There's Nothing Especially Democratic about Local Control of Land Use

Rescuing delegated state authority from homevoter regulatory capture is a win for democracy

California Senate Bill 50, legislation developed by Scott Weiner, a pro-housing state senator, would have made it easier for developers to build new, dense housing near mass transit. Despite several major revisions, SB 50 failed to clear the senate after multiple attempts at passage.

According to the Los Angeles Times, SB50 flopped in Sacramento the first time (2019) because “an influential cohort with membership across the state opposed the measure with all its political might: suburban homeowners.” No surprise there! Those are the powerful “homevoters” I discussed in my last post.

So how did their spokespeople characterize their mission? From the LA Times:

“There is a wake-up call that our legislators are not representing people at the grass-roots level,” said Susan Kirsch, an activist from Mill Valley and head of Livable California, a slow growth organization. “We were very concerned about decisions being made further and further away from people who have to live with the consequences of them.” 

Slow growth organization. Gotta love it.

Anyway, what’s Kirsch’s alleged beef here? First, that state legislators have failed to represent their constituents at the “grass-roots.” Second, that removing decision-making authority to a larger, higher-level jurisdiction risks harming the “people who have to live with the consequences” of its decisions.

For his part, Bill Brand, the mayor of Redondo Beach, argued that state legislators are incompetent to weigh in on land use because they lack local knowledge.

“For the state to come down and say we’re going to take away your ability to control what happens in your town is misguided,” Brand said. “They don’t know what they’re doing.”

He then goes on to say something very revealing:

“Why should we have city councils if we can’t control the type of development we have in our town?” he said. “We should just dissolve the city and let [the state] handle it.”

Brand frankly suggests that the whole point of local government is to control land use on behalf of locals, testifying to the credibility of Fischel’s homevoter hypothesis.

Kirsch and Brand may be rationalizing their personal interests, but their complaints about loosening local control echo principled ideological commentators. University of Louisville political scientist David Imbroscio, a vehement left-wing critic of YIMBYism (he calls it “anti-exclusionary zoning” or “anti-EZ”) argues that loosening local control over land use amounts to a “neoliberal” assault on democracy:

[T]he Anti-EZ cure is worse—much worse, in fact—than the EZ disease.

Why? My argument boils down to this: The Anti-EZ Project seeks to usurp governmental (regulatory) control of local land use via the imposition of greater market-based allocation (sometimes called “neoliberalism”). And it does so especially by weakening the ability of inhabitants to determine democratically how urbanized spaces are “produced” (as embodied by the Right to the City ideal asserting “that everyone … not only has a right to the city, but as inhabitants, have a right to shape … design … and operationalize an urban human rights agenda [around these spaces]).”

Imbroscio is writing here of the Biden campaign’s relatively anodyne proposal to discourage exclusive single-family zoning by endorsing James Clyburn and Cory Booker’s plan to condition HUD and DOT state block grants on the implementation of policies to increase housing supply and reduce housing costs. This would include things like allowing the construction of duplexes and/or fourplexes in areas that currently allow nothing but single-family homes.

It is flatly incorrect to suggest, as Imbroscio does, that rezoning exclusively single-family neighborhoods to permit duplexes or fourplexes would make the allocation of housing either more or less market-based. The housing market is comprehensively structured by zoning — by local government. Allowing duplexes alongside single-family homes does nothing at all to change that. It simply changes the mix of housing likely to get built, bought, and rented by very slightly changing the structure of the thoroughly government-managed market. Upzoning is not unzoning.

Similarly, if states hungry for federal block grants lean on cities to legalize multifamily housing in areas that currently ban everything but detached single-family houses, that doesn’t displace governmental regulatory control in favor of market allocation. Local land-use power just is delegated state power. If a state legislature chooses to narrow the scope of that delegated authority as part of an effort to influence patterns of municipal land use in a more direct, less mediated way, that doesn’t weaken or displace “governmental regulatory control” in the least. To state the obvious, federal and state governments are governments.

But does a state legislature’s decision to slightly limit the scope of local discretion really amount to “weakening the ability of inhabitants to determine democratically how urbanized spaces are ‘produced’,” as Imbroscio claims? That’s the big question.

Or, to ask the same question from a wildly different ideological perspective, does a nudge from states governments responding to federal incentives amount to an outrageous affront to America’s federalist values? National Review’s Stanley Kurtz argued as much (and rather dramatically!) during the presidential campaign:

With AFFH [Affirmatively Furthering Fair Housing — i.e., actually enforcing federal law as laid down in the Federal Housing Act of 1968] restored to its original form by a President Biden, enforced to the hilt, and turbo-charged by the Booker strategy, suburbs as we know them will pass from the scene.

With them will disappear the principle of local control that has been the key to American exceptionalism from the start. Since the Pilgrims first landed, our story has been of a people who chose how and where to live, and who governed themselves when they got there. Self-government in a layered federalist system allowing for local control right down to the township is what made America great. If Biden and the Democrats win, that key to our greatness could easily go by the boards.

Vehement opposition to weakening local control of zoning evidently comes in a range of ideological flavors. Despite their differences in rhetoric, emphasis, and motivation, Imbroscio and Kurtz aren’t really saying fundamentally different things. They both suggest that maximum local control over zoning is a requirement of popular sovereignty. (It doesn’t really matter whether you call it “democratic” or “republican.”) They both imply that even partial abrogation of local control cannot be justified by our constitutive political ideals of collective self-rule. Susan Kirsch and Bill Brand are also advancing versions of the same claim. Are they right?

Well, no.

First consider Kirsch’s claim that “our [state] legislators are not representing people at the grass-roots level.” The implied argument is that city councils and local zoning boards represent local residents better than the state legislatures. But how well do local governments and planning boards actually represent the people of their communities? Not very well, it turns out.

Boston University political scientists Katherine Levine Einstein, David M. Glick, and Maxwell Palmer, authors of Neighborhood Defenders: Participatory Politics and America's Housing Crisis, combed through records of thousands of Massachusetts public planning committee meetings to see who participated in the process and who didn’t. Here’s what they found:

[L]ocal institutions, designed to enhance participation, actually empower an unrepresentative group of residents — who we call neighborhood defenders — to stop the construction of new housing.”

Compared to all local voters, commenters at public development meetings were considerably whiter, older, more male and much more likely to be homeowners.

Because voters are already older, whiter, and more likely to own homes than the general population, comparing commenters to voters understates the difference between commenters and the overall local population.

Participants are not representative of their communities, and they are generally more socioeconomically privileged than those who do not attend. This pattern is true both across towns — we see higher levels of participation in wealthier towns than poorer towns — but also within towns.

It should come as no surprise that a commanding majority of public comments opposed proposed developments. 62 percent of all comments were negative, 24 percent were neutral, and a mere 15 percent were positive. Einstein, Glick and Palmer did not find a single city or town in Massachusetts where positive comments exceeded 50 percent. Commenters from underrepresented groups were considerably more likely to comment favorably on projects, though their comments were still mostly negative.

They also find that commenters at public meetings tend to live very near the proposed developments under consideration:

Eighty-two percent of commenters live in the same census tract — a rough measure of neighborhood — as the housing development. Additionally, 41 percent of commenters live in the same census block as the development. This is remarkable; census blocks are the smallest unit of census geography, and generally correspond to areas enclosed by single street blocks. Nearly half of all commenters live on the same block as proposed developments. These data reveal that — as anticipated — community meetings are dominated by neighborhood defenders — that is, individuals from the immediate surroundings. The wider community, in contrast, is barely represented.

The process is dominated by pretty literal NIMBYism. Among other things, this tends to push development into poorer, less white neighborhoods where participation in public meetings is less likely and resistance to proposed projects is less stiff. This often leads to gentrification and the displacement of long-time residents who get priced out of the neighborhood.

Fear of gentrification and displacement is a major reason that input from poorer renters at planning meetings, though less negative than that of wealthier homeowners, is nevertheless more likely than not to express opposition to new development. They would benefit from a general increase in local housing supply, which would help hold their rents down, but new development in their backyard can easily lead to a big increase in rent.

Poorer renters might not need to oppose a gentrifying new condo or apartment complex if wealthier homevoters hadn’t chased it out of their neighborhood first. When a project is being considered for a posher part of town, that’s when poorer renters really need to show up to defend their interests. But how are you supposed to know about a proposed development in some wealthy neighborhood? How are you supposed know that there’s a good chance that it will end up in your neighborhood if it’s rejected elsewhere?

In Hometown Inequality: Race, Class and Representation in American Local Politics, Brian Schaffner, Jesse Rhodes, Raymond La Raja measure the degree to which municipal government represents the ideological cast of its population. The picture that emerges from their work is also bad news for the view that local government is especially representative of the local population:

Whites and wealthier people receive substantially more ideological representation both from local government officials and from municipal policy outputs than do nonwhites and less wealthy individuals. The inequities in representation we identify are frequently shocking in their magnitude. For example, we find that it is only when blacks make up 80–100 percent of the community population that they receive the same amount of ideological representation from elected officials on municipal councils that whites attain when they represent only 20–40 percent of the population.

If you’re white and relatively wealthy, local government represents you pretty well. As Jessica Trounstine shows in Segregation by Design: Local Politic and Inequality in American Cities, this is both a cause and effect of the residential segregation zoning codes were written to enforce. Cities and independent suburbs are jurisdictions for the provision of public goods such as sewer systems, roads, schools, and police protection as well as public amenities such as parks and swimming pools. Supplying these goods and amenities is the primary function of local governments. The quality of these goods and amenities directly affect real estate prices. At the same time, property taxes are traditionally the largest single source of municipal revenue (other than transfers from the state government).

The fiscal interests of cities therefore align with the financial interests of property owners in rising property values. Because the quality of public goods and amenities is capitalized into housing prices, homeowners prefer higher to lower quality in public services. At the same time, homeowners prefer lower property tax rates. One way to prop up property values though high-quality public goods without paying exceedingly high property tax rates is to concentrate spending on high-quality services near wealthier homeowners while providing them at lower quality for renters and poorer homeowners.

But this is impossible if these populations are mixed in together. To gerrymander the quality of public goods, each population needs to be clustered together and separated in space. Because proximity to poorer populations is bad for property values anyway, the motivation of wealthier homeowners to keep their neighborhoods uniformly higher-class is overdetermined. Segregation allows them to focus public spending on themselves (they’re paying for most of it, after all!) and leave those on the “other side of the tracks” with rusty water, overflowing sewers and self-patched potholes.

But you can’t control property tax rates and the allocation of public goods if you don’t control local government. Without control of zoning and the land-use decision-making process, it’s impossible to defend wealthier neighborhoods against multifamily development that attracts undesirable elements. It’s sort of obvious why homevoters would be driven to capture the land use process. It’s less obvious why they’re driven to control municipal budgets, but it’s all part of the same package. That’s why local government without total control over zoning seems pointless to the Mayor of Redondo Beach. He understands what — or who — local government is for.

For the time being, I’m not emphasizing the explicitly racist purpose and history of zoning-driven segregation because I want to focus attention on the fact that the economic and political incentives that animate homevoters needn’t have anything to do with race. Suffice it to say, for now, that there’s a reason [gestures broadly at the soon-to-be-illegal history of the United States] that white Americans have historically had, and continue to have, more wealth and higher homeownership rates than other groups, supplying us with both the motive and the means to dominate local government and make it work for us. The politics of land use seems so intractable, in my opinion, because America’s history of white supremacy supplies the cultural and institutional context of independently powerful homevoter incentives.

Anyway, the point is that local government does a pretty terrible job representing the whole community because it’s dominated by a factional interest — wealthy white homeowners — often at odds with the public interest.

Let’s return to Imbroscio’s claim that slightly limiting local control over zoning amounts to “weakening the ability of inhabitants to determine democratically how urbanized spaces are ‘produced’” When the ability of non-white residents to determine anything democratically is so weak to begin with, it’s hard to see how a state legislature adjusting the scope of local land use authority makes it worse.

Indeed, it may well improve representation. (I’m looking into this.) In the majority-Democrat states currently suffering the most from astronomical housing prices, state legislative districts are generally drawn to guarantee roughly proportional “descriptive” representation. That is to say, district lines tend to be carefully drawn to ensure majority-minority Black and Hispanic (maybe Asian, too, these days?) districts. It’s ironic that our history of segregation makes this easy to do. But then again, that history is why descriptive representation is important. If our cities and suburbs were perfectly integrated, minorities would rarely form a majority anywhere, but that’s a world in which people probably don’t care about descriptive representation.

In any case, it’s not at all clear that state government isn’t more representative than local government. Moreover, in the U.S. turnout generally declines with jurisdictional size. That is to say, people are least motivated to participate in elections the closer they are to the level government. This belies romantic Tocquevillian views of active civic participation and self-rule. Anyway, turnout is usually higher in state elections than in local elections (and highest in national elections). As turnout declines, participation tends to get more disproportionately white with detectable effects for descriptive representation and the alignment of policy with minority preferences. This is one reason local government is so unrepresentative and a reason to suspect that state government may do better.

I wanted to take on Kurtz’s hyperventilating take on federalism and the abolition of the suburbs in particular, but I want to get some general thoughts down here, so I’m going to give you something extremely abstract.

There’s very little to be said in favor of the idea that elected government somehow gains in democratic political authority as you descend jurisdictional levels simply because government is “closer to the people.” Government at all levels is in the business of solving collective action problems, supplying public goods, defining legal entitlements and obligations, and regulating private and commercial activity in an effort to keep it aligned with the public interest.

Some goods, such as social insurance or national defense, can’t be as well-supplied at lower levels. Other goods, such as education and, say, sewer systems, can’t be as well supplied at higher levels. Similarly, municipalities are competent to effectively regulate local small business, but may not be able to effectively exercise authority over a huge multinational corporation. Authority ought to be allocated to the level — or combination of levels — best suited to the job. Lower levels can’t have more authority than higher levels as a general matter, as romantic conceptions of federalist subsidiarity sometimes suggest, because lower-level jurisdictions are agents in the collective action problems higher-level jurisdictions need to solve. E.g., Social Security can’t work if the federal government doesn’t have the power to reach into every jurisdiction to finance it — if, say, Texas can simply declare that its residents don’t owe federal payroll tax.

But there is no reason to think that it is possible or desirable to assign one and only jurisdictional level to each type of public good or domain of regulation. Sometimes a good is best provided at a lower level, but providing it involves solving a collective action the lower-level jurisdiction can’t handle without a higher-level assist. Similarly, regulation at any level can be captured by special interests. Sometimes the best solution is to shift or share regulatory authority to/with a level of government that has not been captured.

That’s how I see local control over land use. Because it does require detailed local knowledge, it is generally best to regulate it primarily at the local land. But local land use decisions can have non-local effects. For example, siting a dirty factory on a river can have environmental effects far downstream. A higher-level jurisdiction may need to step in to protect extra-local, downstream interests. Likewise, local regulatory authority can get captured by special interests. Maybe that’s how the factory got its riverside permit! If capture of local regulatory authority prevents local government from acting in the public interest or causes its authority to be consistently exercised in a way that creates compounding local and extra-local harm, the state must step in, reclaim some of its delegated but misused authority and redefine the terms on which localities can use it. This isn’t a violation of federalist ideals. On the contrary, the capacity to limit the damage when one level of government abuses power or otherwise botches its job is perhaps the most valuable features of federal systems.

The point of a state delegating authority to municipalities is that they’re likely to exercise it more effectively than the state can. That’s what underwrites the legitimacy of their claim to that authority. If municipalities can’t use delegated state authority more effectively than the state, then they shouldn’t have it — at least not all of it. If a state were to mandate by-right ADUs, legalize duplexes in neighborhoods of single-family dwellings, or weaken local authority to block dense development near mass transit, local governments would nevertheless retain most of their delegated state authority over land use. Insofar as local government and the land use regulatory process have been captured by an unrepresentative group of homevoters and the state legislature has not, this sort of moderate reallocation of authority makes local land use politics more not less democratic — and embodies federalist ideals of shared power and mutual regulation, too!

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