‘Who better to determine local needs than property owners and concerned citizens themselves?’

The Cato Institute’s Vanessa Brown Calder is skeptical of the Obama administration’s suggestion that state governments can play a role in liberalizing land-use regulation, a policy area usually dominated by local governments.

In an otherwise thoughtful post responding to a variety of proposals, she writes that federal and state-level bureaucrats should step aside to allow local advocacy groups to fill the void. She asks, “Who better to determine local needs than property owners and concerned citizens themselves?”

Pretty much anyone, really. Local control of land-use regulation is a mistake and concerned citizens in particular are ill-suited for making decisions about their neighbors’ property.

Supporters of free societies usually oppose local control of basic rights for good reason. Exercising one’s rights can be inconvenient for or offensive to nearby third parties. Protesters slow traffic, writers blaspheme, rock bands use foul words, post-apartheid blacks live wherever they choose with no regard for long-held South African social conventions, and so on. These inconveniences obviously don’t override rights to freedom of expression, but lower levels of government might be persuaded by people whose sensibilities are offended by these expressions.

People are more likely to favor restrictions on rights when presented with a specific situation than they are when asked about general principles. People are even more likely to favor restricting a specific, disliked person’s rights.

The landmark First Amendment case, National Socialist Party of America v. Village of Skokie, is instructive. The plaintiffs, American Nazis planning a parade through a neighborhood populated by Holocaust survivors in Illinois, sued on First Amendment grounds when the local government tried to prevent them from carrying swastikas. The Supreme Court eventually ruled in favor of the Nazis because the First Amendment protects peaceful demonstrations with no regard for the vile or hateful content of the ideas being promoted by the demonstrators.

If free speech cases were handled like land-use reviews—a system of ad-hoc hearings in which “concerned citizens” create de facto rules—the residents of Skokie would serve as both defendants and judges. The Nazis would have lost their case—hurray!—but a nationwide system where nearby citizens could veto disliked freedom of expression would be terrible.

The Nazis wouldn’t be able to parade, but Christopher Hitchens would have never published a word, Tipper Gore would have banned all music, USA Today would be the only newspaper, and civil rights protesters would never have been allowed to march.

Federalism is great because it allows states and localities to try different policy approaches or reflect different voter preferences. However, states and localities should only be given control over issues that have several valid approaches and are within the purview of government per se. Local land-use regulations often fail to meet either of these criteria.

Instead, land-use regulations can, and often are, used as cudgels against disfavored groups or individuals. Issues of personal taste—yard size, material choices, building design, amount of parking—can be weaponized when turned into regulatory requirements and greatly decrease a plot of land’s value.

Minimum parking requirements, minimum setbacks, maximum floor area ratios, and similar rules may seem like issues of taste or preference, but they can all be employed to keep people out of a neighborhood or to kill an unwanted project.

Floor area ratios and parking minimums can effectively ban apartments and other affordable housing—an effective tool to keep out unwanted racial groups when there is large overlap between economic status and race.

Development and licensing rules that grant standing to complaining neighbors allow people with ulterior motives to hold up a project for years until a landlord or developer gives in or goes bankrupt. Local NIMBYs who think a 7 Eleven is going to bring in too many poor customers can protest the lack of parking, effects on “neighborhood character,” excessive use of floor space for retail, and so on.

An entrepreneurial mayor can have an entire city zoned so restrictively that every major project requires special regulatory permission that can only be obtained through a years-long administrative process and seek bribes from developers along the way. Washington, D.C. is a paragon of this model.

Allowing all local governments nation-wide to make decisions on hyper-local levels, allowing neighbors to veto projects, and the ease with which land-use regulation can be abused is the equivalent of passing a nation-wide, extremely restrictive zoning code. It’s also unnecessary.

Detailed city plans and ad-hoc hearings can be replaced with general rules of universal application that allow landowners and potential buyers to know precisely what they cannot build ahead of time.

While individual homeowners, developers, and entrepreneurs are the best source of the local information needed to build thriving neighborhoods and cities, local knowledge is not required for creating sensible land-use regulations. Local judges can settle nuisance disputes and determine when a development actually violates the property rights of another—simple rules can allow for a very complex society—but this process has been almost entirely usurped by regulators and planners under the current regime.

The Obama administration’s proposed toolkit, to which Ms. Calder Brown was responding, isn’t perfect, but parts of it would move cities away from the current model of regulation and towards the more liberal model I’ve described.

As the administration wrote, “[a] strong baseline at the state level creates an even playing field for local land use decisions.” That is, the paper endorses a state-level regulatory approach similar to the role of the Bill of Rights after the passage of the 14th Amendment: a higher level of government that sets limits on how restrictive lower levels of governments can be.

The list of state-level policies endorsed in the paper is impressive:

California Governor Jerry Brown’s proposal in which developments that conform to zoning rules cannot be subject to any discretionary approval from local regulators; Rhode Island’s expedited permitting law which sets limits on how long localities can wait before approving a project; California’s 2015 override of local parking minimums.

As you might expect, California’s proposals are larded up with ineffective subsidized housing schemes, but they highlight the potential for scaling back the oppressive, discretionary regulatory regimes that control every major city in the United States.

As an added bonus, state-level rules are written on a broader, more general level by necessity. Making rules that govern millions of individuals necessarily limits the ability of the law to be used to victimize specific people or halt individual projects. Because these state-wide laws ask voters to weigh in about what kind of projects should be allowed in general—instead of what should be allowed literally next door—voters are more likely to support liberal land-use policies. Free market fans should welcome state-level limits on local land-use regulation. Thanks, Obama!

Michael Hamilton is an urbanist and anti-NIMBY in Washington, DC. His Twitter handle is @imbydc

[Originally published on Medium.com]