YOU SAY GOODBYE AND I SAY HELLO. WILL LOCAL ZONING GIVE WAY TO A FEDERAL REPLACEMENT?

10/15/2021 | Articles & Alerts, News & Resources, Zoning & Development

                The economist, Milton Friedman, was a proponent of local government authority. He posited that if he was unsatisfied with his community, he could simply move to another community he found desirable. However, moving from a state or country is far more difficult. Local government power includes the adoption of zoning regulations. Pennsylvania has 2,561 municipalities, and most have their own zoning codes. Zoning can, at times, unfairly shape where people live and how they live.  The federal government has little influence on local zoning decisions, except for certain environmental regulations. 

                Local governments argue that zoning decisions are best made by those most affected – local residents.  Sometimes, however, pejorative zoning power is often vested in a few individuals with uniquely personal perceptions about what is best for the community. The result may be an institutional bias against affordable housing in favor of “exclusionary” single-family zoning. Exclusionary zoning can be created explicitly, as in the form of minimum lot size requirements, or implicitly by expensive fees and exactions that drive up construction costs and housing prices.  Critics argue that single-family zoning districts increase housing costs, create unwanted sprawl and perpetuate racial segregation.

                President Biden’s recently announced infrastructure plan proposes to remedy the shortage of affordable housing. Proponents argue that homeownership is too expensive to be affordable and that single-family zoning must be “killed off” so as to eliminate the resulting inherent racial and social inequities. Opponents argue the plan will create a much higher density, burdening schools, public safety, and the environment while driving up property taxes. 

                The Biden proposal is more of a carrot than a stick, offering grants to those jurisdictions that work to eliminate exclusionary zoning.  In other words, if a municipality agrees to weaken or eliminate single-family zoning, it gets federal money as a reward. However, the carrot will do little to change the minds of certain affluent communities, which get along fine without federal money. Therefore, some argue for the stick, i.e., withholding federal transportation grants for road repair from suburbs that refuse to kill off single-family zoning.  What has yet to be explored is the federal government’s ownership of nearly one-third of all property in the United States, which is generally exempt from local zoning. Might the federal government go into the development business in a big way?  Would the federal government use its power of eminent domain to acquire private property for the development of affordable housing? These and many other questions, for now, are unanswered.

                Creating a federalist system of zoning will be a tough sell in Congress. California recently tried to kill off single-family zoning unsuccessfully. There was powerful opposition from residents who objected to a law that would make their neighborhoods denser, noisier, and more filled with traffic. Predominantly minority residents in parts of Los Angeles worried that relaxing zoning rules would not only ruin the low density they enjoyed but might also unleash an investment flood that would accelerate gentrification.

                The Biden proposal zoning will pit libertarians and developers against those committed to preserving local control. There are plenty of complex, conflicting, and legitimate considerations in the balance, and you know what that means? Lots of litigation that may not be resolved for decades.

For further information, please feel free to contact Neil A. Stein, Esquire at (610)941-2469 or nsteain@kaplaw.com.