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Yes in God’s backyard… and yes up to three stories?

With state legislative seasons in full swing, a picture of the landscape of land use reform is emerging. One dynamic I’ve been tracking: Yes In God’s Back Yard (YIGBY) bills, designed to allow religious organizations (and sometimes other nonprofits) to easily use their land to build housing, are still in vogue with lawmakers. Salim Furth and I predicted last year that this year would be a key test for this policy area. While it would be a mistake to expect YIGBY to solve the housing crisis on its own, these bills can broaden the housing abundance coalition and let reluctant state lawmakers take a first step into preemption of local zoning ordinances. So far, YIGBY bills have been proposed in Arizona, Colorado, Kentucky, Massachusetts, New York, Texas, Virginia, and Washington state. In fact, this year’s bills seem to be converging on (at least part of) the framework for YIGBY legislation that Furth and I proposed. Our framework would let organizations build to a specified development intensity everywhere, as well as to the development intensity of the surrounding neighborhood if it’s denser than that base density. Arizona’s HB 2191, for instance, specifies: B. The height requirements for an allowed use development on an eligible site must meet one of the following: 1. Be not more than thirty-eight feet and three full floors. 2. Be the maximum height allowable by the current municipal zoning regulations for retail, office, residential or mixed use. 3. be not more than the height of a previously existing structure on the eligible site. 4. be not more than the height of any existing building within one-fourth mile of the eligible site, except for buildings developed pursuant to this section. Clauses C and D set similar limits for setbacks and maximum lot coverage, followed by (emphasis mine): E. […]

Morton’s Fork and urbanism

I recently read about an interesting logical fallacy: the Morton’s fork fallacy, in which a conclusion “is drawn in several different ways that contradict each other.” The original “Morton” was a medieval tax collector who, according to legend, believed that someone who spent lavishly you were rich and could afford higher taxes, but that someone who spent less lavishly had lots of money saved and thus could also afford higher taxes. In other words, every conceivable set of facts leads to the same conclusion (that Morton’s victims needed to pay higher taxes). To put the arguments more concisely: heads I win, tails you lose. It seems to me that attacks on new housing based on affordability are somewhat similar. If housing is market-rate, some neighborhood activists will oppose it because it is not “affordable” and thus allegedly promotes gentrification. If housing is somewhat below market-rate, it is not “deeply affordable” and equally unnecessary. If housing is far below market-rate, neighbors may claim that it will attract poor people who will bring down property values. In other words, for housing opponents, housing is either too affordable or not affordable enough. Heads I win, tails you lose. Another example of Morton’s fork is the use of personal attacks against anyone who supports the new urbanism/smart growth movements (by which I mean walkable cities, public transit, or any sort of reform designed to make cities and suburbs less car-dominated). Smart growth supporters who live in suburbs or rural areas can be attacked as hypocrites: they preach that others should live in dense urban environments, yet they favor cars and sprawl for themselves. But if (like me) they live car-free in Manhattan, they can be ridiculed as eccentrics who do not appreciate the needs of suburbanites. Again, heads I win, tails you lose.

How much housing does Massachusetts build?

In a recent post, I revealed the 91 large cities and counties that consistently fail to report complete data to the federal Building Permit Survey (BPS). But what about smaller jurisdictions, which often have weak record-keeping and slim staffs – and what about states made up of many such small jurisdictions? The gold standard for counting housing units is the Decennial Census. That shows that the number of homes in Massachusetts grew from 2,622,000 in 2000 to 2,808,000 in 2010 to 2,998,000 in 2020. Even though building permits do not always result in completed homes, local reports and Census Bureau interpolations fall well short: It’s possible that some building permits pulled in 2007-2009 were delayed by the Great Recession but completed after the 2010 census. Taking the twenty-year period together, the BPS (2000-2019) is only picking up 84 percent of completed homes – not to mention those that are permitted but abandoned. Looking ahead, Gov. Healey’s administration has estimated (poorly) that the commonwealth needs 222,000 new homes by 2035. How does that compare to recent production? We don’t have a 2024 Census. But if we assume that reported 2015-2024 building permits turn into housing at the same rate that 2000-2019 building permits did, we can get a working estimate. The BPS reports 167,000 Bay State building permits from 2015 through 2024 (with extrapolation for December, 2024). That means that something closer to 199,000 new homes were likely completed in that period. If that’s true, then the administration’s “housing need” estimate is just 12% higher than recent construction – which has been inadequate to prevent a huge upswing in rents and prices.

Let’s Talk About Soundview

In New York City, one common argument against congestion pricing (or in fact, against any policy designed to further the interests of anyone outside an automobile) is that because outer borough residents are all car-dependent suburbanites, only Manhattanites would benefit. For example, film critic John Podhoretz tweeted: “Yeah, nothing easier that taking the subway from Soundview or Gravesend or Valley Stream.” Evidently, Podhoretz thinks these three areas are indistinguishable from the outer edges of suburbia: places where everyone drives everywhere. But let’s examine the facts. Soundview is a neighborhood in the Southeast Bronx, a little over 8 miles from my apartment in Midtown Manhattan near the northern edge of the congestion pricing zone. There are three 6 train subway stops in Soundview: Elder Avenue, Morrison Avenue, and St. Lawrence Avenue. Soundview zip codes include 10472 and 10473. In zip code 10472* only 25.7 percent of workers drove or carpooled to work according to 2023 census data; 59.6 percent use a bus or subway, and the rest use other modes (including walking, cycling, taxis and telecommuting). 10473, the southern half of Soundview, is a bit more car-oriented- but even there only 45 percent of workers drive alone or carpool. 41 percent of 10473 workers use public transit- still a pretty large minority by American standards, and more than any American city outside New York. In the two zip codes combined there are just 45,131 occupied housing units, and 24,094 (or 53 percent) don’t have a vehicle. In other words, not only do most Soundview residents not drive to work, most don’t even own a car. Gravesend, at the outer edge of Brooklyn over 12 miles from my apartment, is served by three subway stops on the F train alone: Avenue P, Avenue U and Avenue X. It is also served by […]

Neutralizing the Objector Lawsuit

Builders seeking approval for proposed real estate developments must in almost all American localities navigate a complex series of required procedural steps, but for those who persevere and succeed in obtaining a permit, one eleventh-hour device can bring all those efforts to naught: the objector lawsuit. Easy to file but difficult to resolve, lawsuits by development opponents even when unsuccessful can delay projects by a year or more, playing havoc with cost and time estimates. Why are these suits so simple to start? The American common law system sets a low bar for a plaintiff to establish a right to maintain a lawsuit — known as “standing” — in which the mere claim that an injury has occurred, or even may occur in the future, is sufficient to keep a case moving along. Recognizing plaintiffs’ interest in having their day in court and the prudential consideration of having claims decided on their merits, judges will rarely find an injury to be so minor, indirect or speculative that it’s not worth judicial attention. While these considerations are important, they were not formulated with the expectation that they would be used to thwart individual exercise of property rights and the ordinary activities of civilized life. Some may recall the 1972 Supreme Court case of Sierra Club v. Morton, where the Court narrowly (4-3) decided that an environmental organization couldn’t rely upon alleged injuries to nature, rather than to the organization itself, to establish its right to sue to stop a planned ski resort, and which resulted in a dissent by Justice Douglas arguing for “conferral of standing upon environmental objects to sue for their own preservation.” The holding was quickly a moot point, as environmental organizations and other entities opposed to development recognized that they could recruit individual members who could allege […]

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