City Unplanning

• Published in: The Yale law journal Vol. 122; no. 7; pp. 1670 - 1737
• Main Author: SCHLEICHER, DAVID
• Format: Journal Article
• Language: English
• Published: New Haven The Yale Law Journal Company 01-05-2013; Yale University, School of Law; Yale Law Journal Company, Inc
• Subjects: Cities; City planning; City politics; Decision making; Economic aspects; Housing; Housing development; Land use; Land use planning; Legislatures; Local government; Political aspects; Political economy; Political participation; Political parties; Residential buildings; Studies; Urban planning; Zoning; Zoning law; Zoning ordinances; United States > US
• ISSN: 0044-0094; 1939-8611

Generations of scholarship on the political economy of land use have tried to explain a world in which tony suburbs use zoning to keep out development but big cities allow untrammeled growth because of the political influence of developers. But as demand to live in them has increased, many of the nation's biggest cities have substantially limited development. Although developers remain important players in city politics, we have not seen enough growth in the housing supply in many cities to keep prices from skyrocketing. This Article seeks to explain this change with a story about big-city land use that places the legal regime governing land-use decisions at its center. In the absence of strong local political parties, land-use laws that set the voting procedure in local legislatures determine policy results between cycling preferences. Specifically, the Standard Zoning Enabling Act (SZEA) creates a peculiar procedure that privileges the intense preferences of local residents opposed to new building. Amendments to zoning maps are considered one-by-one, making deals across projects and neighborhoods difficult. Legislators may prefer to allow some building rather to stopping it everywhere, but are most concerned that their districts not bear the brunt of the negative externalities associated with new development. Absent deals that link zoning changes in different neighborhoods, all legislators will work to stop the zoning amendments that effect their districts. Without a strong party leadership to whip votes into line, the preferences of legislators about projects in their districts dominate and building is restricted everywhere. Further, the seriatim nature of local land-use procedure results in frequent downzonings, as big developers do not have an incentive to fight reductions in the ability of landowners to build incremental additions to the housing stock as of right. The cost of moving amendments through the land-use process means that small developers cannot overcome the burdens imposed by downzonings. The Article concludes by considering several forms of legislative process reform that mimic procedural changes Congress adopted in order to pass international trade treaties.