Zoning – Where Have We Come From? Where Are We Going?

Most people probably have not thought much about zoning – unless there has been a controversial issue in their own neighborhood. Last year, zoning became a big topic in Connecticut. Legislation was introduced to move control of local zoning ordinances back to the state legislature (where such jurisdiction originates) in order to encourage higher density housing in Connecticut’s 169 towns and cities. A pitched battle was fought between progressives pushing a wholesale re-write of Connecticut’s zoning laws and conservatives seeking to retain local control.

This debate is back on the agenda. Recently the CT Mirror began a sponsored series – The Two Connecticuts – Race and Place, featuring Sara Bronin, founder of Desegregate CT. Before we jump in with two feet on one side or the other, let’s look at the history of zoning laws and think about the question – what is the appropriate role of zoning and what principles should we apply in the zoning debate?

First, we have to ask – Why do we have zoning at all? Shouldn’t a property owner have the right to do whatever they want with their property?

Property owners have the right to use their property as they see fit – until they violate the rights of others. Examples might include – water run-off, groundwater pollution, excessive noise, smells etc., that travel onto other people’s property, thus violating those neighbors’ rights to the peaceful enjoyment of their own properties. We could just litigate any perceived violation, but zoning allows neighbors to agree on at least some of the rules up-front and reduce conflicts.

Interestingly, Houston, Texas provides a real-life example of a thriving city without zoning laws specifying land use, although it does have laws covering density and height restrictions.

The first step towards zoning law in America predates the founding of The United States. In 1631, Governor John Winthrop banned thatch roofs and wooden chimneys in Boston, which was aimed at preventing fire from spreading from one property to another. In 1678, Boston further restricted property rights by enacting a law requiring that structures be built of stone with slate or tile roofs.

In 1869, New Orleans enacted an “anti-nuisance” ordinance banning slaughterhouses within the city limits. This led to several suits by New Orleans butchers that were consolidated and became known as the slaughterhouse cases. However, in addition to addressing the serious public health issues created by butcher shops throwing animal parts into the city streets, the law also granted a monopoly to a single company, controlled by seventeen individuals, to conduct all slaughter-house business for the city. This latter provision upended the Fourteenth Amendment (after an 1873 Supreme Court Decision on the matter), and was a major setback to Reconstruction.

The Boston and New Orleans laws dealt with public safety by preemptively limiting property rights to prevent the violation of the neighbors’ rights to the quiet enjoyment of their property. However, these examples applied to entire cities.

Zoning as we think of it today, with differing restrictions and uses on specific zones within a single jurisdiction, was invented during the progressive era in California. Zoning was created largely in response to the needs of developers, who wanted to build sizeable residential communities. They had the option to create deed restricted communities, but this strategy only worked after the initial purchase of a large plot, before the subdivided plots we sold to end users. Berkley, California saw an influx of population from the San Francisco earthquake of 1909. By 1914, a man named Duncan McDuffie campaigned to establish a city planning commission:

Starting in 1914, Duncan McDuffie initiated and directed the efforts of the private Berkeley City Club to establish a City Planning Committee and raise the money to pay one-fourth of the cost of bringing German architect Werner Hegemann to the East Bay to produce a joint infrastructure and beautification plan for Berkeley and Oakland…. Duncan McDuffie’s perspective on city planning and zoning derived directly from his experience in subdividing single-family residence tracts. In an address to the City Club in 1916, he emphasized that experience: “Through the use of proper restrictions, a well-designed street plan and suitable improvements, it is possible absolutely to determine in advance the development and character of an entire residence tract,” and thus avoid “the evils of uncontrolled development.” In his view, the purpose of the Civic Art Commission was to utilize the precedent of private restrictions to create public zoning: “In Berkeley the value of protective restrictions has been amply demonstrated by their use in private residence tracts. The adoption of a district or zone system by Berkeley will give property outside of restricted sections that protection now enjoyed by a few districts alone and will prevent deterioration and assist in stabilizing values.” Berkeley’s zone plan would not only be an aid to the homeowner, but would also “protect the business districts of the city against the competition created by scattering stores through residence districts. ” In addition, it would “protect the manufacturer by giving him a district on the water­front, convenient to both rail and water transportation, in which he will be free from attack” by “unreasonable neighbors.”

McDuffie’s efforts were successful and Berkley’s city council adopted a zoning ordinance on March 10, 1916 – four months before New York City adopted its zoning ordinance that had been driven by high-fashion retailers on Fifth Avenue.

The concept of zoning was so popular that in 1924, Herbert Hoover, then the Secretary of Commerce, gather a panel of experts to write a Standardized State Zoning Enabling Act that states could copy. The government printing office sold 55,000 copies and nineteen states used the standard act as a model for their own zoning laws.

Today we are stuck with the legacy of the numerous unintended consequences of the Progressive Movement’s enthusiasm for government planning. Complex overlapping land use and environmental restrictions restrict owners’ rights to use their property, despite changing economic, ecological, and demographic conditions.

Today’s property owners see their current zoning as a property right, which they paid for in the acquisition of that property. Single family homeowners often want to retain the features of their neighborhoods – quiet streets that are safe for bike riding, etc.. Industrial enterprises don’t want zoning changes to force them to move to new locations. When we change zoning laws, we create winners and losers. Thus, creating an incentive for corruption and bribery as well as a fountain of campaign contributions to politicians in a position to make such decisions. This raises the question – how do we unscramble the egg?

For example, one widely touted provision of Raised Bill 1024, during last year’s legislative session was for the state to override local ordinances and permit as-of-right multifamily development on 50% of lots within one-half mile of a train station. Obviously, there could be great benefit to transit-oriented development (if, of course, people ever decide to resume commuting to the office). But as one First Selectman put it – How am I supposed to decide which 50% of the lots get these valuable development rights and which do not? I can’t be put in the position to pick winners and losers from among our residents.

One creative solution to the problem might be to conduct a Dutch auction for development rights among the properties affected by a proposed change. Each could bid an amount (expressed as a percentage of their assessed valuation) that they would be willing to pay to be granted the new development rights. The aggregate proceeds of the auction could be distributed to the property owners not receiving new development rights, either because they did not bid or did not submit a winning bid (again, proportionate to their assessed valuations). This way the winners of the value created by the zoning change would pay monetary compensation to the losers, who would bear the brunt of the costs of the changes.

Let’s hope that Connecticut’s citizens and legislators can learn from our past mistakes and find a better way forward than either the current mess or some of the proposed state-wide one-size-fits all solutions that fail to take local conditions into account. We need to respect existing property rights, account for the environmental externalities of development, and provide flexibility to accommodate changes in demographics, environment, and economic conditions. This balancing act will require a great deal of thought and open minds on the part of all involved.

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