A Libertarian Smart Growth Agenda

Can't we all just get along? Law professor Michael Lewyn argues that despite their heated debates, both smart growth advocates and libertarians can agree that important elements of American zoning law lead to sprawling, car-dominated cities and suburbs, while limiting development choices and property rights.

 Michael Lewyn

"Smart Growth" is often a dirty word among supporters of smaller government. For example, the Heritage Foundation's Edwin Feulner titled a recent article: "Protecting Your Property From Stupid 'Smart Growth' Socialists."

But if "smart growth" means support for more walkable, less vehicle-dependent communities, smart growth supporters and the property rights movement share a common cause on many issues relating to land use and transportation.

In particular, both movements have excellent reason to oppose numerous elements of American zoning law.

For example, both sprawl critics and libertarians should oppose government regulations that create a separate zone for every human activity: apartments only in zone A, shops only in zone B, offices only in zone C. Under this system of "single-use zoning", many Americans cannot live within walking distance of shops or offices.

Single-use zoning limits a landowner's right to choose how his or her land is developed, and requires landowners to get government permission every time they wish to shift their land from one use to another. Thus, single-use zoning both spreads sprawl and restricts property rights.

Given the widespread view that single-family homes are incompatible with other land uses, a complete elimination of zoning may not be politically practical or even desirable. But both landowners and pedestrians would have more freedom if landowners were allowed to mix rental housing, commerce and retail "by right" (i.e. without having to ask government for a rezoning).

Conventional zoning also requires homes and apartments to gobble up large amounts of land. These "minimum lot size" requirements effectively choke off the supply not just of walkable neighborhoods, but of all housing, because if each residence consumes large amounts of land, fewer residences can be placed within walking distance of shops, jobs, transit stops, or anything else. A smart zoning policy would deregulate density and thus give Americans more choices for places to live.

Property rights advocates should also support deregulating density, because density restrictions limit a landowner's right to use and profit from land as he/she sees fit.

Of course, the most thoughtful libertarians are already aware of the harm done by single-use restrictions and anti-density zoning. But even more obscure government regulations such as parking and street design rules also restrict the options of both home seekers and property owners.

Municipal governments often require owners of apartments and commercial buildings to provide renters, employees, and visitors with huge amounts of parking. For example, the city of Houston requires apartment buildings to require 1.25 parking spaces for each studio apartment -- even though 17 percent of Houston’s rental households do not own a single car!

The impact of minimum parking requirements upon property rights is obvious: if a landowner must devote X feet of land to parking, that landowner cannot use those X feet of land for more profitable purposes such as apartments or offices. So supporters of limited government have an excellent motive to support parking deregulation.

The quality of life implications of parking regulations are less obvious. However, minimum parking requirements actually make cities more car-dependent by:

  • reducing the amount of housing that can be built on a given parcel of land, thus reducing the number of people who can walk to nearby destinations.
  • encouraging landowners to place parking lots in front of the street, thus creating a "strip mall" effect. This means that to reach shops, offices, and apartments, pedestrians must walk through and past visually unappealing parking lots. And when pedestrians are surrounded by seas of parking, they have less to look at and feel more isolated.
  • forcing landowners to create an artificial glut of parking, thus bringing the price of parking down to zero. Government-mandated free parking encourages people to drive, thus increasing the very traffic congestion that parking requirements were designed to prevent.

Street design regulations may also seem noncontroversial at first glance -- and yet reduce both walkability and property rights. Over the years, American cities have tended to require bigger and wider streets on longer blocks. Wider streets are unpleasant and perhaps even dangerous for pedestrians, because they increase the amount of time a pedestrian must spend walking through fast traffic. Moreover, every foot of land used for streets is a foot that cannot be used for housing or commerce. Thus, wide streets also reduce density and thus reduce walkability as well.

Property rights advocates also have good reason to favor skinnier streets, because every foot a city takes to build a new street is a foot taken from property owners. Even if just compensation is paid, a property owner has still lost land to government that he or she would not have lost if a narrower street had been built. How skinny can streets be? The SmartCode (a walkability-oriented model zoning code) proposes streets with as few as 10 feet of pavement in residential areas and as few as 16 feet in mixed-use areas; by contrast, modern residential streets are often over 30 feet wide, and arterial streets are sometimes over 70 feet wide.

Government spending also causes problems for libertarians and smart growthers alike. Every year, government at all levels spends over $100 billion on highways -- highways that, by facilitating development on the suburban fringe, shifts development away from older, often more walkable, communities. Every dollar spent on new and wider highways is a dollar taken from taxpayers, and every inch of right-of-way that Big Brother takes is an inch taken from landowners. So advocates of limited government have excellent reasons to favor limited highway spending.

In sum, there is good reason why property rights advocates should oppose the anti-pedestrian zoning, minimum parking requirements, and wider streets and highways that smart growth advocates already deplore. In these situations, increased government regulation on land use, which libertarians rally against, also leads to less environmentally and pedestrian friendly community design. Admittedly, sprawl critics and libertarians may have to agree to disagree about whether government should do anything to restrict new development in outer suburbs, and about the extent to which government should support public transit.

But anti-pedestrian zoning is far more common than anti-sprawl zoning: A 2001 Urban Land Institute study revealed that 85.4% of developers agree that the supply of alternatives to conventional, low-density, automobile-oriented, suburban development was inadequate to meet market demand, and 78.2% of developers identified government regulation as a significant barrier to such development. What do these statistics mean? That more often than not, the same land use policies that can increase Americans' land use, housing, and transportation choices will also expand their property rights.

Michael Lewyn is a visiting associate professor at George Washington University. In the fall of 2006, he will begin a long-term position at Florida Coastal School of Law.




"[P]ublic transportation reduces air pollution. For example, buses emit only 1.54 grams of nitrogen oxide per passenger-mile (as opposed to 2.06 for single-person autos), 3.05 grams of carbon monoxide per passenger-mile (as opposed to 15.06 for single-person autos) and 0.2 grams of hydrocarbons per passenger-mile (as opposed to 2.09 for single-person autos)." - Michael Lewyn PUBLISHED IN THE COLUMBIA JOURNAL OF ENVIRONMENTAL LAW, VOL. 26, ISSUE 259, 2001.

Bad assumptions yield bad conclusions. In the above we see a case of comparing a theoretical best case to the mathematical worst case and still only barely edging out the competition. No mention of time or particulates for but two instances.

It is indeed the case that US zoning policies have yielded, in part, the current urban development patterns that vex so many. What remains to be demonstrated is that those zoning policies were causes and not effects.

A libertarian agenda

Speaking for myself, I would be glad to join with smart-growth advocates to rid cities of zoning and planning rules that encourage sprawl. But it must be comprehensive: we won't support the replacement of low-density zoning with high-density zoning. Instead, replace zoning with homeowner associations using protective covenants to manage their neighborhoods as described by Robert Nelson in Private Neighborhoods, pages 265-267.

Similarly, we can get rid of minimum parking requirements, but we won't support the imposition of parking maxima or requirements that parking be in back so that stores can front on the sidewalk. If certain retailers want to front on the sidewalk, no problem, but let the retailers decide, not the planners.

Let developers design streets, yards, homes, retail shops, and commercial areas to meet the market. Let New Urbanists and others with new ideas try to persuade developers to try their plans. Let the roll of government be confined to setting user fees and tax rates to make sure that people don't shift the cost of their activities onto someone else.

Will the result be more sprawl or less? I don't know and I don't really care. What I care about is that people get to choose what they want and that they be responsible to pay the full costs of their choices. If Dr. Lewyn can support these ideas, I will be glad to join hands with him in promoting them.

Randal O'Toole
American Dream Coalition
[email protected]

Private Government

Perhaps the many communities that actually require new subdivisions to create homeowners' associations should ditch that requirement, too? With the residential-building market apparently dominated by large-subdivision activity, I wonder whether the non-HOA house is being phased out. It seems prospective homebuyers have decreasing choice in whether or not to live in places where neighbors have the legal privilege to clamp down on others' innocuous activities like backyard laundry air-drying or cars parked in front driveways. What's the point in implementing private regulations if they're more freedom-restricting than the public regulations they replace, as well as being unaccountable to the Constitution? What's so libertarian about that?

I Support Randal O'Toole

Randal O'Toole writes: "we can get rid of minimum parking requirements, but we won't support the imposition of parking maxima."

I agree completely. More parking means more automobile use, which means more congestion, more global warming, and future shortages of resources. That is no reason for the government to ban it.

It is not the purpose of government to restrict activity that promotes private self-interest but is contrary to the common good.

For the same reason, I oppose laws that stop me from dumping toxic wastes in the river.

Let freedom ring!! And remember that "freedom" means I can do whatever I want, no matter who gets hurt. Freedom does not mean that people can use the law to govern themselves and decide what sort of community they want to live in.

Charles Siegel

Where's your ownership in your idea? Nowhere. What good is it?

Randal wrote:

Will the result be more sprawl or less? I don't know and I don't really care.

Well, then! Good enough for me - we don't know whether a plan will work, and we don't care if it does or not!


I don't like your I-have-no-ownership idea - if you can't say whether this will work, or you don't care about curbing sprawl with this plan, why enact it? What good is your idea if you have no ownership in it? Why bother imposing your views on the rest of us?

Are the masses agitatin' to change to what you say? No (hint: only ~ 5% are)? Then fuhgeddaboutdit.



Posibilites for getting along

While I don’t consider myself a Libertarian, in reading Lewyn’s article, I anticipated the responses that Mr. O’Toole lays out here. And I find his points to be quite reasonable and well phrased. He clearly points out how Mr. Lewyn’s article overlooks the basic tenant of the Libertarian position that these issues should be completely deregulated, not regulated in reverse of existing ordinance.

The parking issue is a good example. Eliminating minimum parking requirements suits both camps. However, from a smart-growth perspective parking should be minimized while Libertarians would see no advantage in replacing a minimum requirement with a maximum. By ignoring this obvious distinction, Lewyn’s article reads as patronizing instead of pacifying.

Furthermore, I don’t believe that O’Toole’s self-stated lack of concern was referring to an eminent environmental holocaust, but simply to the urban form that would result from his requests. Clearly he does not agree with the proposal that low-density development patterns and private vehicle use are necessarily evil. Whether he is right or wrong is an issue outside the parameters of this discussion.

Mr. Lewyn has suggested that there may be potential for collusion between the two camps. More interesting than yet another reiteration of the complaints one side has on the other’s views, would be a further discussion on possible points of agreement.

Continuing with the parking example, O’Toole states that he would agree with eliminating parking minimums if other parking requirements are not imposed as a replacement. If the smart-growth perspective is that required parking is in excess of the demand, then could the smart-growth camp agree that there is no need for parking maximums?

I do not mean to over-simplify this issue. Planners address a far broader resistance to every decision than the narrow agenda of Libertarians. Such a change in parking policy would surely generate outcry from small businesses over fear of not enough parking and residents concerned about losing parking in the neighborhoods and ruining the integrity of downtown as a result of excess parking. Libertarians are hardly the most vocal group in local decisions that I’ve been a part of.

All the same, I am interested to know:
1) Would planners go for complete deregulation of parking requirements (for simplicity’s sake let’s say quantity-wise only)? And, if not, does this mean that they do not believe that parking is over-supplied as a result of parking maximums?
2) What other areas might there be overlap that could guide planning principals? I still think that the basic tenant of the Lewyn’s article is correct. These too sides argue far more than is necessary, let alone productive.

Full disclosure: I’m a recent graduate from an MUP program and my professional project entailed developing a Parking Cash-Out system to reduce downtown parking demand.

Michael Lewyn's picture


Point taken - obviously, I should have added another line to my small list of issues where libertarians and smart growth types may have to agree to disagree: whether government should affirmatively mandate smart growth-oriented rules in urban areas (such as maximum parking requirements). I suspect that the issue doesn't come up all that often, which is probably why I didn't think about it- but on the other hand, it may come up more often over the next few years.

Can we vs. Should we...

The difference is distilled in your comment; "...whether government should affirmatively mandate..." A Libertarian would first ask; "is this a case where government can involve itself..." and only then "should government involve itself..."

Is there a legitimate reason to get involved in development patterns? Heck yes and even the most extreme libertarian would agree. On the issue of parking we enter that most common of situations; the gray area. There is no legitimate reason to cap parking. Who, other than the owner of the property is harmed? What about minimum parking? There we have a case where inadequate parking generates negative externalities such as on street parking demand and cruising to find a space contributing to congestion and pollution and even public saftey concerns.

Too Much Parking Generates Negative Externalities

It seems obvious to me that too much parking generates negative externalities.

For example, there is a parking maximum for office buildings in downtown San Francisco. If this maximum had not been in place for the last few decades, there would be so many commuters driving there that traffic would grind to a halt because of congestion.

The same is true in general: more parking generates more automobile use, which generates externalities such as traffic congestion, air pollution, and global warming. It is certainly not true that only the owner is harmed by providing too much parking.

By contrast, it is possible to cap parking without creating externaties if you also use Permit Parking to control on-street parking. A project with a parking cap and permit parking obviously will create much fewer externalities than the same project without a parking cap.

Charles Siegel

"Too" Much Parking

Too much parking by definition is too much. Where's the issue? Oh, I see further down where the silly claim of too much is replaced with merely "more parking." This is where we finally get to the implied issue; induced demand. Spoons do not cause obesity and more to the point; larger clotes do not cause our children to grow. Parking is an accomodation not an inducement. Adequate parking reduces both congestion and pollution. It is not possible to "cap" parking without externalities unless we are willing to obviate every promise of freedom and choice implicit and explicit inthe last few centuries of democracy. I'm alarmed by the assertions to the contrary.

Re: Too Much Parking

Next time I see a parking lot, I will remember that this is what Jefferson meant by freedom of speech, freedom of the press, and freedom of religion.

This is a degraded, consumerist vision of freedom -- freedom means the right to act on your impulse no matter who you hurt. Jefferson understood that, if a nation adopts this vision of freedom, that nation is in decline.

Can you seriously say that San Francisco should drop its limits on downtown parking and "accommodate" everyone who wants to park there -- even though congestion would be so bad that traffic would grind to a halt?

Or can you seriously claim that, since buying children larger clothes does not make them grow, it follows logically that adding more parking in downtown San Francisco would not attract more cars?

Charles Siegel

Re: Too "too" much too muching.

It is not possible to "cap" parking without externalities unless we are willing to obviate every promise of freedom and choice implicit and explicit inthe last few centuries of democracy. I'm alarmed by the assertions to the contrary.

Externalities! I like it!

Let's discuss externalities.

Like PMx, O3, NOx, SOx etc. from the cars in the parking lots. And taxes to pay for parking and not the market building...uh...buildings on the site.

And another externality is the lack of choice people have to be free of cars downtown. What about those people?




"PMx, O3, NOx, SOx etc. from the cars in the parking lots."

Cool, now we have the evil icky cars in parking lots exuding PMx, O3, NOx, SOx. No, that is the point. Parked cars do not pollute.


Cool, now we have the evil icky cars in parking lots exuding PMx, O3, NOx, SOx. No, that is the point. Parked cars do not pollute.

Ah. Yes, the cars appear spontaneously. They don't drive there or anything.

This says it all about this type of argumentation.



Spontaneous Generation

Inadequate parking causes congestion and extra driving and makes it harder to efficiently chain trips. Parked cars do not pollute. Cars looking for a parking space, caught in traffic as others look for spaces, taking extra trips at extended hours... now those pollute. Not liking the answers does not refute the answers anymore than is a link to abusive cartoon a polite reply.

Implicit vs explicit

The reply presumes trip chaining is possible or desirable in a CBD, or that in a dense CBD driving to chain trips is necessary or desirable, or that lack of supply doesn't support alternative modes of transportation, or that only a single mode of transportation - SOV - exists in a CBD (necessitating only driving [e.g. if you're driving at lunch to to errands, will you get your spot back or pay extra? Likely both problematic]).

All of these possibilities exist and highlight the weakness in a single-minded reliance on only one mode of transportation. Nor, I suspect, does such argumentation consider whether the amenities in a CBD at extended hours are preferable to residential neighborhood amenities.

And I appreciate the need to characterize a background cartoon in a certain way to push a message (a message that includes, BTW, foreground words like 'icky' and 'evil'). This is a transportation discussion, not dinnertime with toddlers.



Flawed Presumptions.

This is the first time the CBD has been singled out for special attention. Even within the CBD, which admittedly has special advantages and limitations, the benefits of reducing congestion and unecessary trips and adequate infrastructure for the dominate mode of transportation should be obvious. No one has advocated single mode transportation solutions. What is being argued is that by ignoring all the usual demand and preference and trend data for the POV/roads based mode that we acheive suboptimal performance.

You say; "Too Much Parking Generates Negative Externalities." Certainly possible. Even discounting the judgemental "too much" or the equally judgemental "adequate" it still becomes a burden of proof issue. The externalities of too much parking are nearly all of the esthetic or unknowable variety; wastelands of pedestrian unfriendly, induced demand, etc. The externalities of inadequate parking are of an enumerable and definable nature; increased congestion, increased pollution, etc.

Michael Lewyn's picture

what's really quantifiable here?

So can Mr. Cote quantify exactly:

1. How much congestion is caused by "too little" CBD parking?

2. How much pollution is caused by "too little" CBD parking?

or, conversely

3. How much congestion is caused by the extra driving induced by government-mandated parking lots?

4. How much pollution is caused by the extra driving induced by government-mandated parking lots?

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