Are Zoning Laws Truly Popular?

Contrary to talking points, zoning laws rose to prominence despite their unpopularity.

December 29, 2020
Nolan Gray, fee.org

In my regular discussions of U.S. zoning, I often hear adefense that goes something like this: “You may have concerns about zoning, but it sure is popular with the American people. After all, every state has approved of zoning and virtually every city in the country has implemented zoning.”

One of two implications might be drawn from this defense of Euclidean zoning: First, perhaps conventional zoning critics are missing some redeeming benefit that obviates its many costs. Second, like it or not, we live in a democratic country and zoning as it exists today is evidently the will of the people and thus deserves your respect.

The first possible interpretation is vague and unsatisfying. The second possible interpretation, however, is what I take to really be at the heart of this defense. After all, Americans love to make“love it or leave it” arguments when they’re in the temporary majority on a policy.

But is Euclidean zoning actually popular? The evidence for any kind of mass support for zoning in the early days is surprisingly weak. Despite the revolutionary impact that zoning would have on how cities operate, many cities quietly adopted zoning through administrative means. Occasionally city councils would design and adopt zoning regimes on their own, but often they would simply authorize the local executive to establish and staff a zoning commission.

Houston was among the only major U.S. city to put zoning to a public vote—a surefire way to gauge popularity, if it were there—and it was rejected in all five referendums. In the most recent referendum in 1995, low-income and minority residents votedoverwhelmingly against zoning. Houstonlacks zoning to this day.

If zoning was never popular, why did nearly every state and adopt it? Here it might help to clear up the actual origins of US zoning policy. Contrary to the popular view of zoning as a ground-up phenomenon, zoning was in fact developed, promoted, and heavily incentivized by the federal government.

Meanwhile, the major proponents of early zoning programs in cities likeNew York andChicago were business groups and elite philanthropists. Where votes were held, as in cities likeSt. Louis, support for zoning was often openly predicated on the idea that zoning would implement and preserve racial segregation.

Needless to say, the poor, immigrants, and African Americans were often prevented from voicing their opposition to zoning and other racial segregation programs at the ballot box.

Yet the puzzle remains: if zoning was never popular, why did nearly every state and adopt it? Here it might help to clear up the actual origins of US zoning policy. Contrary to the popular view of zoning as a ground-up phenomenon, zoning was in fact developed, promoted, and heavily incentivized by the federal government.

Zoning as it exists today was developed by the federal Department of Commerce under future president Herbert Hoover. In 1924 and 1928, the department published theStandard Zoning Enabling Act andStandard City Planning Enabling Act, respectively, and distributed copies of each to every state legislature in the country.

These acts aimed to accomplish three goals: First, to popularize the policies among legislators and provide a clear federal seal of approval. Second, to provide a model for zoning enabling legislation—legislation whereby the state allows municipalities to undertake certain police powers—and make it easy for state legislatures to quickly pass it. Finally, to secure court approval of zoning.

At the time, the constitutionality of zoning was very much in doubt. Many zoning advocates both feared that poorly drafted zoning would prompt the courts to declare the policy unconstitutional nationwide and hoped that the widespread adoption of zoning would leave the courts hesitant to overturn it.

Whether or not towns and cities needed or even wanted zoning, waves of grants and technical experts were forthcoming to nudge municipalities to draft zoning ordinances.

Their strategy clearly worked: before 1920, just over a third of states had adopted any kind of zoning enabling legislation. By 1930, nearly three quarters of states had adopted the legislation. In1926, a divided Supreme Court ruled in favor of zoning.

Over the next 90 years, the federal government would continue to promote and in many cases require zoning, particularly during the New Deal. In 1936, the USDA published rural zoning enabling legislation, designed to push zoning into small towns and rural hamlets. Whether or not towns and cities needed or even wanted zoning, waves of grants and technical experts were forthcoming to nudge municipalities to draft zoning ordinances.

Often, these zoning ordinances were shoddily crafted by non-locals to help municipalities meet federal mandates. After all, as the federal government played a larger role in financing state and local infrastructure projects, zoning came to be expected. Likewise, as the government entered into housing finance in 1934,low-density, racially segregated residential zoning became a necessary prerequisite to secure funding for residential projects or mortgages.

Today, the expectation that towns and cities have zoning continues to show up in applications for everything from infrastructure funding to emergency relief. Under such a regime, regardless of popular support, it would be downright weird if most towns and cities didn’t adopt zoning.

None of this is to say that there were never popular constituencies for zoning. A handful of states and cities had clearly adopted zoning by their own volition, as unsavory though theirmotives often were. But even if we were agree that the popularity of zoning in any way excuses the program—an argument which I am highly skeptical of, see postscript—the purported popularity of early zoning remains far from settled.

On the one hand, we have strikingly little evidence from democratic public referenda for the popularity of US zoning. On the other hand, we have a century of the federal government drafting, promoting, incentivizing and mandating zoning. Where mass movements in favor of zoning are missing, we find onlyxenophobic business groups andprogressive technocrats in favor.

All of this casts serious doubt over the idea that zoning is in the result of popular movements or enjoys mass support today. Meanwhile, Eucludean zoning’s incredible costs become clearer every day.

Postscript: Let’s take the defense that Euclidean zoning is popular on its own terms, contrary to the historical evidence. It’s not obvious that popularity qualifies as an overriding merit in all or even most cases. Sure, we live in a republic, where policy is meant to operate with the consent of the public. But we also live in a liberal republic, where all citizens enjoy certain basic rights regardless of the whims of majorities.

Until quite recently, nearly every city in the country enforced some form of school segregation. When unelected judges, after much hemming and hawing, finally cracked down on school segregation—against the wishes of majorities—they did the right thing.

A policy that violates basic rights, or arbitrarily expropriates property, or abuses vulnerable populations isn’t made right for being popular in this country. Even if zoning were popular, its tendency to do all of these things should make us deeply skeptical of the policy.

This article was reprinted with permission from Market Urbanism.

Nolan Gray
Nolan Gray

Nolan Gray is a city planner and contributor to Market Urbanism. His work has also appeared on Citylab, Forbes, and Planetizen. He earned a Master of City and Regional Planning degree from Rutgers University. Follow him on Twitter: @mnolangray.

This article was originally published on FEE.org. Read the original article.
Main Image: Wikimedia