Code Cruft in Zoning

Over time, any bit of code (zoning included) generates ad-hoc fixes to resolve problems never envisioned when the code was first devised, and most of those fixes satisfied an immediate need for a metric. Few of these metrics have any initial basis outside of simplicity and sufficiency, and their descendent metrics enjoy few advantages beyond custom and extrapolation.

Legally speaking, the purpose of all zoning code is to regulate health, safety and welfare. Functionally, zoning code has another use, beyond which: it is about pre-emptively managing nuisance by separating incompatible uses. Things which are noisy, or smelly, anything that disturbs a 'right to quiet enjoyment' are nuisances*. 

Even if we make the good-faith assumption that the purpose of all zoning code is to regulate health, safety and welfare, times changes and the problem that zoning fixes were designed to resolve is no longer relevant (ie, coal delivery, livery stables). 

Zoning is law, law is the basis of court cases and precedents, changing the law undermines the precedents, no city wants the cost & hassle of a lawsuit. So it's most often simply not to change zoning except on an as-needed basis. We often thing of the major cities like NYC or LA, but most city corporations are not far removed from that: In America, there are 19,000 incorporated cities, and over 100k 'populated places' of towns, villages, and townships. Many are not far removed from HOAs and are governed on a volunteer basis on a shoe-string budget. Hence, the quality of the average zoning code is not very good, and it is very likely out of date, most importantly regarding residential code.

Most of zoned land is zoned residential. Most of residential zoned land is zoned for single family detached housing, at a time when the nuclear family was the normal household, and land, gas and cars where cheap. None of these things are true any longer, but our zoning codes still reflect that. 

Before Euclid and Modern Suburbia.

 

Is there a good descriptor of how pre-Euclid and pre-modern suburbia raw development, that led to our great cities, actually worked?

People build kind of whatever they wanted. In Manhattan, the Astor's (richest people in America) abandoned their mansion on the edge of town and moved away because of the encroach of working-class high-rises destroyed the neighborhood character. You had a legal right to build anything, and the only way your neighbor could do anything about it was by suing you for nuisance. And blocking someone's view or sunlight was not considered a nuisance.

But, I don't think Strong Towns is quite getting this quite correct when they broadly blame "regulations" and "financing" for how and why development is different today relative to some supposed historic "incremental" methodology.

Strong Towns is absolutely right in blaming regulations and financing for how and why development today is different. Euclid meant you could buy a house and know that no one was ever going to build a (smelly) glue factory next door. So, housing became a far safer investment. And that meant banks were willing to loan more money to more people. So, there was more demand for owner-occupied housing. SZEA and SCPEA made zoning more prevalent. But that wasn't enough. 

The GI bill made any returning veteran eligible for a subsidized mortgage. Prior to the GI Bill (Federally subsidized mortgages), a mortgage was 50% down and lasted 5 years. Afterwards, it was 5% down and lasted 30 years. By one estimate, half the adult male population had been in the military at that point. So huge numbers of people could afford to buy houses, setting off a massive surge in homebuilding, which made it into a real industry, and people started to apply the mass production methods used for war for housing production. (Levitt-town is famous for a reason). Streetcar suburbs had done something similar, but nothing like at the same scale--there hadn't been the finance to support the demand to support the scale to support the specialization.

Of course it is almost certainly some kind of change in "regulations" and/or how the government operates but I think this would be worth pinning down. If we want to go back to some supposed golden age we need to actually understand that golden age.

SZEA and SCPEA were enabling legislation - it made zoning less liable to legal challenge (Supremacy clause). And the GI bill provided the financing. But the government operations don't stop there. The whole paradigm of modern suburbia relies on government planned and funded freeways. How we did it was a bit tricky. Federal government can't legally own roads, so they passed legislation saying that any State with a DOT was eligible for a 90% construction subsidy for highways and also added a fuel tax. Lots of freeways were build, and combined with expanding auto-ownership, moving to a semi-rural suburban idyll with big yards and lots parking became available to many. (And for most boomers, that era is the Golden Age of their childhood). However, it came to a crashing end in 1973 with the Arab Oil Embargo, and the formation of OPEC. 

Canonically, when I think Chicago or New York, I think (maybe imagining) paper streets as far as the eye can read on maps read across miles of undeveloped land, or whatever the original townsite was. I know Jason Barr has some blog posts at building the skyline about the mapping and surveying of Manhattan, but it's light on the when, where and how of the actual infrastructure construction timing and its relation to the when, where, and how of the related building construction.

The Wikipedia Article on the 1811 Commissioners Plan is a good place to start. But It's critical to realize how minimal city infrastructure was until the Victorian era. The Croton aqueduct (1842) bringing fresh clean water to Manhattan was major civic achievement.  You don't have paved roads, water mains, piped gas, or even sewers for quite a long time. A road was where it was illegal to build, and it was dirt or mud with a ditch in the middle for stormwater for when it rained. Water came from the well in the back yard, probably with a latrine nearby, which probably emptied into the local creek. London itself doesn't get sewers until 1865. 

The building construction (multiple stories, half lot coverage) ran long before any kind of public infrastructure. Much the same in smaller towns. The house my dad grew up in dumped its sewerage directly into a local creek, via a cast iron pipe from the toilet, and had an old on-site well. You tended to see public infrastructure investment when property-specific system collapsed. Culinary water typically at the forefront - once the local watershed is polluted, there is no way to fix it. Sewers are an easy sell to voters - less smell. For paving, roads were paved using a system that looks very much like a Public Improvement District, levying a tax on houses fronting onto them. We owe a certain amount of paving to streetcar companies, for whom the franchise agreement allowing them to build a railway in the public right of way required them to pave it as part of the deal, and since they were already doing a lot of grading, earthwork, and water management to their own project, it wasn't a big deal. 

Highway paving was erratic and ad-hoc. The AAA maps don't refer to thinks as 'auto trails' without reason, and a journey from LA to Long Beach was an all-day excursion and mostly off-road. There was nominally a national highway system from 1926, but without attached funding it was a bit conceptual, and mostly a matter of signage, connecting bits of roads. 

Suburbia relies on highways. Suburban development relies on being able to link local suburban roads to the broader public network. Without public highways, travel to a new subdivision would be along a rutted rural dirt road, and thereby much less comfortable and far slower. Which meant such a location was less attractive, and so less rentable, and so not worth developing.

But really it was the scale of suburban development that mattered--building a subdivision meant an efficiency of scale that supported the develop of local infrastructure networks. By splitting the cost of a water main and sewer main over 30 houses with a sort of minimum spanning tree, you could afford to connect everyone to a local creek or sewer main. 

But part of what makes suburbia work is that it is a process - it's not just the one suburb, but the assumption that future suburbs will emerge. And that makes it worthwhile to make public infrastructure improvements in things like substations and public schools that would not otherwise be reasonable for a single suburb. 

We used to build plenty and it might be related to how we built differently. How, exactly?

Well, no. For a brief period, we built plenty. But that period was pretty brief, only a few decades. It seems like it went on for a long time because we repeated the same cycle in new places (The interstate didn't reach everywhere at once, and viability of continued interstate widening has varied based on terrain, climate, and public opposition).

It's really critical to understand what Strong Towns is about, and the name should be a clue--they are about towns. A town is a place where, after the initial settlement boom, the increase in local population is largely dependent on local natural increase. Which tends to be gradual, and so new housing development tended to be incremental. A space previously used for an orchard or garden or poultry yard would become a new house.

The style of structure built was also different. Financing was limited (five years with 50 percent down) so everyone tended to build a small house and add to it over time, adding and enclosing porches to all sides. "Barnacling" as Strong Towns calls it.

Prior to mortgages, a starter home in the twenties might consist of a of a bedroom, kitchen, bathroom and living room (where the children would sleep). A larger house might have a front parlor, dining room, kitchen, dining room, and two bedrooms. Laundry was done out of doors, porches were the 'mud rooms', and play took place wherever. The panoply of rooms that characterizes our houses today didn't exist.

After the GI bill, rather than incremental additions, you could afford to be like a rich person and build it all at once. And if a garage was attached and integrated into the house, that counted as part of the house, and that could be financed as well.

Prior to the GI Bill, households were also different. You lived with family until you got married, and once you had your own house, you had lodgers--siblings and cousins and extended family who provided domestic labor. And if you had any kind of money, you had live-in servants for whom you provided bed and board. A household was not a matter of relation--it was an economic unit. (You can still see this in early zoning codes, which forbid unrelated persons living together, excepting domestic servants). You took in boarders or lodgers inverse to your number of kids, and your youngest kid probably never moved out and stayed to care for you in your dotage. Or, if your daughter got married, you might move in with her to her new house.

South-of-Emigration-Creek-City?

Looking at the Salt Lake City Zoning Map [1], I idly wonder if Salt Lake wouldn't be a better off if it just transferred (de-annexed) everything south of Emigration Creek and East of 1700 E.  It's the part of the city characterized by houses zoned for 7000 SF and even 12,000 SF lots. It certainly complicates city politics. 

I suspect it's a non-starter for financial reasons--what city would want to lose the taxable revenue from the affluent suburbs its annexed? But I also suspect were Urban3 to do an analysis of SLC, it would show that most of the actual money comes from the urban core. (Lots of expensive property doesn't always generate a lot of revenue due to things like homestead exemptions). Which represents a substantial shift - for a long time, land values (and land uses) have so low that controlling affluent areas seemed like a win. But as suburbia ages, and the infrastructure renewals costs roll in, I suspect that may less the case. I doubt 'South-of-Emigration-City' would be financially sustainable on its own - not enough commercial development, not enough density. Perhaps it could join up with the City of Millcreek? 

I suppose it you were an arch-capitalist, you'd cut Salt Lake City down to the revenue generating parts, and de-annex the rest, and create something like the City of London. Not very politically viable though - the Utah Legislature would just bully it like they did with the Inland Port Overlay District, but worse. So perhaps that explains why two very different polities exist in one city--mutual defense. 

[1] I often genuinely forget that Salt Lake City extends south of I-80. It's a part of the city I never think about and almost never visit. Likewise, the part of South Salt Lake that extends north of I-80 always seems faintly absurd. Partially it's because SLC was so rigorous in annexing everything north of the 201 to the west. 

The limits of reciprocal restriction

The whole basis of the legal argument FOR zoning is that while a property owner has been restricted from developing their own property, that very real loss is none the less compensated by others losing the same property rights--that zoning is a sort of 'reciprocal covenant' that the homeowner bough into by buying that property.  (Houston is useful, because rather than having zoning, they have a plenitude of explicit private covenants governing land use). 

Monster houses are an interesting case, as they certainly impose costs on their neighbors (loss of light, view, etc), but those costs aren't recognized as property rights (even if they do affect your property value). Which begs the questions: why aren't duplexes of similar size permitted? And the immediate response is one of parking. Not of the amount, per se, but of it's regulation. Existing owners want to mandate sufficient parking that there is no possibility that renters will compete with them for on-street parking. And so they demand absurd levels of parking (One stall per bedroom).  

Because one of the tacit covenants of suburbia concerns the use of the local 'commons', the public street. You are permitted to store vehicles on it, but not so many vehicles that it impairs others use. Informally, it gets regulated as "Don't park in front of my house". But the whole things runs on social sanction (as I've discussed elsewhere) and renters (demographically different from owners) simply can't be sanctioned effectively. And as a a landlord, if you write me about my tenants use of 'your parking', in front of 'your house', my recourse to an impolite letter is to simply ignore it--I can't be socially sanctioned either.  So when owners fight against rentals, they aren't irrational--they are fighting the collapse of their way of life, and the beach head of an invasion. Because once that dam breaks, opposition to additional rentals degrades. People learn rentals aren't so bad, renters don't care in the first place, and the truly implacable will move away. 

Why zoning

While we're still stuck with zoning (and it's associated problems), its good to understanding where zoning comes from: the peculiar conditions of post-war America. The way is done, it's 1945, it's a war economy, with a combination of price controls, wage caps, rationing and subsidies in place. The wage labor market is tight (despite having drawn huge numbers of previously non-wage female workers into formal employment).

But at the same time, there is a huge amount of the labor pool is still across the ocean as an occupying force that is about to come home, and a complete horror of unemployment that is going to result when all those guys come home.

There has only been a tiny amount of new construction in almost a generation--1930-1945. The whole built environment is run-down and functionally obsolete. While not everywhere is a slum, everywhere is run-down. And there are plenty of actual 'Hoover-ville' shanty towns.

So there is a clear need to build a massive amount of housing. The Federal government has been playing  footsie with social housing (Greenbelt, etc), following the lead of what major cities were doing pre-war, and what it had to do for the dependents of the enlisted population during the war.

It's the form of American post-war housing that's notable--America went hard for detached single family housing. And as near as I can tell, it's purely due to the "No man who owns his own home can be a communist". That aside, why the strict segregation of uses? Lots of places have zoning without it (Japan most notably). 

The legality of zoning was in question for a long time. Euclid vs. Ambler is the court case that establishes the legality of zoning, says it's ok to segregate uses.

Anyway, intent of zoning is 'hygienest'. An urge to separate like from unlike. Because all the existing development seemed unclean--too much overcrowding. 

But the functionally obsolete matters. There had been a lot of technological change from 1928-45, no small amount of it driven by the needs of the war itself. Stoves and furnaces are the things that come to my mind, but bathrooms (indoor plumbing with a porcelain throne) also a shift for a lot of America. (Surreal, but many tenement buildings had only a single bathroom per floor).  'Cold water flats', with no water heaters in the building (let alone the units) also a thing. 

Urban Ideology in America

Post-zoning, urbanism goes to hell, and there is rhetoric about the 'extinction of walking', and the assumption that everyone will drive everywhere, and walk no further than across a parking lot, and that there will be parking skyscrapers as-needed. And that ideology prevails until the 1970's, when the 'Urban Transportation Problem' gets published/realized--it's impossible to 'build your way out of congestion'. Also a general realization that the 'share automobile' of buses for non-car owners isn't financially viable (on a per-mile basis) in suburbia. So you get a decade of 'cars plus commuter transit' (BART, WMATA, MARTA) when it's realized that those cost too much to build out the planned network, and it takes until New Urbanism until we have an alternate ideology. While we're waiting for CNU to rediscover walkable urbanism, we're stuck with crank Modernist city planning, the rational comprehensive model, Brutalism, traffic-based transportation investments, and similar bunk.

How I'd do zoning: Nuisance

As time goes by, I like the idea of zoning less and less. It's a useful tool for planners, but it's really only useful for generating suburban sprawl. Rather, it's useful for real-estate speculation, as it ensure that the context around the new development is less likely to suddenly change: No pork rendering facility will suddenly occur next to the planned ranchettes. (This is largely a problem of suburbia, because only in the context of highway-enabled sprawl do land values change suddenly and systematically). 

So: How I propose to do zoning: Nuisance-based. Say, for example, there are three dimensions of nuisance: noise, shade and traffic. A 'noise' zone gets labeled by the maximum (peak) noise that can be generated at property edge: Airports would be in a 150 decibel zone, industrial in a 120 decibel zone, and cottage residential a 60 decibel zone. Some of the zones would be established by roadway proximity: An arterial highway generates 80 decibels.  Seems too difficult to map? Someone already did.

Shadow-zoning is also simply to explain: Nothing built on a lot can cast shadow on an adjacent lot. (Shadow on public ROW is ok). For urban locations, the rule could be 'no shadow on the lot behind you'. 

'Traffic' means traffic generation: How much traffic your expect to generate. That's easy to measure: Count the parking stalls. Uses with similar numbers of parking stalls are compatible. If the house next door can park two cars on the lot, a commercial building with two parking stalls is also acceptable. A 7-11 with four stalls in the parking lot would be a legal use, while a CVS with 20 would not be. Size of lot would be irrelevant--this is not a 'per 1000 SF' measure.  (Elsewise, Target would just buy up a big lot and generate huge amounts of traffic). 

Form-based zoning beats the pants off Euclidian (use-based) zoning, but it's mostly useful for infilling single-family neighborhoods. Mixed-use areas are going to need something better. 

 

Affordable Housing Modifications bill

via: Planetizen

Utah State Senator Jake Anderegg, R-Lehi proposed SB 34, an "Affordable Housing Modifications" bill for consideration by the State Legislature this year.

In addition to increasing funding for the state's largest affordable housing loan fund, SB 34 would allow mother-in-law apartments and encourage construction of high-density housing near transit in the hopes of promoting housing affordability (for more details on the proposed legislation, see news coverage by Tony Semerad from December 2018).

As noted by an article by Nolan Gray and Brandon Fuller, SB 34 would force local governments to plan for the state's worsening housing crisis. But unlike proposed laws in California and Oregon, SB 34 leaves much of the legal control of land use regulations in the hands of local governments. It will still be up to cities how they go about achieving their plans for growth.

"Municipalities facing a housing crunch would have to adopt at least three policies from a menu of popular housing reforms—policies that run the gamut from bread-and-butter housing policy to radical reforms. More conservative options, like starting a community land trust or purchasing and preserving existing affordable units, are still on the table. So, too, are permitting accessory dwelling units and lowering parking requirements," according to Gray and Fuller.

Sometimes, municipal boundaries are a joke

This is Lehi, Utah. It is a municipality, in Utah County. See all those little black holes in it? Those are county islands: Individual parcels of county land that aren't part of the city.

What a joke. None of them are rural, none of them will ever incorporate as their own cities: They are holdout landowners who didn't want to incorporate.

And then there are the 'cherry stems', with land on the edge of the city that is connected by a tiny corridor ('the cherry stem') to the city proper.

It's an administrative mess. To plan for a few islands in the middle, Lehi has to consult with someone elected to help govern county that is still substantially rural. For an island that shouldn't even fall under county jurisdiction.

There ought to be a law: If your parcel is completely enclosed (surrounded) by an incorporated municipality, it's annexation should be automatic.

Gentle Density, via Planetizen

From Planetizen:

Navigating the density debate might be easier if more cities embraced "gentle density," which Brent Toderian defines as "attached, ground-oriented housing that's more dense than a detached house, but with a similar scale and character. Think duplexes, semi-detached homes, rowhouses, or even stacked townhouses."

While even this mild form of densification draws opposition, it's less drastic than big blocky mid-rises. "Many people don't mind sharing a common wall and are eager to cut their costs and carbon footprint, but still appreciate a direct relationship with the ground. That's why fellow urbanist Daniel Parolek in San Francisco calls this kind of density the 'missing middle.'"

Rowhouses, townhouses and the like used to be an urban staple. But now, planners in many cities will have to relearn them. "In most cities though, deliberate zoning decisions have made this kind of housing illegal."

Full Story:

Canadian cities need more 'gentle density' to address housing crunch

Published on Tuesday, March 7, 2017 in Metro Toronto

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Note the parking: One garage slot, one driveway slot. But no on-street parking. Perhaps because the frontage is too narrow to permit a parking slot and a driveway?