Should Neighbors Be Able to "Sell" Some of Their Zoning Protections to Developers?
Image Source: Sean Benesh on Unsplash
If you asked a group of neighbors how they would feel about one of their houses being replaced with, say, a four-unit condominium, you could probably expect most responses to be quite negative. Indeed, we often hear stories of residents opposing efforts to build new housing near their homes and backyards. This has led to many suggestions to reform zoning, often by having states curb the ability of municipalities (and their current residents) to exclude new, and different kinds, of housing.
What if instead of shifting power from municipalities up to the state level some control over zoning was shifted “downward” to the neighbors of proposed developments?
The persistence and strength of what is so frequently referred pejoratively as “NIMBYism” make it imperative that this long-standing phenomenon be properly understood and addressed. Often those derided as NIMBYs are just people concerned about the well-being of their families, homes, and communities. Further, those who are homeowners can reasonably see themselves as having bought and paid for their neighborhoods’ current conditions—and the zoning that purports to protect them—through the prices paid for their homes, the property taxes they pay every quarter, and the limitations that zoning places on the use of their own properties.
Yet, when zoning relief is granted to allow new residential development, the resulting value is realized almost entirely by the builders and the new residents it brings to the neighborhood. In contrast, existing residents often expect (realistically or not) reduced property values and diminished enjoyment of their homes and neighborhoods. In many cases their concern should not simply be dismissed as a product of selfishness, fear of change, hatred, or some combination thereof but instead understood as a rational response to anticipated uncompensated losses.
Therefore, the question we should be asking should not be why don’t homeowners support such changes but, rather, why would they? Conventional economic thinking and common sense suggest that neighbors might accept, or at least not oppose, new development nearby if they were compensated for their expected losses.
LAZRs and Local Knowledge
Toward that end, a productive and realistic response to NIMBYism could be to empower neighbors to waive or “sell” some of the zoning protections they currently enjoy to builders, and to do so in exchange for bargained-for compensation, such as cash payments, site improvements, reciprocal waivers, and/or other negotiated benefits. Such "Locally Alienable Zoning Regulations" (LAZRs) could include zoning rules with debatable connections to the public welfare, including those that primarily protect property values by limiting the housing supply, serve purely aesthetic purposes, and, obviously, those that have exclusionary effects. Since most non-conforming land uses tend to affect rather small areas, the ability to waive such zoning rules could be limited to the neighbors who usually have legal standing to challenge zoning decisions (in Massachusetts, for example, generally neighbors within three hundred feet of a proposed project).
While the implications of such a departure from current zoning practices might seem daunting, LAZR mechanisms would not replace or eliminate any current zoning regulations. LAZRs could simply supplement existing zoning procedures with a voluntary parallel approval system for residential development (as well as, perhaps, neighborhood retail and other appropriate uses). In the absence of an agreement with neighbors, a builder could still pursue required zoning relief through the usual public review process. Even where a builder and neighbors do make a deal, a municipality could still require a project to go through that process to protect important governmental interests, such as protecting public health, safety and infrastructure; addressing environmental concerns; and/or preserving historic resources.
Ironically, giving neighbors more control over nearby land use and, importantly, giving them something to sell, could reduce NIMBYism by increasing fairness for affected neighbors and creating real incentives for them to accept denser development. It could also enhance neighborhood stability by encouraging existing residents to remain in evolving areas and creating opportunities for strategic cooperation where one property’s improvement could benefit neighboring properties.
Image source: Sean Benesh on Unsplash
Some might fear that implementing LAZR mechanisms would increase already high per-unit housing prices by enabling existing residents to extract exorbitant compensation from builders. However, it would likely have the opposite effect since vastly increasing the supply of sites potentially available for multifamily dwellings and creating myriad neighbor groups competing for builder-provided benefits should keep compensation levels reasonable.
LAZRs could free metropolitan areas from many of zoning’s more pernicious flaws as they would provide a needed check on excessive and exclusionary municipal-level zoning practices. This, in turn, should allow cities and suburbs alike to gain additional needed housing and again grow incrementally, guided by the spontaneous activity of innumerable people, responsive to ever-changing market demands and local social, economic, and environmental conditions. Significantly, it could do so without the direct expenditure of governmental fiscal resources or increased state involvement in what has traditionally been an intensely local area of concern, all while simultaneously allowing landowners fuller enjoyment of property rights and protecting the interests of the neighbors most directly affected by neighborhood change.
Ultimately, the adoption of LAZR mechanisms would be a recognition that much of what was lost in the 20th-century’s impulse to impose government regulation on land use was the societal benefit of the application of “local knowledge” (or, as Jane Jacobs called it, “locality knowledge”) on metropolitan development. By harnessing such knowledge, the LAZR mechanism would be a “radically traditional” approach to addressing problematic NIMBYism consistent with the principle of subsidiarity’s impulse to delegate authority to the smallest jurisdictional unit competent to exercise it.
Recall the expected responses of those same homeowners who today would likely oppose a four-unit condominium being built next door. Now imagine if they could enjoy some direct tangible benefits and, maybe, use their own properties in a similar way someday—you can probably imagine some responses different than the ones you would hear today.
About the Author
Dr. Michael Gleba’s professional, research, and teaching interests include zoning, land use, and public policy. He earned a Ph.D. in Law & Public Policy at Northeastern University where he is an adjunct professor. He previously studied at Manhattan College, Columbia University and Boston College Law School. Michael's 2018 dissertation, “Making Zoning Alienable: Property Rights, NIMBYism and Urban Growth,” explores allowing property owners to "sell” certain zoning protections in exchange for negotiated compensation from project proponents seeking to develop neighboring properties. A member of the Massachusetts Bar, Michael has represented private and public sector clients and has held roles in state and local government. He currently works on land use, zoning, and development review issues for a municipality in the Boston metropolitan area.
Americans need housing relief imminently. Despite what you may have heard, upzoning isn’t likely to be the thing that delivers that—but here's why it’s still worth pursuing.