Planners, like all professions, have their own useful mythologies. A popular one goes something like this: “Many years ago, us planners did naughty things. We pushed around the poor, demolished minority neighborhoods, and forced gentrification. But that’s all over today. Now we protect the disadvantaged against the vagaries of the unrestrained market.” The seasoned—which is to say, cynical—planner may knowingly roll her eyes at this story, but for the true believer, this story holds spiritual significance. By doing right today, the reasoning goes, planners are undoing the horrors of yesterday.
This raises the question: are planners doing right today? That’s not at all clear. Just ask Hinga Mbogo. After emigrating from Kenya, Mr. Mbogo opened Hinga’s Automotive in East Dallas in 1986. Mr. Mbogo’s modest business is precisely the kind of thing cities need, providing a service for the community, taxes for the city, and blue-collar jobs. While perhaps not of the “creative class,” Mr. Mbogo and his small business represent the type of creative little plan that cities cultivate and depend on. Hinga’s Automotive has thrived for 19 years and looked primed for another 19.
Unfortunately for Mr. Mbogo, Dallas planners had other plans. In 2005, the city rezoned the area to prohibit auto-related businesses. While rezonings—particularly upzonings—aren’t necessarily a bad thing, Dallas planners opted to force their vision through and implemented a controversial planning technique known as “amortization.” Normally when planners rezone an area, they allow existing uses that run afoul of the new code to continue operating indefinitely. These are known as “non-conforming uses” and they’re common in neighborhoods across the country, often taking the form of neighborhood groceries, restaurants, and small industrial shops. Yet under amortization, the government forces non-conforming uses to cease operating without any compensation. In the case of Hinga’s Automotive, this means Mr. Mbogo must shut down his thriving business.
Hinga’s Automotive is on the left. Note the hip/urban/sustainable street scene on the right. (Google Maps)
You might be asking, what has Dallas officials bullying immigrant entrepreneurs? The sad truth is that the rezoning was expressly designed to gentrify the area. As one city council member awkwardly put it, the hope was to attract hip urban businesses “like Starbucks and Macaroni Grill.” In a bizarre turn of events, even the staff of the Dallas Morning News have taken to berating the man. Mr. Mbogo’s greatest sin is not that he hurt anyone. He and his business simply didn’t fit into the plan. It’s a familiar story to anyone who has studied planning history and it’s a familiar story to anyone who follows planning practice today. Wherever the minutiae of city life is controlled and regulated by a political process, small plans—particularly those of marginalized groups—will never be safe.
Hinga’s Automotive is a tiny black-roofed shop across from the apartment complex. As you can see, they desperately need more land for hip/urban/sustainable apartment buildings. (Google Maps)
This particular form of planning mythology is important even if it is false today. Planners did displace thousands of low-income Americans, force sprawl and automobile dependence, and undermine the small businesses that make for healthy cities. But at least in the realm of land-use regulation, redemption doesn’t mean more control—it means less. So long as planning commissions and city councils are empowered to segregate uses and push around the weak, they will. If urban planners want to undo the damage they have wrought, they can start by taking apart the system they created.
P.S. Mr. Mbogo isn’t taking this facing down. With the help of the Institute for Justice, he is taking Dallas to court to defend his rights. Learn more about the case and how you can get involved.
Cristine says
December 12, 2016 at 11:09 amNolan Gray,
I live in Dallas and totally agree with you. There was a recent project in my neighborhood to “restore” a unique one-way couplet to a two-way operation. Unfortunately, context sensitive design, which is a goal of the city’s Comprehensive Plan, was never discussed at City Hall or during the myopic community meetings.
If city staff did some investigation, they would have found that this one-way couplet is unique in that it saved what we call historical buildings on Tyler Street. In the late 1950s, a planned six lane street was tweaked a bit because of right-of-way problems, thus creating the Tyler/Polk one-way couplet. The couplet was being called a “mistake” from past planners and must be corrected, bring the street back to the way it was. Yet, the couplet saved historical buildings.
Ironically, the intersection is where Better Block did their first demonstration, back in 2010, proposed a public plaza, Kings Plaza, to create a safer intersection and a unique public plaza. Commercial property owners see the ROW differently. They do not want a plaza because it will become an eyesore – so they say. What they want is to abandon the ROW, purchase it, and redevelop the land. Better Block’s first demonstration spot will be an auto-centric intersection – no road diet, no parklets, no cool pedestrian crossings, no bike lanes, no transit lanes, and not safer.
This street conversion project was 100% the objective of the Councilmember and the community was denied workshops and any sort of discussion with regards to development of alternative designs. This is in total contrast to context sensitive design and the city’s adopted Complete Streets design manual.
How is this “better” than the past?
Max Gardner says
December 12, 2016 at 11:27 amComparing the displacement of people to the displacement of businesses is a bit of a stretch, don’t you think? Relatedly, on what grounds have you made the claim that Mr. Mbogo has been forced to “shut down his business”? If his business has been such a success, it seems like he should be able to just move his shop (and his loyal customer base) around the corner, no? I wholly agree that its outrageous the city can force him to do so without any form of compensation, but trying to frame this as some obvious misstep of progressive planning seems a little like you’re grasping at straws.
Cristine says
December 12, 2016 at 11:45 amThere was no “around the corner” opportunity. Auto shops are considered ugly and impede other businesses from moving in; yet, privately owned auto shops provide a choice to consumers – such as: they don’t have to go to the dealership. The guy was forced out because of location-location-location, property values. There is much more to the story and no one may ever know the whole truth, but his loyal customers thought the guy got a bad deal.
Regarding “same old story” – planners made mistakes in the past? Sure, but are we not continuing the same old story? In Dallas, yes we are.
430MLK says
December 12, 2016 at 1:34 pmI don’t doubt the short-sightedness and retrograde actions of city planners, but placing blame entirely on planners (particularly on a free-market-centric site such as this) completely papers over the push that undoubtedly occurred by the private sector, seen and named in the picture above as the hip/urban/sustainable constructions on the right-hand side of the road. Planners generally don’t make changes except in spots where the private market wants entry–and that’s what causes gentrification.
Gray should know all about this “private-sector” push as it has defined the planning industry–and gentrification–of his former city of Lexington, Kentucky, for at least a decade now, if not longer.
aplofar says
December 14, 2016 at 10:18 amBut what gives the private sector an incentive to push? It’s because the planning department *has the authority* to enforce these rules. When cities create these massively powerful institutions, then it’s almost a foregone conclusion that unscrupulous people will use it for their ends.
The solution is to not create these super-powerful entities in the first place.
aplofar says
December 14, 2016 at 10:50 amThis reminds me of some conversations I’ve had with an acquaintance of mine who is by education a planner, though not working in the field. This person has complained bitterly to me of the bad policies of current planning departments, on how they trample on hapless people and serve the interests of the powerful. And I agree, and say, “my, it sounds like these planners are dangerous. Maybe they should have less power.” And she says, essentially, “no, the power is fine, what we need is to have the right people in charge of it. To ensure the common good.” To her, we just need to get rid of the Bad People currently in charge, and put Good People, such as herself, in their place.
I am utterly unable to convince her that arbitrary power over others is inevitably corrupting and corruptable, that people don’t necessarily know what’s best for each other, and that intentions don’t guarantee results. I also cannot convince her that negotiation between individuals is *at all* different from orders given by the state – and if all interaction is force, then all that’s required to legitimize the use of force is that it be for desired ends.
I am left somewhat relieved that the planners will not accept her into their ranks. Certainly many of them think the same way, but they don’t need any more encouragement.
430MLK says
December 14, 2016 at 12:04 pmIn the case of gentrification, the big incentive to push is a massively disinvested market that is re-made as newly fashionable by newly arrived private investment and thus a profitable investment for other private interests (banks creating mortgages, private investors small and large, realtors, media outlets needing cultural revival coverage, new capitalized business owners looking for a hot market to place their coffee shop/brewhouse/etc.)–not changes in zoning. If one wants to go further back, we might also finger the private market that chose to disinvest during the previous housing cycle in the areas now getting gentrified, which after several decades created a “cheap” area to re-develop relative to the greenfield development of the suburbs.
I agree on creating too-powerful entities, but there is a big difference between “don’t create super-powerful entities’ and ‘these entitities drive gentrification.” Gentrification is a private-market problem. If and when zoning changes, it does so to placate the needs of the private market–which, granted, are often represented by unscrupulous people who push to use it for their private ends.
aplofar says
December 14, 2016 at 12:29 pmI would argue that the actions of planners are in fact the driving force behind what’s called “gentrification” – broadly the thesis of this Market Urbanism post: http://www.marketurbanism.com/2015/01/28/2-ways-to-fight-gentrification/
Gentrification is driven to “under-invested” areas by the fact that zoning – those planners again! – keeps development out of the highest-demand areas. This is a perfect example of how incumbent private interests (homeowners in wealthy areas) use planning authority to shut people out. When development is prevented in the wealthiest areas, the totally expected occurs – that investment goes elsewhere.
Whereas, if development rights (air rights, shadow rights, noise rights) were tradable, and not determined by planners enforcing the preferences of the politically connected, it would be possible for this investment to move into the most in-demand areas.
430MLK says
December 14, 2016 at 1:21 pmWe must live in different cities. In my city, under-invested areas generally follow the history and geography of private-sector bank redlining from the previous private development cycle, and most of the gentrification has come with little or no change in zoning. It’s initial phase has occurred in areas that have first been de-populated to some extent and have commenced with a rhetoric of “diversifying” the neighborhood with higher-wealth residents.
Zoning is a mechanism, one that certain groups (usually higher-order capitalists, I think we agree) get to deploy for their private means. Hence, upscale high-rises can and often do get put into high-wealth areas (look at Manhattan…or even Atlanta)…though down-market buildings, which zoning-wise are exactly the same building as an up-market building, do not get built.
I am unclear on how tradeable rights would be any better as a mechanism than zoning…or why it wouldn’t be worse than the relatively limited zoning choices that are overlaid upon all city space. Buying development rights entails a cost that will also push developers into markets that are more affordable. Is the suggestion that, without zoning, developers will be able to go into high-income neighborhoods and outbid their high-income neighbors for the rights to develop an up-zoned cluster of properties? (1) I fail to see how the high-costs of that process would divert cash-poor recent college graduates who tend to be early-wave gentrifiers. (2) Isn’t that why developers head to gentrifying urban areas–the costs of collecting property rights is significantly cheaper on the shifting edges of poor black urban neighborhoods than purchasing the same property in more upscale locations?
aplofar says
December 14, 2016 at 1:54 pmI think you’re misunderstanding what I’m saying. What I mean is that unchanging zoning is itself the reason why new investment is pushed into low-income areas. It’s not the change in zoning that causes the problem, it’s the lack of change.
“Zoning is a mechanism, one that certain groups (usually higher-order capitalists, I think we agree) get to deploy for their private means. Hence, upscale high-rises can and often do get put into high-wealth areas (look at Manhattan…or even Atlanta)…though down-market buildings, which zoning-wise are exactly the same building as an up-market building, do not get built.”
Yes, some upscale buildings are put into high-wealth areas such as in Midtown Manhattan and Buckhead in Atlanta – but note where they aren’t put: in *most* of the wealthy, mid-to-low density areas of the city. Yes, there will be a *few* high-income places where development is allowed, but by and large they aren’t, and this is what causes development to go elsewhere. (And most housing is never built as down-market to begin with; it’s built as mid- or up-market, and depreciates from there.)
“I am unclear on how tradeable rights would be any better as a mechanism than zoning…or why it wouldn’t be worse than the relatively limited zoning choices that are overlaid upon all city space. Buying development rights entails a cost that will also push developers into markets that are more affordable. Is the suggestion that, without zoning, developers will be able to go into high-income neighborhoods and outbid their high-income neighbors for the rights to develop an up-zoned cluster of properties?”
Tradable rights would be better because it would allow people (through developers, effectively) to bid for rights to build which are currently kept off the market. Political clout allows incumbents in high-wealth neighbourhoods to keep things the way they are for a much lower price than they would have to pay if they wanted to buy up all the rights themselves. Tradable development rights would allow a price to actually emerge, rather than the price being “indefinitely high, because it’s illegal.” Regardless of how badly a high-income homeowner wants his neighbour not to sell out to an apartment developer, he’ll have a hard time outbidding the, say, ten slightly-less-wealthy families that will move in. Zoning, as it is non-tradable, allows a small number of politically influential people to enjoy the neighbourhood as they would like it, while insulating them from the bids of developers. It’s a classic mechanism of (generally high-income) people using legislation to protect their assets from competition.
The reason that college graduates tend to be “early wave” gentrifiers is because the housing market is kind of like musical chairs – if there’s not enough units, people get bumped down to their next best option. If there’s not enough new units in high-income neighbourhoods, the wealthy will buy up units in middle-income neighbourhoods. Then the middle-class, having been outbid by the wealthy, will buy up units in low-income neighbourhoods. Thus gentrification. Allowing more housing in wealthy neighbourhoods permits that demand to be absorbed in those places, reducing the likelihood that people will be “bumped down the housing ladder” in search of deals. It’s true that the cost of collecting property rights is lower in lower-income neighbourhoods, but the demand is commensurately lower – as evidenced by the fact that prices are lower! Demand for housing *wants* to go into high-income neighbourhoods, it’s simply not permitted to – so it goes elsewhere.
Cristine says
December 14, 2016 at 4:23 pmaplofar . . . . what is your solution, if you believe we need one, to the “same old story” with city planning? Should we learn from our mistakes? Should we stop “planning” in the arena of the particulars instead of the whole? (thinking here about districts alone as opposed to districts as a piece in the city as a whole) There are good cops and bad cops, but they are their system as a whole. Planners and city hall are similar. How do you tell one neighborhood they are not worthy of receiving the same resources, the same due process as other neighborhoods? If there is no such thing as due process, should we stop preaching as if there is?
aplofar says
December 14, 2016 at 5:18 pmGood question. While it’s true that there’s good cops and bad cops (and this is an important part of my point – that people are diverse and complicated), it’s easier to distinguish between good laws and bad laws.
Good laws, I would say, generally require that people not violate the rights of others or damage their property, or put each other at risk without consent. In planning, this is why there are things such as fire codes and speed limits. These laws try to prevent “acts or events which have victims”.
Bad laws generally take the form of requiring that people not do certain things even if all parties agree. These would be things like laws against rooming houses, or against otherwise-legal uses of buildings, or enforcing parking minimums. These laws are usually justified by the notion that the neighbours or the “public interest” will be harmed otherwise. But the problem is that such acts are not hazardous in and of themselves, they’re just simply not preferred by some people. This ends up making a patchwork of the law – certain things are legal here, not legal there, for no particular reason other than “the planners said so”. It is, indeed, the *opposite* of due process. With planning as it currently is, one’s home and property is simply at the mercy of the immediate decisions of the planners.
My suggestion, made in another comment, is simply to bundle together the “rights” that are currently in zoning and planning into normal property. This way, if you wanted to build, say, a tall apartment tower, rather than going to the planners and hoping you win in a fight against the residents, you could instead purchase the “right to shadow” from them – or not, if the price was too high. Or, if you wanted to open a bar, you would have to negotiate with the residents for the “right to noise”. This would mean that, rather than winning planning concessions through political clout, people who wished to make impositions would have to pay – and could be refused by the existing owners/residents. It would also mean that people would be compensated for these impositions.
The other big argument against planning so much is that the planners cannot possibly, and do not, understand the thing they are trying to organize. The city is constituted through an enormous number of interactions, activities, and individual preferences, and the simplistic tools of the planner – houses over here, industry over there, parks right here – just keep failing to keep up with the actual complexity and diversity of the thing. This article is a good example of that – the planners have an idea of what they think an area *should* be, but have no way of judging whether their plans are “worth it”, have no substantial stake in their success, and very little ability to use their tools to make it come about.
Cristine says
December 15, 2016 at 9:49 amI agree with what you are saying. To me planned growth could impede spontaneous – this is what we need now in our neighborhood – and keep creativity and innovation out of an area that could use a niche, their own brand.
It seems to me that zoning kills, or impedes, diversity. Whether diversity is in the public interest or not is a whole other issue. Diversity, as with many other elements, is up to interpretation, just like planning.
Jane Jacobs said “The minute you begin to prescribe for cities infrastructure or programs comprehensively, you try to make one size fits all.”
A good point and this reminds me of when I was a child walking to my local park (1970s) and passing small businesses (located in a small building next to a single-family home, sharing the lot) such as hair salons and small convenience stores – great for a kid with a pocket full of change and penny candy. Or a duplex turned into a single-family home, and zoning doesn’t allow the house to be turned back into a duplex, its original use. Zoning killed these “walkable” elements.
What is authentic organic growth? Is there such a thing? Should there be?
Context sensitive design is an interesting step in due process, but if “discovery” is not authentic and the context is based on half-truths, or truths that benefit a few and not the whole – I don’t know – then what?
Or do we just have to accept that this is the way things are and do the best we can?
430MLK says
December 15, 2016 at 10:06 amThanks for the developed response. Ultimately, I don’t see how you’re solutions (granting private development companies tradeable development rights as a substitute for zoning) do anything but make the problem worse. I’m gonna give my many reasons for disagreement below in bulleted points. (Excuse the directness.)
(1) Private development corporations are less accountable to the public: Your implied argument is that private development corporations will be more accountable than public zoning boards. This seems to me a replacement that offers no benefits. Where is the evidence that private land corporations, I’m assuming like what we had when U.S. colonial development happened in the 16th/17th/18th centuries, will improve fair development. In fact, to the degree that development rights remained private–for example in the state of New York, which suffered under land-baron large-scale private development rights–there is pretty good evidence that such corporate-controlled land rights damage development when such development rights are contained in private land holdings. Why are private development corporations less democratic and averse to changes locally? Well….
(2) Free markets, in addition to not being free, are also uneven. The solution you propose to zoning doesn’t address who the “developers” are. (In New York, they were absentee owners who were able to make enough money off their holdings such that they had no interest in subdividing their land, which left New York out of much of the colonial economy, New York City excepted (which, by coincidence, had outgrown its history of large-scale land tenure.)
I’ll assume by private development rights being sold, you mean an open market. So, I live in Lexington, KY, which has a standard of living many degrees below most anywhere else in the U.S. Will the “developers” who get the trading rights be residing and earning their wealth in New York City? Will they be billionaires with the wealth to purchase on a whim, unlike me and most of the rest of my city (beyond the wealthy people you cite who push against change in their neighborhoods)? Will Donald Trump’s real estate corporations, which hold much property in areas all around the globe, be able to buy into my city’s development rights? How about a consortium of California Teachers Retirement funds? Will they be able to buy my neighbor’s development rights when he needs to scrape up some cash because our local employment market is cratering? Under your proposal, these entities–which have zero connection to my city or its unique development patterns and civic needs–will be able to buy into my city’s development patterns at significantly (for them, though not for me and most of my city’s residents) discounted prices. I’ll take my local corrupted zoning officers anyday over a Trump/Dubai/whomever land corporation looking to maximize their global profits.
This problem of free-market tradeable development rights will be exacerbated by the fact that….
(3) Land is a finite entity, most especially at the county level. Creating a market of tradeable goods that is, by definition (unlike, say, carbon pollution) finite, will undoubtedly create the problems of supply/demand that you cite….to many degrees worse than the generally-universally-applied zoning restrictions.
The only difference is that land speculation under the tradeable share paradigm will be even more encouraged by the fact that, as happens today with gentrification, that…
(4) Gentrification is propelled by a propensity for large landholders (those who have reserve capital) to buy-and-sit on properties until their holdings increase in value–not because they have improved that property, but because the “market” caught up with them two, three, ten, or more years later. (See Neil Smith’s work on this from the 1980s, where he documents the disinvestment of private developers in neighborhoods before the gentrification wave hits.)
But, even stipulating that all the free market land corporations are socially responsible (which would be against their LLC responsibilities)….
(5) How exactly will private land corporations operate any better at parrying to the rich than the zoning boards? Your response and article seem to pit a corrupt zoning board (bought off by rich capitalists who want no development in their neighborhoods) against a non-corrupt land corporation that should get access to development shares. This assumption sidesteps the fact that developers are already some of the most corrupt and powerful entities in any city. It seems entirely possible to me (in fact, probable) that this entity can also be captured, in part because wealthy residents can also, at the same time, be developers residing in neighborhoods that they do not want to develop. (In fact, in my city at least, they are.)
The wealthy resisting change in their high-demand neighborhoods, and the developers you want to give zoning rights to are not mutually exclusive. In fact, most any close look at urban gentrification will find a large number of speculative developers who bought property for cheap in disinvested urban areas….and just held them without improvement until the market changed. Since I view this homo-economicus development motive by developers as a giant cause of gentrification, I am loathe to suggest that developers should be given the keys to city zoning practices.
(6) How exactly do tradeable rights work? When I buy a house, must I now also own the tradeable zoning rights for it? How does that make housing any more affordable, and how does it make the (inevetible) homes that have a split ownership/zoning rights compete on a level playing field with those that have both intact?
In my state of Kentucky, the practice of separating land-rights from zoning-rights has been disastrous. It was proposed, developed, and enforced by land-raping coal companies and attached to “broad form deeds” that separated landowners (working-class Appalachians who farmed their land and utilized the forest commons) from the mineral rights-development underneath their land. Much of the signing away of mineral rights was done under dubious, duplicitous, and coerced conditions–by the land companies your proposal would empower (on steroids). As my state’s history clearly shows, this separation of land from land-rights (as you propose) was disastrous. Not only did private mega-large land companies exploit (create) this separation to the overwhelming detriment of the regional economy, it also destroyed any chance that people in that region could re-direct and develop a non-extractive Appalachian economy. (As someone who recently purchased land in rural Appalachia, I can attest that the separation of ownership from “rights” severely distorted (negatively) the values of seemingly similar property tracts…and this distortion had geographic implications–we would not buy near private land that had signed those rights away 60 years earlier.)
Simply put, the out-of-state land companies and their in-state lackeys who had the capital to purchase and enforce these development rights just didn’t care about the consequences of their extractive actions. And why should they–it was just a market to exploit (for them).
(7) While there are many problems with zoning, your solution also does not address what zoning does right. I live in a county that is not completely developed (like, say, Manhattan or a handful of other urban areas). In this fact, I am in the majority of urban-living Americans. Zoning, for me, also means that my city can restrict private land developers from developing in a manner that puts me, a city taxpayer, on the hook for over-extended water lines, electric connections, and road maintenance. THis is not a small issue. My city has been sued by the EPA for over a billion dollars because my city–following the push of real estate companies, real estate showers, and developers (the people you want to empower more)–expanded beyond its economic means. Because my real estate developers also view projects on a short time-frame (it makes them money), they also miss out on larger community needs. (Think of the 50s-80s/90s developer mantra to build out into the suburbs, and how that’s partially changed in the past decade as a new “style” of urban development/infill have been promoted by those same developers.)
Do you honestly think allowing developers–who are not beholden to any public vote or referendum, and much less if they are out-of-state land corporations–will improve things and are able to see beyond their own bottom line and into the next business cycle/generation? How? And what evidence can you offer? That seems to fly against any corporation’s reason for being.
aplofar says
December 15, 2016 at 11:12 amMy response to point (1) is that, by and large, those historical types of development rights were given as, effectively, mercantilist special privileges. When the government grants blocks of development rights as gifts or special allocations to private developers, that’s exactly the problem I am complaining about – and what exists now under zoning.
To point (2), I say that you’re essentially positing a contradictory situation. On the one hand, you say that the area has comparatively depressed prices, therefore the development rights will be easy for “outsiders” to purchase. On the other hand, you’re supposing that these entities of global money are trying to maximize their global profits. But if the prices for such development rights are low, that implies demand for them is low. Let’s be clear – I’m *not* saying that the planners or the government should set the prices for development rights (which would really just be rights to produce certain impacts, like noise, shadow, traffic, etc.) What I’m saying is that these development rights would be priced by the owners – that is, local homeowners and landlords. The aim of this is to bid up the price of development, and compensate people who are affected. If the demand for these development rights increases, such that profit-maximizing global corporations are interested in buying them, then the price of them will be bid up – yielding more money for the locals.
To point (3), yes land is technically finite, but only in the same sense as iron atoms are finite. Only a very small fraction is used as urban land, and there is an easy way to overcome the limitations of physical space, which is to build up. Land may be finite, but the “services” land provides are easily expandable.
To point (4), I would say that a major reason why buy-and-sit is a feasible strategy is because owners can anticipate “displaced demand” from high-income areas in the future. If it becomes possible, through actually pricing development rights, to build in the most-demanded areas, then buy-and-sit is no longer an attractive strategy.
To point (5), I would say, again, I am not proposing just *giving* development rights to developers (which is generally what happens now, when developers are sufficiently politically influential.) Rather, I am saying that they would have to be actually purchased from the property owners.
“This assumption sidesteps the fact that developers are already some of the most corrupt and powerful entities in any city. It seems entirely possible to me (in fact, probable) that this entity can also be captured, in part because wealthy residents can also, at the same time, be developers residing in neighborhoods that they do not want to develop.”
Ah, but *why* are they corrupt? Because they know they can use their political influence with zoning boards to get development rights that impact current residents *without compensating them.* It is the presence of power – the power to take without compensation – which corrupts, and which rewards corruption. When planning boards have the power impose costs on people for no compensation, and protect incumbents from competition, then of course corruption emerges.
“The wealthy resisting change in their high-demand neighborhoods, and the developers you want to give zoning rights to are not mutually exclusive.”
True – but what I’m saying is that, currently, with zoning, the wealthy are able to use their influence with planning powers to insulate themselves from the impacts of development at very low personal cost – they use the government to shut out competing bids. If the residents of a wealthy neighbourhood wanted to hold on to their development rights as a consortium, and not sell, they could – but they would have to actually forgo that money. Meanwhile, they would be in “competition” with people in other neighbourhoods who are willing to allow development for compensation.
As to point (6), I think you’re still misunderstanding what I’m proposing. What I essentially mean is that your *current* “zoning rights”, the ones under which you bought your house or business or whatever, would become your actual property, rather than just being something granted at the whims of the planning boards. So, imagine that you buy a house in a low-density, low-income neighbourhood, with zoning that prohibits increased density. Effectively, this limits things such as shadows, traffic, certain uses, and so on. Now, under the planning-based system, the city council and planners can just decide that your neighbourhood is next up for “renewal” and rezone it for development, or new uses, or higher density, or whatever they like. In theory, they’re “democratically accountable”, but that’s not much help if, say, 70% of the city’s residents think your neighbourhood is bad and don’t care about what you prefer – they’re perfectly capable of outvoting you. So the planning system can hit you with impacts or arbitrary rule changes *without compensation or consent*. But if these “rights” were actually a property right – so you would genuinely own an easement not to be shadowed, or not to be subjected to noise, or so forth – then anybody who wanted to develop would have to seek your consent, and compensate you.
A big reason why people, especially in high-income neighbourhoods, resist development is because compensation is generally not available. Their options are (A) Fight development: lose and suffer impacts/costs. (B) Fight development: win and don’t suffer impacts/costs. (C) Don’t fight development: suffer impacts/costs. Obviously it makes sense to fight even small development, because there’s no upside for current owners to new development! If they fight (A, B), they might avoid costs, but if they acquiesce (C), they suffer costs with no compensation. (Which, of course, means that a lot of development is directed to places where the locals just don’t have the resources/time/influence to fight, a.k.a. “gentrification”.) A plan where residents/owners can sell development rights means that compensated negotiation can take place.
Your example of coal country is the kind of problem I’m trying to solve. In that case, the government grants zoning rights to companies *regardless* of impacts on local property owners/residents. But what I’m proposing is that people should actually own the rights not to be impacted. So, everyone would own a right, for example, for their land not to be polluted, and if somebody wanted to do some polluting activity, they would actually have to purchase that right from everybody who’d be impacted – and of course, the people could also choose not to sell.
My main point is this – if these particular rights not to be impacted (shadows/light pollution, noise, air pollution, traffic, etc.) are made secure and tradable, then it will be much harder for developers to steamroller low-income people, who have little influence with government or planners, and much easier to negotiate with high-income people, who typically can use their influence with government to insulate their assets from competition.
aplofar says
December 15, 2016 at 12:23 pmWell, you’re getting at the heart of my critique – I take a fair amount of inspiration from Jane Jacobs, and she correctly points out that the many diverse plans of the citizens are frequently overruled and pushed aside by the ideas of the planners. And unfortunately, people often don’t even know that’s why things happened – they see things like only low-density neighbourhoods being built, or the end of small retail, or giant parking lots, and they assume that it’s just because of people’s preferences, or because big companies prefer it, or something. But actually, it’s because zoning makes it mandatory. But the zoning code is mysterious and complicated, so people blame their neighbours or whatever. It’s amazing the common it is, when people complain about some aspect of the urban landscape, that it’s actually required by law, and for no good reason. Most don’t know this.
I think “authentic” urban growth is possible, in the sense that it is growth directed by people directly demanding or involved in the process. I just don’t think it will come from urban planning, which, for all its fine words, is sort of irreducibly based on “you will do this/not do this…because we said so.” I think negotiation and trade are better foundations for urban growth.
Cristine says
December 15, 2016 at 12:39 pmI agree.
Heh, great minds think alike.
: – ))
Thank you for a great conversation !!!
aplofar says
December 15, 2016 at 12:53 pmLikewise!
430MLK says
December 16, 2016 at 11:53 amp { margin-bottom: 0.1in; line-height: 120%Thanks for
the responses, but I gotta say, now I just think the idea is B.S.
Here is why:
(1) First, your ideas completely side-step
the other, what, 40% of the population who are renters (often from
absentee landlords that your proposal empowers–particularly in the
neighborhoods you claim to champion). That’s inherently
anti-democratic, but enthusiastically pro-“free”market.
But I see land/zoning rights separation as
disastrous in other ways.
(2) You claim in point 2 that
“if the prices for such development rights are low, that implies
demand for them is low,” and thus no outside market forces would
want them. That is patently false, as real estate conglomerates
across the country have shown. Surely you have heard the mantra, “buy
low, sell high”? Surely, too, you have looked into the property
development of gentrifying city neighborhoods, wherein capitalists
from small-scale (me, purchasing a house) to medium-scale (local
property developers/flippers) to large scale (national real-estate
consortiums) have done just exactly what you claim can not logically happen.
If you don’t think that capitalists with extra capital wouldn’t buy
property to hold, then please offer actual evidence from gentrifying
(or other) neighborhoods. I’ve got plenty of evidence that refutes
your belief. Otherwise, I think you are misunderstanding or
mis-representing how the real estate process works.
(3)
Your claims about who you want to empower have shifted. You initially
claimed:”Tradable rights would be better because it would allow
people (through developers, effectively) to bid for rights to build
which are currently kept off the market.” Later, you take
that statement back, saying that you do not want to empower
developers (who history suggests will aggregate land/rights). Which
is it? How does one create a market whereby people are expected to
engage with developers regarding property rights…in a way that does
not overly empower developers?
Surely you are aware
that even if you start with granting homeowners ‘development rights’
in decade one, that much of those rights will be traded away in
decade two to the developers that I have fingered as being
empowered–and who you ideally want to dominate those tradeable
markets. Or are you not stating that? It’s hard to tell; I’ve seen no
real-world applications of your thesis.
(4) Of course,
let’s also ask the question: who can be expected to trade away their
granted rights? Will it be the capital-rich connected class that you
claim to want to disrupt, or will it be the working-class residents
who need extra cash for college, food, gas, a new car, health care?
You seem to claim that it will be those residing in wealthy
neighborhoods who, in a bid to make a little extra money, will allow
a high-rise to be built next to them (or their neighbor down the
block). THat seems like specious logic.
(5) The
well-documented history in my state shows the lie to your assertions.
My state’s history clearly shows that it will be the disadvantaged,
less-capitalized, residents who will sign away their rights to
niche-industry actors (in EKY’s case, coal companies). ANd here, it’s
important to state that your characterization of broad form deed is
flat out wrong. The state did not grant coal companies the right to
buy mineral rights. In your language, the state say was not granting mercantile rights to particular industries (which is
what happens, say, when my city grants Kentucky American Water, a
for-profit multi-national company, the water rights for our entire
city).
What my state did was grant property owners the
right to own and sell the minerals underneath their ground. This is
exactly what you are proposing, complete with language (as in my
state’s failed broad-form deed proposals) proclaiming that property
owners must be protected. In Kentucky under broad form, large-scale,
out-of-state (mostly) land corporations were able to purchase those
rights under duplicitous and coerced means. In part because the legal
arena had shifted from local to state control, land-owners were
completely screwed. I should also point out that land corporations
accumulated a monopoly on mineral rights over several decades in
specific geographically constrained areas. It was a methodic,
landowner-by-landowner way, and you can read the results in the many
poverty, environmental, and health reports of the region.
Take
a look at the region. It’s important to point out that, again contra
to your assertion about how the real estate market works, these
“rights” purchases occurred exclusively in “under-demand”
locations. They were in the rural equivalent of urban
slums–decidedly not in the up-income areas that your statements
would have us understand changes would take place. The “rights”
were sold to a highly specialized group with highly specialized
(environmentally, socially, and economically damaging) needs.
Here’s
the other big thing about the “rights/land” divide in my
state: like your statements claiming empowerment of homeowners, the
broad form deed only “empowered” homeowners who sold to
land corporations. And this monetary compensation was very small
because, as you state, demand for purchase in EKY in 1930 was very
small, which meant the compensation was also very small (unlike
high-wealth areas). Good for capitalist land-corporations; bad for
long-term homeowners. o too do the non-landowning residents
suffer–as the large percentages of urban non-landowners can be
expected to suffer under this market-first idea.
But
there’s more: These market/rights choices also have a future. Along
with the results of the private land corporations’ development
(mountain top removal, strip mining, polluted rivers, etc.), this
fact of having a separated land/land rights severely depresses land
value going forward. Also suffering are the homeowners who did not
sell their land-rights, but who must live with the consequences of
their owners who have sold. You state that these non-sellers will be
safe–or compensated–but who sets that compensation? Trump, LLC? My
reading of history and current events suggests an answer to who will
lose out on that monetary determination (and it aint Trump,
LLC).
This leads me to…
(6) Again, give me an
example where your proposal works. I don’t mean saying, “you
misunderstand me” when I show you examples of the disastrous
effects of your idea in the real world. You claim that any
development would need to pay for its impacts. How?
So, I
have a Jif factory that sits 1 mile from me. It uses tons of water,
it makes my neighborhood stink, its factory increases run-off. (It’s
also a good source of community employment, but in your ‘homeowner
rights’ world such community goods don’t compute.) How exactly will
private development rights enforce Jif to pay for that? There are,
literally, 6,000 people in that area. Does Jif give each home $10
that has the “right” of clean water or
non-peanut-butter-smelling air? Does JIF pay the high-wealth
residents to the east of its factory more than the low-wealth
residents to its west? If JIF grows, will I get another 50 cents for
traffic rights? What about my neighbors 10 miles away–still in my
county–who get depleted water services because JIF takes so much
water to make peanut butter? Are they–and the 100,000 people around
them–in the zone of development-right protection? (Going back to
Eastern Kentucky as a historical example with defined legally binding
precedents, those farther neighbors have no rights, even though they
are also effected.)
What if the previous homeowners of my
home sold their development rights for traffic to Trump, LLC in 1993
for $500? What recourse do I have? If I know I don’t have that
traffic right, doesn’t that diminish the value of my house relative
to my neighbor, who didn’t sell those rights (he had a job in 1993; I
didn’t and needed to sell)? In Eastern Kentucky, many homeowners are
unable to determine what mineral rights they own. Do you propose
another government beuracracy to keep track of the sold/held
rights?
(7) In fact, what do development rights mean? In place
of a single (if compromised) zoning, do you imagine that I will be
endowed with a basket-full of rights that I can hold or sell? Traffic
rights? Water run-off rights? Air pollution rights? Shadow rights?
Dancing rights? High building-near-me rights? Can I sell these off
one-at-a-time to different development companies (a generic
“high-rise-rights” LLC, a ‘water run-off rights” LLC,
a “traffic-rights” LLC? WIll these be packaged together as
CDOs? Combined with the rights from other cities? Sold on the New
York Stock Exchange? Do I stop going to city hall with my greivances,
and instead travel to Manhattan to air my concerns about the
development of some homes down the block in my Kentucky city?
This
all seems like a terribly inefficient way to do development, one that
is highly profitable, open to monopoly formation, and not at all
engaging what it claims to want to solve.
(8) It is
misleading to the point of a falsehood to equate, say, 200,000 acres
of finite county land with “iron atoms.” First, iron atoms
are many many many degrees more abundant than any county’s land (and
nobody lives on them). Second, unlike county land, iron atoms (or
carbon/coal atoms) can deplete from a landscape, which forces a
transformation of an economy. County land, unlike iron atoms, does not deplete.
Urban
land is also not “mostly undeveloped,” particularly in
urban counties upon which you are making your claims. All urban land
is claimed, and a significant portion is developed; my small city is
30% developed…hardly the “very small fraction” you
claim…presumably as a way to suggest an elastic–unending?–growth
to the market. I’d guess that most cities have a more developed
land-footprint than the figure I threw out. Again, nowhere close to
to “very small fraction” you cite. Of course, neither can
land go infinitely upward into the sky, as you also misleadingly
state. Your proposal creates a limited market that is
pre-dispositioned to benefit those with the capital to buy into it
(or those who had the capital to already buy into it).
Maybe
I’m missing–as you keep telling me–your idea. So tell me how it
practically works. Apparently, getting rid of zoning will not involve
granting the right of development to mercantile organizations, though
it will be directly tied (ideally) to development corporations
mediating the private market. It will be a spur to private
development in high-wealth areas, because wealthy residents–who do
not need the excess money–will freely choose to be compensated for
the right to have developers build high-rise apartments in their
backyards (or the backyards of their neighbors). It will limit
development in poor/low income areas by granting the very small
number of homeowners, in apparent solidarity with the high percentage
of absentee landowners, the ability to get a good price for the right
to build high rises (or polluting factories) in their neihborhoods
filled with non-homeowning renters—who will agree with the private
needs of the area’s homeowners present and absent. It will make the
development of neighborhoods more efficient by substituting zoning
codes for a potentially infinite basket of “development rights”
(shadows, air, noise, traffic, commercial, industrial, etc.) to
people who own property (but nobody else), which I guess will
eventually be sold on a national or global financial market that will
(unlike any other market around these days) be transparent and
accountable to individual neighborhoods.
Such land
development rights will not, apparently (or maybe they will), be
granted by the local or state or federal governments, but will come
from…where exactly?
aplofar says
December 18, 2016 at 4:04 am(Preamble: it was my understanding that the crucial problem with the broad form deeds was that they were, effectively, retroactively reinterpreted by the courts/legislatures, so that open-pit and mountaintop-removal technologies that were not assumed or named when the deeds were signed, were upheld as legal. Effectively, that the property owners had signed deeds *assuming* they were permitting just shaft and slope coal mining, but that the contracts were enforced by the states as permitting much more disruptive methods, and that suits claiming damages (i.e. to water sources) were dismissed under similarly iffy legal reasoning. I may be wrong about this, but that was my understanding. Secondly, when I referred to “land is limited like iron atoms”, what I mean is that just because a good is ultimately limited in some material way does not mean that there shouldn’t be markets in it, and that as long as there is choice between competing alternatives, I am skeptical of calling it a monopoly. Just because someone owns a city block does not make them a monopolist of anything, and the fact that cities can expand into a huge number of places they currently do not exist seems to indicate that supply of land is not a strongly binding factor of production.)
Alright, let’s back up a bit, and I’ll start with some of the principles and categories I’m working off here – so you can see where I’m coming from.
Firstly, why zone and plan at all? Well, there’s two big reasons usually given:
A) To prevent the production of externalities – especially “unanticipated” ones. So, keep the polluting factories away from houses, keep tall buildings out of low-rise areas, require bars to be a certain distance from residences, and so forth.
B) To optimize economic/social outcomes (as determined by the planners) – like in the article, when it is decided that particular activities are not needed, or that some kinds of buildings/activities/lifestyles are pernicious and should be removed, or alternatively, that they are good and should be promoted.
(Of course, the tools generally created for the purpose of carrying out goal A) are frequently used for goal B), and the two goals often are mixed together, both practically and rhetorically. But we’ll leave this aside for now.)
I am extremely skeptical of the ability of the government to successfully execute goal B), especially in a fair or rights-respecting way. I observe that when planners get the idea that something or somebody needs to be moved or reformed, it rarely goes well or does anything good. This contributes to my overall position that paternalistic planning is usually a bad idea, and doesn’t achieve even goals that might be thought of as good.
But what I’m really interested in is goal A) – preventing externalities. This is certainly something important, but I’m not convinced that zoning does a very good job of it – and almost by definition, zoning is done by the planners/the government, and while the individual may have some say through the democratic process that is supposed to govern the planners, generally the planning institution can do what it likes.
Let’s consider two situations. Somebody buys a house, and all around, the area is zoned for residential use. This is reflected in the price of the house, of course, and in the expected future value to the buyer. It is the current “plan”, both officially and of the buyer. Now, let’s say the planner decides that actually, the area next door should be rezoned for manufacturing, and some large factories move in and make a lot of noise and pollution. This is an externality onto the homeowner – in effect, a “taking” of some fraction of the home’s value (both as current value in use, and future value in sale.) It also represents a “giving” to whomever is opening the factory. The planning system makes this sort of thing perfectly legal and legitimate – if the planning body decides to do something that imposes real costs on you, you can’t really do much about it.
Now another situation. Somebody owns a house, and they find out that their neighbours have been renting out rooms in their house to short-term tenants, which is currently legal. The homeowners don’t like this (maybe because of noise, or whatever) and they go to the planners and make a political fuss. So, the zoning is changed to forbid this kind of activity. This again represents a “taking” from those landlords and tenants leasing out, and a “giving” to the homeowners. What this means is that zoning takes on a very capricious character, where many people are given the rights to certain things they want at little or no cost, and other costs are imposed on people at no compensation.
Now, so far this is only talking about *changes* in zoning: if all zoning was static or nearly so, and everybody knew what they could expect, then presumably things would be fine. But there’s still problems, because other changes are constant – people move, cities grow or shrink, economies change, and so forth. This involves a lot of negotiation, purchase and sale, and re-valuation of many things. What zoning does is it makes large categories of negotiation either impossible or it makes such negotiation happen on a bureaucratic level that is far above, and has little to do with, the actual individual interests involved.
What I am asserting is that this inhibition of negotiation advantages the well-off and politically influential, and disadvantages the poorest and politically ignored. When Person A, who has the ear of politicians, goes to their municipal representatives and says “tell the planners that I don’t like the idea of apartments in my nice neighbourhood”, and maintains the zoning that ensures their wishes, they’re getting that desired thing for free – others are prohibited from even negotiating the *possibility* of compensation for the impacts of apartments, at no cost to Person A. A sort of “taking” has been made of the people who might have wanted the things now forbidden, and a “giving” has been granted to Person A. Or, when Person B notices that their neighbourhood is changing, and becoming much more expensive than they can afford, they may ask the planners “why can’t we allow housing growth all over the city, so it doesn’t all come to my neighbourhood”, but they have no political pull, so they face the increased costs, without being able to get any compensation.
That’s my basic point about zoning – that it allows the politically influential to have the city the way they like it for an artificially low personal cost, and causes the politically non-influential to experience impacts with artificially low personal compensation. In particular, I see zoning as being substantially used to permanently shut out new development from wealthy neighbourhoods (shunting this demand elsewhere, and cramping overall supply), and to make arbitrary changes to poor neighbourhoods, which impose costs on the residents.
The reason I would like to see markets in certain impact rights is simply as an alternative to planning them through zoning. I think that, for example, it is reasonable that if a property owner would like to build a taller structure than currently allowed, and they negotiate a price with all adjacent owners (or all who would be affected, for example by shadows), then it is reasonable to allow the structure to be built. You can extend this to many other “external impacts” which we currently try to manage with zoning.
Of course, there are limits to this. You always have to decide on what does and does not count as an impact or a property right. Air pollution, for example, may often be too complicated to administer in this way, because of how mobile and dispersed it is. But let’s not go too far, and think that just because there are many property owners affected by something, that it’s impossible and has to be planned by government. I’m reminded of the old objection to toll roads – “if everybody owned the road in front of their house, there’d be a toll booth every twenty feet! Therefore toll roads won’t work.” Obviously, there are many different ownership models for these kinds of “club goods” which do not involve huge municipal planning bodies, which is the reason we have things like condominiums and cooperatives. There’s a good debate to be had on *what* things should be tradable, but I am frustrated by the tendency among planners (in whose academic world I moved for a long time) to assume that zoning and planning should cover everything that it currently does, and probably much more.
Simply, I would like many more cross-property impact effects to be negotiable, and I think that zoning is a poor way to handle many of the things of this nature that it currently does. I think that zoning generally raises the bargaining position of the best-off, and lowers the bargaining position of the worst-off. I think that planners’ claims of being “democratically representative”, or of being “voices for the voiceless”, are pretty much without merit – not due to a flaw in the planners as people, but in the nature of the job and the institution (that is, where the existence of strong political authority over something typically enhances the position of the already-well-positioned.)