by Daniel Kay Hertz

So, I write about zoning a lot. But other than “more housing, please,” I’ve never really given much of an outline of what I think cities ought to do with their zoning codes.

Part of that is intentional. Thanks to some combination of a begrudging acceptance of political realities and a genuine belief in local communities’ right to have a say in their own development, I don’t think specific declarations about what should and should not be allowed are really useful or appropriate. But you have to start somewhere, and I think it’s necessary for those of us who are arguing for change to give some indication of where that change might take us.

Though I’ll get around to some specific ideas about building types in the Chicago area, I actually think that the most important question isn’t what will be built on your block, but how – and by whom – decisions about zoning will be made. In practice, after all, the answer to the first question will depend on the answer to the second.

So what would a good zoning process look like? On principle, I’d suggest it be:

1. Democratic, in the sense that everyone who is affected by the decision gets a voice, and

2. Effective, in the sense that it stands a good chance of meeting fundamental goals: that housing isn’t more expensive than it has to be; that housing policy doesn’t encourage the concentration of poverty or people of a given racial background; that nuisances are minimized; that communities are attractive to the people who live in them.

On both counts, the current zoning process in Chicago – and the vast majority of cities around the country – fails miserably. Decisions about what can be built where, at the moment, are generally made by some hyper-local official person or persons: either an alderman or a zoning board, often belonging to a relatively small municipality in some larger metropolitan area.

If this sounds like a democratic process, it isn’t. The issue is that a truly democratic system doesn’t just give some people a vote; it gives a vote to everyone affected by a given decision. This is why our federal government allows, say, Illinois to sue Indiana for dumping toxic waste into Lake Michigan: even if the voters of Indiana have signed off on that, democratic accountability demands that everyone who might be drinking Lake Michigan water be consulted.

In the same way, decisions about housing made in one neighborhood, or one suburb, end up affecting the housing market in the entire region. If Wilmette bans apartment buildings to prevent people with moderate incomes from moving there, then some other city will find those people arriving on their doorstep. If the alderman in Lincoln Park allows so little new construction that the neighborhood actually loses housing units, then the people who can’t find a place to live in their first-choice neighborhood will go to their second or third choices, driving up housing costs in Wicker Park and Bucktown. Under the current system, most of the people who end up being profoundly affected by zoning decisions don’t get to have any say in them.

Current zoning procedures also fail to do some of the most basic things we might expect from government regulation of housing. It makes housing more expensive than it has to be; encourages racial and economic segregation so extreme that what neighborhood you’re born in determines to a huge extent your life chances; and frequently fails to promote the kind of community character – aesthetic and otherwise – that residents want.

So we ought to change the way we make decisions about land use. Specifically, we ought to make those procedures a) more accountable to the full range of people who are affected by them, and b) more tied to the things we want to get out of housing policy.

The problem, of course, is that these aren’t necessarily complementary goals. In particular, the history of the United States suggests pretty strongly that there is a working majority in many places who would like to use housing policy to exclude undesirables, whether those are the poor, or some ethnic minority, or whatever. I don’t think this is an acceptable, or constitutional, outcome, although it’s notable that the Supreme Court seems to disagree with me re: poor people – and, to a significant extent, re: ethnic minorities, too.

But anyway, in the same way that, say, local voting regulations are subject to federal scrutiny, the best zoning reform proposals I’ve seen combine democratic accountability with some sort of protections for people who usually end up getting screwed by the democratic process.

One way to do that is keep the current system, but add to it some regional or state-level body with the power to review local decisions and overturn them if they violate some set of previously agreed-upon principles. Illinois has an incredibly weak version of this with the Affordable Housing Planning and Appeal Act, which requires that municipalities where less than 10% of the housing stock is deemed “affordable” come up with some plan to get up to 10%. So far, I don’t know of much evidence that that has changed much. New Jersey almost created a really strong version of this after the Mt. Laurel state supreme court decision, which unfortunately has mostly been dismantled since then.

A more top-down – but possibly more effective – approach would be a “zoning budget,” in which some regional or state-level body actually dictates how many new units need to be built, based on some previously agreed-upon principles – say, if prices go up X% relative to income, we need Y% more units – and then allows local governments to fight over exactly where they go, and how.

Finally, another possibility is to simply bribe homeowners to overcome their resistance to more construction near their homes. This would be accomplished through something called TILTs, which would essentially redistribute some of the new property tax revenue from new construction to existing homeowners.

At the moment, I’m more or less agnostic among these options, and whatever others may exist. (Except to say, I suppose, that TILTs seem like a rather regressive way of accomplishing saner zoning controls. But probably less regressive than our current zoning, so fine.) To be honest, I mostly just don’t know enough to have a strong recommendation, but also I tend to think that people should be allowed to figure out how they want to get to a particular goal. The point of all this is less to light the way to the one best reform, but rather to suggest the direction in which any successful reform ought to move: it needs to take into account the interests of everyone, not just a project’s immediate neighbors; and it needs to keep an eye on what housing policy is actually supposed to accomplish.

(Cross posted from City Notes)