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.

"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.