Their Code and Ours

Zoning determines what kind of buildings can go where, and at what size. In the traditional model, different types of activities are divided up into various “use types”: residential, commercial, industrial, recreational, and so on. Areas, and even individual lots, can be used for more than one thing at a time, but the zoning code allows the state to detach these uses as desired.

The classic justification for separating uses is industry and housing: no one should have to live next to a smoke-belching factory. But the separation of uses has roots in less altruistic impulses. In 1885, the country’s first zoning code was introduced in Modesto, California, and it used bans on laundries to exclude Chinese workers and families from the most desirable areas of the city. About forty years later, New York City instituted zoning after high-end Fifth Avenue merchants lobbied the city to zone out manufacturing. Their goal was less to protect health and welfare than to prevent Jewish garment workers from walking down their streets and scaring away their patrician customers. Ten years after New York, Birmingham, Alabama used zoning to lock in residential segregation, producing a zoning code geographer Bobby Wilson calls “one of the most overt expressions of white supremacy ever put into law in the twentieth century.”

In addition to separating uses, zoning also limits the height and bulk of future buildings. This can be set in any number of ways and, like the separation of uses, can be done for a number of purposes: a plain and simple height cap can be put over a district, limiting how tall new buildings can be; a more flexible system can allow virtually unlimited height, as long as buildings are set back to allow for light and air to pass through their lots; limits can be placed on new buildings based on the size and shape of neighboring properties, in order to encourage continuity; built forms can be mandated to increase or limit the space between buildings, and between structures and the street; a “bonus” can be offered to developers, allowing them to build more if they provide a desired feature, such as cheaper housing or open space; an allowance can be included for property owners to sell “air rights” — or the theoretically developable space above and around a structure — from one building to another, which can then build taller than is otherwise allowed; “special districts” can be created that have their own rules, often straying far from the limits of traditional zoning into areas like landscape design or tenant protections.

Many cities have experimented with each of these approaches, sometimes all at once. Over the years, zoning has become quite complex, keeping an army of development lobbyists, technical experts, corporate consultants, and land-use lawyers employed. When New York City’s zoning code was created in 1916, it was 85 pages long. When it was revamped in 1961, the new resolution was 539 pages. Since then, another 3,436 pages of amendments have been added. In New York today, there are about 150 different zoning types in use around the city.

Under these circumstances, developers looking to build have two choices. First, they can design a structure that fits the existing zoning rules. This is called “as of right” development. There is essentially no public process required for this type of construction, and as a result tenants have very little input on or leverage over what gets built. If a developer wants to build a fifty-story luxury condominium in an area that allows that sort of thing, little short of direct action or lawsuits will stop it.

The other type of development, however, involves building outside the zoning code’s constraints. That would mean either designing something bigger than permitted or proposing something other than the allowed use — like a condo complex in an area zoned for manufacturing.

In order to do this, the developer has to seek a variance from the city. Lawyers and planning consultants are brought in to make the case that the city’s zoning code should be changed on one particular lot in order to accommodate whatever it is the developer wants to build. This gives people an opportunity to protest, however, and say that they do not want the project to go through. Plenty of times this works, and the developer has to revise or discard their plans. It can be an expensive and time-consuming process, and is therefore something for-profit developers generally seek to avoid. If they can get an entire neighborhood rezoned to their liking, however, they will be able to build whatever they want without having to bother with any sort of pesky public process.

Drawing out rezoning is an extremely complicated legal and political terrain. People spend years studying land-use planning and law to truly master its intricacies and quirks. It is also a terrible bore — not many people would voluntarily subject themselves to countless hours of debate over the merits of C6-2A zoning versus R8A. Yet the zoning code is one of the most important legal documents in a city for both activists and real estate investors because it sets the rules for new development.

It is, however, a highly imperfect vehicle for housing politics. What activists tend to care most about is the price of housing; what the zoning process is designed to adjudicate, however, is the size and use of buildings. The system thus encourages housing activists of all stripes to expend a great deal of energy arguing over housing densities as a proxy for housing costs.

In suburban contexts — including the outer stretches of most cities — the zoning code is often written to allow only large lots for single-family homes. This helps lock in high land values as the only things that can be built are big expensive houses. Smaller and more affordable homes are outlawed, as are apartment buildings or any other kind of low-cost multifamily dwelling. This practice is known as “exclusionary zoning” because it keeps out a wide swath of people who will never be able to afford homes of these sizes.

Combined with a regressive tax code that rewards large landholders and owners of multiple homes, exclusionary zoning perpetuates intergenerational wealth, racial inequality, and spatial segregation. It helps wealthy neighborhoods stay wealthy and offers them an ample tax base for extensive and exclusive public services — particularly schools.

In the United States, many of these zoning codes correspond with New Deal-era and postwar racist housing policies. The era of mass suburbanization was sparked by a series of initiatives meant to standardize the home loan industry, increase homeownership, depress worker militancy, and spur employment in construction and related industries. Some of the most important programs were led by Roosevelt’s Federal Housing Administration (FHA), which, among other things, insured mortgages for those who otherwise would not receive them. As part of this program, the FHA wrote guidelines for banks that dictated what type of residential communities they wanted financed. Following real estate industry “best practices,” the FHA preferred: new construction; space between properties; and, more than anything else, racial segregation. Neighborhoods with African Americans and recent immigrants were coded unsafe for investment and redlined (shaded red on maps to signal their planned decline). Meanwhile, white families were offered subsidized mortgages for housing in new suburban districts.

Undoing these laws was a crucial part of the mid-century Civil Rights Movement, and the Fair Housing Act of 1968 made many of these practices illegal. But while explicit rules to segregate housing by race were outlawed, exclusionary zoning has kept many of these places almost entirely white. Fights against exclusionary zoning, like the long legal battle in New York’s suburban Westchester County that has lasted since the 1980s, aim to integrate neighborhoods and mandate that new housing be affordable to more potential residents.

What Inclusionary Zoning Can’t Do

As campaigns against exclusionary zoning continue, many cities are turning toward what sounds like its opposite: “inclusionary zoning.” This program encourages private developers to build some amount of income-targeted apartments along with their luxury developments. The program varies from place to place: in some instances, developers must put their affordable apartments inside expensive new buildings; in others, the affordable units can be built elsewhere; in still other examples, developers must pay into a city-run affordable housing fund. Often cities use a combination of these strategies. New York City, for example, has allowed all three.

Proponents of inclusionary zoning argue that these schemes will undo years of racial and economic segregation and create new housing for those least served by the private market. Unless it is attached to other subsidies, it costs the city nothing and passes the burden of affordable housing production onto those who benefit most from gentrification — real estate developers.

Critics, meanwhile, tend to focus on the low number of cheap apartments these programs actually create. Most of the time, their affordable units are just a small fraction of new development. In New York City from 2005 to 2013, affordable apartments built through inclusionary zoning accounted for just 1.7 percent of new housing growth.

Detractors also question the term “affordable” and ask: “affordable to whom?” Buckingham Palace, after all, is affordable to the royals. Often the income targets for these inclusionary zones are higher than the neighborhood average, and far from the greatest need. Sometimes the affordable apartments actually turn out to be as expensive or more than market-rate apartments in a given neighborhood. New York City mayor Bill de Blasio’s new and improved inclusionary zoning scheme, for example, allows the “affordable” housing in some neighborhoods to go to people making 115 percent of the area median income — an “area” that includes not just the neighborhood, or the city, but the entire metropolitan area (including wealthy suburbs with exclusionary zoning).

These are legitimate criticisms, but there is a more fundamental issue. In most iterations, inclusionary zoning is triggered by an upzoning — or an increase in development capacity — in areas already at risk of gentrification. This creates a windfall profit for affected landowners, who are then allowed to build something big and glitzy with far more rent-producing units than whatever stands on their lots today. Even without doing a thing, they can sell the land for a great deal more than it was worth prior to the rezoning, thus speculating off the value the city has gifted them.

Supportive planners will argue that inclusionary zoning allows them to “recapture” some of this value, but that framework ignores the impact of such changes on the wider neighborhood. When luxury development is encouraged in low-income neighborhoods, the value of surrounding properties rises too, and along with it the rents. Long-term tenants as well as low-income migrants then suffer from either higher rent burdens — the percentage of incomes paid to rent — or displacement to another neighborhood, another city, or another region entirely.

Ultimately, inclusionary zoning is a real estate strategy, not a social program. It is part of a larger turn away from public housing or even public subsidy and toward market-based planning strategies. It neither decomodifies housing nor limits landlord power.

In response to these pressures, many tenants promote downzoning, or reducing development capacity in their area, as a strategy to ward off speculative developers. In the right settings, and when paired with other pro-tenant policies, this can work: it limits the amount new developers can build, and incentivizes landlords to preserve their existing structures because any new building they put up would have to be smaller than what is there today. But downzoning can also drive up property values, since buildings built to the old, higher zoning suddenly become highly prized possessions. Such buildings can then sell for more and command higher rents. Downzoning alone, then, cannot ensure long-term housing stability or affordability for working-class tenants.

Taming the Market

If, under these conditions, both upzoning and downzoning can spur rent hikes, what is to be done? Libertarians will contend that it would be in tenants’ best interest to eliminate zoning altogether. They claim that all zoning does is limit development, thereby constraining the supply of housing and raising its price. In a highly speculative market, however, simply increasing the housing supply doesn’t automatically reduce costs. From 2014 to 2017, new residential construction in New York City — to take one example — kept pace with population growth but was matched by an almost equal number of newly vacant investment properties: vertical safe-deposit boxes and money-laundering devices. Meanwhile, working-class tenants’ rent burdens continued to rise precipitously. “Unleashing the power of the market” is as vacuous an idea in housing as it is in any other realm.

If eliminating zoning is not the answer, neither is preserving existing conditions in perpetuity. The kinds of rezonings on offer are almost always those that raise property values and drive up rents, and therefore must be militantly contested. But that doesn’t mean our existing zoning codes, crafted largely to safeguard real estate capital and preserve generational wealth, are worthy of defense. We can’t fall into the trap of defending an untenable status quo solely because our opponents want to change it.

The answer to this crisis is not exclusionary zoning, inclusionary zoning, upzoning, downzoning, a zoning freeze, or no zoning at all. The problem is an overreliance on zoning — a tool ill-equipped to confront the private land and property markets — and the solution is a popular movement for anticapitalist urban planning and the decommodification of land and housing. A socialist system might use zoning as one tool among many to shape future construction, but it would not need to rely on zoning as a bank-shot mechanism to regulate the cost of housing.

Zoning itself is a rather weak means for low-cost housing production and retention, especially when compared to classic methods: public housing, particularly, but also rent control and community land trusts. We need plans in place to preserve housing for the poor and working class, and ensure that new construction meets our needs as we define them.

The Left can’t avoid zoning fights: zoning is too central to cities’ gentrification strategies and suburbs’ exclusion strategies to ignore. But we must remember that zoning is just the beginning — not the end — of our struggle. We need real planning, and we need to build popular power to control planning’s parameters.