Recently when I was flying over Texas, I saw from the air what makes Texas instantly recognizable: where in other states you will see streets laid out in straight line grids, what I saw were streets that seemed to have been laid out by someone who had been blindfolded. There seemed to be no coherent logic to what I was seeing, but what I perceived it to be was the result of one thing – freedom.
The Obama administration has released a publication entitled the Housing Development Toolkit. In its introduction it places the blame for the lack of affordable housing on the zoning codes of the last three decades, claiming that they have placed barriers to the development of such housing.
Remarkably, the publication includes some of the effects of more modern zoning codes (i.e., form-based codes or smart codes), two of which include “land use regulations” and “lengthy development approval processes” as the reason why multi-family housing projects aren’t being built.
Present-day zoning regulations are being blamed, but bear in mind that the more modern zoning codes have been in place in many cities for some time, some for nearly two decades. This does not stop the authors of the publication from vilifying those codes. The publication states, “The growing severity of undersupplied housing markets is jeopardizing housing affordability for working families, increasing income inequality by reducing less-skilled workers’ access to high-wage labor markets, and stifling GDP growth by driving labor migration away from the most productive regions. By modernizing their approaches to housing development regulation, states and localities can restrain unchecked housing cost growth, protect homeowners, and strengthen their economies.” It also states that such “laws plainly (are) designed to exclude multifamily or affordable housing.”
Recall that “affordable” housing does not mean what the term implies; in fact it means “subsidized”.
Of course, there are solutions to this crisis. Here is what they propose:
“Establishing by-right development.
“Taxing vacant land or donate it to nonprofit developers.
“Streamlining or shortening permitting processes and timelines.
“Eliminate off-street parking requirements.
“Allowing accessory dwelling units.
“Establishing density bonuses.
“Enacting high-density and multifamily zoning.
“Employing inclusionary zoning.
“Establishing development tax or value capture incentives.
“Using property tax abatements.”
Most zoning codes include “by-right” provisions. This essentially means that no special permission or rezoning has to take place for a developer to build a project.
For example, nothing special would be required for an office building to be built in office zoning district. The purpose for the establishment of by-right development per the publication is to expand the kinds of zones that multi-family projects can be built in. As we have found with many of the new zoning codes, this will likely mean that multi-family projects can be built in single-family home neighborhoods.
“Taxing vacant land or donate it to nonprofit developers” is a particularly insidious provision because it implies that local governments can increase the taxes of property owners that choose not to build on their own land, perhaps to the point that the owners are unable to pay the taxes. This amounts to a kind of eminent domain without the messiness of involving the courts. And at some point, vacant land could be defined to include the open spaces that can be found in home estates.
Allowing a local government to donate vacant land to nonprofit developers is even worse, because it would require the taking of the property before giving it away.
Kilo vs. New London, despite the fact that it was a completely unconstitutional ruling, gave dishonest governments the ability to steal land for “the good of the community” – another case of abusing eminent domain with impunity.
And who are these “nonprofit developers”? There is no such thing, at least not in the context we are speaking about here.
I will discuss the rest of these provisions in the next few articles, but for the time being suffice it to say that if this publication becomes enforceable policy – if it is not already – it will become the model for densification of our cities through strict zoning controls, even more strict than the zoning codes that are being enacted now.
At some point, local governments and private developers won’t have the freedom to do anything without the involvement of the federal government.