How Democratic Is Zoning?

Land use regulation in our country’s high-cost regions is often governed by small suburbs and by small urban neighborhoods. When a significant rezoning is proposed, a municipality gives notice to neighbors of the land to be rezoned. The rezoning often benefits the city or region as a whole by adding new housing or jobs. 

However, the immediate neighbors of a project have no incentive to support new development—especially housing. This is so for two reasons. First, if they are homeowners, they benefit when new housing is not built because housing shortages mean that housing will be more expensive, and thus easier to sell for a profit. Second, even if the neighbors are renters and thus have an incentive to support new housing citywide, they may not have an incentive to support one or two new projects, because a smattering of new buildings are unlikely to affect citywide rents very much.

So when local government defers to so-called community input, rezoning will be rare and new housing will remain unbuilt. As I have written elsewhere, one obvious solution is for state governments to deregulate density—that is, to amend state zoning acts to allow landowners to build new housing without asking for rezoning. No state has gone this far, but some have carved out exceptions to local control, such as Oregon’s new "gentle density" law allowing duplexes, quadplexes, and other small-scale developments on lots zoned for single-family housing.

One common argument for the status quo is that neighborhood control of zoning is more democratic than state control of housing or deregulation. For example, socialist commentator Nathan Robinson writes "nobody deserves to have the future of their neighborhoods determined by developers rather than the democratic process." It seems to me that this claim is based on three assumptions: 1) control by government is more democratic, and thus more desirable, than control by individuals or corporations; 2) the zoning process is really, truly democratic; 3) if (2) is true, local control is even more democratic than state or national control. Each of these assumptions is either factually questionable or leads to absurd results.

The first assumption is essentially: collectivism good, private sector, bad. But if municipal control is more democratic than individual control, why should this idea be limited to new housing? For example, if government control is the most democratic policy, than it would be democratic for government to dictate the price at which each homeowner sells their house, but not so democratic to allow homeowners to decide to sell their houses at (often) inflated prices.

And for that matter, if municipal control is more desirable than private control, why limit this idea to housing? If there was no Constitution to limit local "democracy," cities could decide who gets to practice what religion within their borders, or zone neighborhoods for one religion or another.

The second assumption implies that the current zoning process is fairly close to some democratic ideal. If zoning was decided by referendum or was a major issue in local elections, this argument might be plausible. But often, public meetings are decisive—and these public meetings are often sparsely attended, and the people who attend them are not representative of the public as a whole. According to one study of zoning hearings in eastern Massachusetts, people who comment on zoning issues are whiter, older and more likely to be homeowners than the overall electorate. Sometimes, when the city council allows new housing, these commenters fight to delay or stop the housing through lawsuits. And since these lawsuits might involve just one or two plaintiffs, they are even less democratic than zoning meetings.

The third assumption implies that local governments are more democratic, and thus more desirable, than state or federal governments. But if this was true, why do we ever allow state and federal governments to limit local behavior? For example, federal laws prohibit local governments from engaging on racial or religious discrimination. But if local control is more democratic, why have federal civil rights laws?

You might respond: "This comparison is silly, because of course the public interest in racial equality outweighs the desires of local voters." But why isn’t this equally true of the public interest in allowing new housing?