Zoning as civil rights battleground

Americans are probably more obsessed with decorative mulch than any other civilization has ever been. Every spring, America’s big box stores pile up plastic bags of colored wood chips in their parking lots so that suburban homeowners can try to sculpt the perfect lawn. A perfect lawn, a perfect house, a perfect neighborhood — is it really too much to ask?

When it comes to shaping a community, the tool that Americans use is even less exciting than mulch: it is zoning. Zoning is a topic so boring that it is inherently funny, as The Onion has proven time and time again.

And yet, the ability to decide, as a community, what can be built and where it can be built, is clearly very important. If you own a house on the edge of a residential zone, you care what the next “zone” over is. Living next to an industrial zone might mean that your new neighbor will be an odor-spewing factory. Living next to a farm that gets re-zoned as housing can mean that you now have 2,000 new neighbors, all coming and going with mulch-laden minivans.

Where zoning is really used as a hammer is in determining, albeit indirectly, how much it costs to live in a place. A community cannot really control the cost of a house — if the seller wants to sell it for a dollar, the seller can do that. But a community can say: you cannot build a home on a piece of land smaller than an acre, or you can build an apartment building, but there can’t be any one-bedroom or studio apartments. Build enough conditions into the zoning of living space, and you can basically wink and nod your way into an exclusive enclave that keeps out “a certain kind” of person. Poor people.

Simple economics would say that if there is likely to be plenty of demand for affordable housing in a nice community, the supply of affordable housing will materialize. But there are plenty of reasons for the members of an affluent community to use the power of zoning to ensure that, on average, the community remains affluent.

This kind of exclusionary zoning has been fought over for decades. But it has never been a major national political issue. In the waning months of his campaign, Trump attempted to turn the question into a scare tactic: elect Biden and he will strip your community of its ability to control what gets built where. The fact that this failed to resonate with large numbers of undecided voters is a bright spot in an otherwise gloomy American political scene.

But unlike soooooooo much of what Trump said and Tweeted daily for four years, he wasn’t wrong about this being a political issue. There really are moves afoot to modify local control of land use and zoning. It’s just that they are not new and they are certainly not primarily federal. Way back in 1975, the Supreme Court of New Jersey issued a landmark ruling against the exclusionary zoning policies in the Mount Laurel community, saying (in so many words): “Look, we see what you’re doing and you have to knock it off.”

The New Jersey Supreme Court’s ruling in the Mount Laurel case lays it all out. Suburban communities want to attract development that will generate tax revenue — affordable housing is not that. Also, as the ruling states, “exclusionary zoning practices are also often motivated by fear of and prejudices against other social, economic, and racial groups”. But zoning is supposed to be used to promote the general welfare — not just the property values of a single community.

The ruling goes on to say that “however much we might wish it, we cannot expect rapid, voluntary reversal of such attitudes.” And it lays out a plan for allocating a fair share of a region’s affordable housing need to specific communities.

This April, the rich, white people of Fairfield, Connecticut went out of their way to prove what the New Jersey court said 45 years ago: white people aren’t going to voluntarily embrace changes that might make their communities less white and/or affluent. In Connecticut, bills have been proposed to change how the fair share of affordable housing in communities is calculated and to make it harder for communities to reject some kinds of affordable housing proposals. And there have been relatively well-attended protests against these bills, all centering around the key question: who gets to control who lives where?

A statement like “zoning is the civil rights issue of the 21st Century” is at once banal and hyperbolic — like saying “soy is the future”, or “a great lawn starts with great mulch”, but it is true. In the past couple of years, white America has woken up — somewhat — to its own racism. People are already waking up to, and being repulsed by, the racism that was baked into how our cities, towns, villages, and neighborhoods are structured. Increasingly, the question of how to undo this structure will be a local political issue, and elected officials are going to have to choose which side of the debate to be on. How Connecticut, one of the more progressive states in the nation, moves on this will say a lot about what is and is not possible in other states.

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Aaron McKeon

Aaron McKeon

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Professional planner, unprofessional writer. Member of the American Institute of Certified Planners. Also, a Sunday School teacher.