Battle Lines Drawn Over Affordable Housing vs. Single-Family Zoning

As politicians aim to bring more homes to suburbia, the meaning of property rights is up for debate

By Tim W. Ferguson

Zoning regulation for residential neighborhoods is becoming a hot new political battleground in America. In the name of “affordable housing,” urban and suburban planners want to change regulations that prevent property owners from creating multiple-family housing in neighborhoods of single-family homes. This fight transcends traditional left-right ideological lines and has even divided the libertarian movement. Meanwhile, a political backlash is emerging as middle-class and working-class residents fear that changes will erode their quality of life and the value of their homes.

Progressive jurisdictions such as Minneapolis and the state of Oregon pioneered regulations to knock down some residential zoning barriers. But it was the Golden State that took the most noted step last fall. California’s new law, commonly referred to as SB 9 allows homeowners to enlarge their structures into a duplex in most circumstances. When space permits, they may even divide the parcel in two and then build one or two more units. To discourage speculative or corporate developers, the law requires the original owner to be living on the site.

The California act is spurring various recriminations. Homeowners in stable neighborhoods typically resist new or denser construction nearby. The hilly Silicon Valley redoubt of Woodside even tried to declare itself a mountain lion habitat to gain an exemption from the new permissiveness on building. That effort failed, but middle-class communities are going to court over the loss of local control.

Dividing Left and Right

Even though the law was championed by some progressives, the issue divides the left. Some groups opposed SB 9 on the same anti-gentrification grounds that they often cite to oppose developers; they won concessions but not enough to satisfy them. They think “Wall Street” investors will find ways around the limitations. An initiative geared to the 2024 ballot will seek to undo the legislature’s act.

Meanwhile the idea of a seemingly freer market in housing has attracted some on the right to join with social levelers on the left to pry open desirable patches of urban and suburban property that are now one-household only. Discourse examined the libertarian idea of relaxing such municipal restrictions in this story.

In libertarian circles, the matter evidently helped spark the “firing” of Randal O’Toole, longtime land-use and transportation fellow at the Cato Institute. O’Toole sympathizes with homeowners who maintain that single-family zoning protects property rights and neighborhood stability. Cato, which adheres to more purist notions of usage rights—you have no right to meddle with somebody else’s property plans—told O’Toole that his position was eliminated in a reorganization, he wrote.

Many conservative politicians hold views like O’Toole’s and see upholding local prerogatives (read: neighborhoods) as an issue that can win over some working-class and suburban voters. In this respect, zoning is much like the tough-on-crime wedge that has worked for Republicans.

A Fierce Backlash

The political potency of single-family zoning was evident in January when New York’s new governor, Democrat Kathy Hochul, revealed plans in her state budget to compel local authorities to accept “accessory dwelling units” on most home lots. Such a measure, akin to the SB 9 approach but marketed under the more innocuous-sounding name “granny flats,” triggered an instant firestorm on Long Island, where suburban Democrats already were under fire on crime and COVID issues. Hochul’s idea was panned even by the editorialists at left-leaning Newsday. Hochul “walked back” the plan last month.

For O’Toole, the single-family fight is wrapped up in a larger battle with what he sees as an attempt by urban-planning elites to impose lifestyle parameters on an unwilling population. For years he has opposed urban growth boundaries that are designed to prevent “sprawl,” and has also fought mass transit schemes aimed at reducing personal vehicle use. This puts him at odds with the fraternity of "market urbanists"—planners armed with microeconomics—who want to curb the spread of subdivisions and concentrate construction near transit lines.

There’s an interesting historical nexus here. Harvard’s Joint Center for Housing Studies is supportive of the new options on single-family lots, as you might expect from liberal academia. But it was once headed (under a previous arrangement with the Massachusetts Institute of Technology) by Prof. Bernard Frieden, who in 1979 published a book, The Environmental Protection Hustle, that was an early bible for opponents of growth controls such as O’Toole. Property rights can be a transitory battleground!

Limiting Rights

Philosophically, at least, it stands to reason that property rights regarding land use cannot be limited to certain areas. For example, if parcels on the periphery of urban or suburban areas are kept off the market by zoning regulations while open development is welcomed closer in—basically where an SB 9 takes us—the middle or working classes will be displaced from those more central areas over time. Rising land prices will dictate that yard space is available only to the rich.

The libertarian Institute for Justice argues that single-family zoning cannot be considered an implied right from the purchase of a home in the same way that holders of taxi medallions cannot claim a right to exclude other ride-for-hire providers. Allowing multiple dwellings on a lot would be a form of deregulating the housing market. The only basis for a homeowner’s property right that maintains single-family use throughout a neighborhood would be through covenants, for example the covenants, conditions and restrictions, or CC&Rs, of homeowner associations.

For what might be called the populist right, however, this battle is more cultural than economic. The family that, at considerable cost, has found calm and support on streets populated by people of similar preferences and wants simply to be “left alone” now faces a new threat from activist government.

Incentives to Overcome Resistance

How will this matter play out? California’s law will surely be tested in court and perhaps at the polls. In the future, the affordability lobby may try a different tack, as suggested by New York’s Hochul in her retreat: Find ways to “incentivize” the local adoption of denser zoning by rewarding cooperative localities with state grants. Of course, this is a backward way of arriving at the housing intensity that an unfettered market might produce. Along the way, some developers and some home seekers (who meet the income qualifications for “affordable housing”) will receive special consideration.

A simpler but less politically palatable way to tolerate zoning strictures while still putting a thumb on the housing scales would be to impose a penalty on owners in the single-family zones. Because these areas are thought to incur more public costs per square foot of living space, a “community service fee” could be imposed to cover this extra burden.

In truth, the community gains and losses from single-family enclaves are hard to quantify. Stable residential blocks are fundamental to quality of life, but is the detached house a prerequisite for that stability? It may have seemed that way when owner-occupied single-family homes were the norm. But that is changing as an increasing percentage of American homes are held by companies set up to rent them out.

Ideas Whose Time Have Come?

There is an argument that the prerogative to block any neighbor’s use of a property not only injures that individual but over time also retards the vibrancy of the whole town. “The result,” argued law professor Richard Epstein in a 2008 essay: "an overall level of development that is lower than many local citizens would want, coupled with a gradual depreciation of the tax base and infrastructure on which local communities depend.”

Epstein delivered that paper in honor of Bernard Siegan, a fellow legal scholar who had died in 2006 following a career devoted to land-use regulation. Siegan came to believe that zoning was a failed policy in practical terms, achieving neither stability nor prosperity and violating rights in the process. His maverick notions won him an appellate judicial nomination from President Ronald Reagan and rejection by the majority-Democratic Senate.

Siegan was unable to remake property rights in the American metropolis, but his ideas now look prescient. Legislators, special interest lobbies, homeowner voters and, yes, ultimately judges, will have to grapple with these issues. Just like the roads in a walled subdivision of single homes, the debate and decisions go in roundabout directions but eventually must lead to one point of departure: Who will decide for the neighbors?