return for more open space or other benefits to the community where the development takes place. Bucks County, Pa., is known for its more comprehensive zoning ordinance, from that era.
Form-based codes address the relationship between building facades and the public realm.
Euclidean zoning, the name attached to decades of careful separation of uses, was countered in the early 21st century with the introduction of the form-based code. “A form-based code is a land development regulation that fosters predictable built results and a high-quality public realm by using physical form (rather than separation of uses) as the organizing principle for the code,” as defined by the Form-Based Codes Institute. “Form-based codes address the relationship between building facades and the public realm, the form and mass of buildings in relation to one another, and the scale and types of streets and blocks.”
Miami 21 is a famous citywide form-based code in South Florida. Though Morley notes that even form-based codes are hybrids, because while they encourage compact development and a mix of uses, they still regulate what uses can go where.
“The big whoopsie in zoning evolution is the way missing middle density has been erased from the landscape. In most places, it’s not allowed to happen,” he said. Missing middle refers to the range of housing that fits between single-family detached homes and mid-to-high-rise apartment buildings. It includes townhouses, duplexes, triplexes and quadplexes.
Morley said the Post War/Baby Boom era created so many single-family-only communities, that any other density started feeling unnatural. He said over the past few decades, there is a growing awareness that communities need missing middle and affordable housing.
“One point I like to make in general is that a lot of zoning is antithetical to what communities need,” Morley said. “Zoning is a powerful tool. Why not use it to create more affordable housing than to use its power to keep more of the same, aka preventing it?”
Salim Furth, senior research fellow, and Eli Kahn, research assistant, at the Mercatus Center at George Mason University, recently published a state legislature housing reform 2023 review, available at https://www.mercatus.org/research/policy-briefs/housing-reform-states-me..., which discusses bipartisan bills aimed at loosening zoning regulations to rein in local regulatory power. For instance, “Montana has become the first red state to enact sweeping housing legislation to confront a cost crisis,” Furth said.
The governor there convened a task force and several pro-affordable housing preemptive laws were passed with bipartisan support, which include:
- Streamlining the subdivision process, especially by expanding exemptions from the state’s environmental assessment requirement.
- Clarifying that cities can allow tiny homes.
- Opening commercial zones to housing development.
- Allowing duplexes anywhere that single-family homes are permitted in cities with more than 5,000 residents.
- Formalizing planning procedures and requiring each city to enact any five out of a list of 14 significant pro-housing regulatory changes.
- Limiting the use of design review.
- Requiring municipalities to permit accessory dwelling units (ADUs) without parking mandates or owner-occupancy requirements.
The entire architecture of how land use works contains a lot of local conditions.
“When spending political capital, we like to get the most juice for the squeeze. But we know the entire architecture of how land use works contains a lot of local conditions, so we have all these variances, special-use permits, special exceptions,” Furth said.
“Cities are super regulators, so everything is done by exceptions. The developer knows to get a lawyer, give contributions and they get their exceptions approved,” he observed. “Council members love the political contributions flowing and they get some say in the development. Even in very progressive cities, you end up saying ‘yes’ to very expensive housing and ‘no’ to more budget-friendly housing.”
Furth favors fair and predictable community benefit agreements. Rather than meting out contributions in each neighborhood, which can result in “zoning for sale,” he suggests a set payment charged to the developer and a menu of things a community can fund with it.
“New Rochelle, N.Y., introduced this approach, along with other innovations, to spark a downtown reinvestment surge that has funded tremendous city benefits,” Furth said. “There is a fixed, predictable dollar value that developers must pay. Neighbors can then help determine where the money is spent: on parks, computer space, a community center.”
Furth said adaptive re-use has worked in older, smaller mid-rise and high-rise buildings. But it will not work in office buildings with large floorplates (center units would have no windows) or single-story office park office buildings, which are too expensive to convert.
He said cities that are serious about affordable housing should buy older units to preserve existing workforce housing, and that the office apocalypse — many offices barely half full because of work from home after COVID that continues — can be addressed via zoning reform.
Furth cited a 2023 Florida bill that “allows not just the conversion of existing structures but new multifamily construction in any commercial or industrial zone, as long as a large share of the new units are restricted to moderate-income residents. … The measure also allows new multifamily buildings in these zones to match the density of the jurisdiction’s densest zone and to match the height limit of any zone within a mile.”
Planners Favor Zoning Changes
Jason Jordan, the American Planning Association’s (APA) public affairs director, said planners favor zoning code reform and streamlining the process to create housing. Legislative policy shifts at the state level are a response to project-by-project local zoning cases that cause delays and impose difficult political hurdles on developments that could deliver affordable housing.
“As economic growth has rebounded post pandemic, there is an even more acute problem when it comes to workforce housing, starting housing, senior housing,” Jordan said. “In too many places, we have processes, codes and regulations that are barriers to the supplies we need. We are now seeing reform that is removing things imbedded in codes that are barriers to housing. That means reducing minimum lot sizes and on-site parking requirements. It also means adding tools such as ADUs.”
Communities must come together and create a vision of what kind of housing it wants to accommodate its workforce, young families, seniors and people with disabilities. Then regulatory systems must be reformed to remove things in the zoning code that are barriers to that vision coming true.
For instance, Jordan said a defined code that allows developers to build by right is not giving the store away to developers. It is simply defining what the community wants from development, then giving developers predictability by being able to build without a string of variances, hearings and votes.
“If we know we need additional state and federal investment in tax credits to create housing, but we pour money into a broken system, we are destined to fail,” Jordan said. ‘We set rules that make it very difficult to get things built. Almost everything requires a variance. Variances becomes very politicized through neighborhood concerns and political agendas.”
He noted that a lot of things on the books in city zoning codes remain from industrialization, which begot separation of uses and created car-dependent suburbs. “The problem is that we have new sets of social and economic challenges that [old codes] don’t address. Seniors want to age in place. We need walkable, transit-served, age-friendly communities. People are working more from home. They want neighborhood conveniences, not only single-family homes where they live and work.”
Many states and cities are backing zoning reform that creates more housing options for a more diverse set of renters and buyers.
”Many states and cities are backing zoning reform that creates more housing options for a more diverse set of renters and buyers. Utah has linked housing reform to state infrastructure dollars, prioritizing funds to communities that are creating workforce housing. “Several cities are creating a pathway to gentle density and more housing by offering pre-approved missing middle and ADU designs,” Jordan said. “It makes it easier for small-scale and newer developers. It prevents them from getting bogged down in design and approval process that can kill a project. It can encourage more minority developers to build smaller, infill projects, like missing middle housing.”
Jordan also emphasized that those who work in city leadership, planning and zoning must also address the reality that zoning often was used as a tool of bigotry. “When we discuss zoning reform, we can’t leave out the exclusionary practices and racially directed practices. That has to be part of the conversation. We have to reconcile those ills and embrace environmental justice, the concept that land use has a role in breaking down artificial barriers that hurt marginalized people socially and economically.”
Beyond housing, land-use reform can also address climate change and transportation options. The Inflation Reduction Act gives direct financial support to communities that create a climate action plan. Vision Zero plans and Safe Streets initiatives in several cities are aimed at increasing pedestrian and bicycle safety, seeded by federal funds.
Last December, the U.S. Department of Transportation awarded nearly $700 million through its All Stations Accessibility Program to retrofit old rail and subway stations, adding elevators, ramps, and other improvements. The program, funded through the infrastructure law, is designed to improve the accessibility of transit rail stations so everyone, including people who use wheelchairs, push strollers, or cannot easily navigate stairs, can reliably access the rail systems in their communities.
Zoning Impacts on Affordable Housing Crisis
Senator Bob Casey, D-Pa., chair of the Senate Special Committee on Aging, held a hearing this summer to sound the alarm over the lack of affordable, accessible housing. He introduced the Visitable Inclusive Tax Credit for Accessible Living (VITAL) Act, which would increase the amount of accessible housing available for people with disabilities and older adults to meet their needs.
The Low-Income Housing Tax Credit (LIHTC) is a federal program providing tax credits to developers who build new housing for low-income renters. The VITAL Act would increase funding for the LIHTC program to increase the number of accessible homes.
“Investments in accessible housing are central to guaranteeing better outcomes in health and satisfaction for older adults and people with disabilities,” Casey said.
Casey also is developing legislation to provide assistance for land banks, which can address a number of issues by acquiring abandoned/vacant property and using it for affordable housing. Land banks serve a need while also uplifting the value of neighborhoods by replacing blighted lots with fresh infill development.
When cities reform zoning to allow more construction, the impacts are small but meaningful.
Yonah Freemark, a senior research associate at the Urban Institute, believes affordable housing has increasingly become a national issue. “When cities reform zoning to allow more construction, the impacts are small but meaningful. [But] zoning changes are inadequate alone to create affordable housing for the entire community,” he said. “We need to do a whole variety of things, such as increasing low-income housing tax credits, which has produced millions of affordable housing units around the country.”
Freemark authored a research paper on the impact of zoning changes and warns that there is no magic bullet when it comes to upzoning and housing affordability. He found that Downzonings (regulations that reduce density) definitely limit construction and worsen affordability, but he also found a mixed bag in researching upzonings, which allow increased density, concluding they “offer mixed success in terms of housing production, reduced costs, and social integration in impacted neighborhoods; outcomes depend on market demand, local context, housing types, and timing.”
Freemark said that he favors upzoning near public transit, so affordable housing is created in proximity to mobility. If the goal is to make life more affordable for the city’s workforce, that can be achieved by placing housing by transit so people can get to work without the high expense of owning and maintaining a car.
He also believes cities, counties, schools and other agencies are sitting on an asset that could be tapped for housing. “I think maximizing the use of publicly owned land is the number one most important thing we can add to the toolbox to promote affordable housing. We must identify what sites are owned by the public sector across various agencies, then maximize those sites to get more housing starts,” he said. “There is a lot of under-used public land that could be built on for zero cost of acquisition. We can then invest in a publicly owned housing developer to produce mixed-income housing units.”
Freemark said zoning reform must address affordable housing, but cities and regions should not stop there. Land use must also address preservation of nature, agricultural land and resources. “We shouldn’t just be talking about what we can build, but where we can build. We must look at infill zones versus the degree to which housing is being built in agricultural zones,” noting that development over farms not only decreases local food, but also increases municipal spending on myriad infrastructure, such as new roads, water, sewer, and schools, to serve suburban expansion into rural areas.”