To commemorate the 100-year anniversary of the nation’s first zoning code, the New York Times featured this fascinating infographic illustrating which buildings in Manhattan couldn’t be built again today because of the Big Apple’s zoning restrictions (spoiler alert: nearly 40 percent wouldn’t make the cut). The reasons range from being too tall, to having too many apartments or businesses.
As Stephen Smith of Quantierra, the real estate firm that conducted the survey, lamented, “Look at the beautiful New York City neighborhoods we could never build again.”
Over the past century, cities nationwide have used zoning to subordinate private property rights to government preferences. In its 1926 decision in Euclid v. Ambler Realty, the Supreme Court upheld government’s zoning power to restrict individual owners’ right to choose how to use their property, ceding that decision-making authority to government and communities at large.
As Timothy Sandefur and I discuss in our book Cornerstone of Liberty: Property Rights in 21st Century America, that decision has had disastrous implications for those deemed “undesirable” by their neighbors – including immigrants and people of different races and socio-economic statuses.
Too often, zoning is used as a means for government to impose its preferred social values on the general public. One example is so-called “obesity zoning,” an attempt to micro-manage what people eat by restricting the number of fast food restaurants allowed within a given area. Such restrictions have proven popular with some city planners who seek to use government power to impose health and lifestyle choices on the public. Los Angeles has prohibited the development of new fast food restaurants in certain low-income areas, even though taking away affordable food does not help low-income families eat better. Detroit forbade certain carry-out and drive-in restaurants from locating closer than 500 feet from schools. The federal Centers for Disease Control have even published recommendations for local officials to use in fashioning zoning restrictions that “support healthy eating and active living” by, among other things, “changing the locations where unhealthy competitive foods are sold,” “limit[ing] advertisements of less healthy foods,” or “the use of traffic calming approaches (e.g., speed humps and traffic circles)” to encourage people to walk instead of drive.
In practice, such zoning restrictions shut down locally-owned businesses, restrict consumer choice, and effect a considerable decline in the value of property zoned for business uses. “Obesity zoning” merely redistributes taxpayer resources to impose a lifestyle that bureaucrats consider acceptable, with all the costs borne by citizens and businesses in the form of higher food prices and less freedom of choice.
Cities are also using zoning to crack down on home-sharing, punishing people who allow guests to spend the night in their homes with thousands of dollars in fines and even jail time. From Honolulu, HI, to Jerome, AZ, powerful hotels and vocal neighbors are successfully urging cities to ban property owners from offering their homes to travelers, despite the fact that these restrictions have no connection to the government’s legitimate functions of protecting health and safety. These zoning ordinances limit choices, make vacationing more expensive, and deprive people of the right to safely use their property as they see fit.
These consequences recently prompted Arizona Governor Doug Ducey to sign legislation that curbs the zoning power of municipalities, preventing local governments from passing blanket bans on home-sharing. Cities can still enforce rules that protect quiet, clean and safe neighborhoods, but they can't impose one-size-fits-all prohibitions that cause more problems than they solve.
Cities should focus their zoning efforts on enforcing legitimate rules against nuisance instead of passing broad restrictions that impose bureaucrats’ preferred aesthetic and social values and violate the rights of property owners.
To learn more about how excessive zoning restrictions undermine property rights and thwart innovation, you can listen to this Federalist Society podcast on protecting property rights in the sharing economy.