Pretextual Planning is Absolutely Everywhere
It's a fairly common-sense part of good government that if you make a law or a regulation, it should be because you a) intend to enforce it and b) think it serves a valid, important purpose. But of course, real world government is rife with examples of this principle being violated. Often, lawmaking or regulation is "pretextual," meaning the real rationale for it is something other than the stated purpose. Pretextual rulemaking is regulating X as a back-door means to achieve Y.
This is a bad way to govern. It diminishes public faith in government—leading us to see the law as just another way the powerful get what they want instead of a source of equal protection for all. The use of false pretexts is a bad way to write the law, and it's also a bad way to enforce the law. (For example, the issue of pretextual traffic stops, where the supposed or actual traffic violation isn't the real point of the stop, has been in the public eye again lately for tragic reasons.)
Michael Manville, a professor of Urban Planning at UCLA, recently took to Twitter to take the California division of the American Planning Association (APA) to task for its failure to support eliminating parking minimums near transit in that state. Manville opines, correctly in my view, that parking requirements are pseudoscientific and harmful public policy. (You can click through to his thread for an extensive list of links to the evidence, and it’s worth reading the whole thread.)
But Manville also makes this important observation, about the reason the California APA has not come out in support of eliminating minimums.
Laura Friedman (@laurafriedman43) has proposed a bill, AB 1401, that bans the use of parking requirements near transit stations. It’s a sensible bill. (Note: it doesn’t ban *parking*. It bans *parking requirements*. That’s a big difference).
@APAcalifornia won't endorse this bill. Why? Not because it likes parking requirements. It doesn’t bother to defend them. It’s because developers *also* don’t like parking requirements. So the APA and cities believe—wrongly (see below)—that they can use parking requirements as bargaining chips to get developers to build affordable housing in their projects.
…. This is a bad argument for a bunch of reasons. Note that the parking requirements here just mask a different goal. They aren't there because cities need more parking, but because cities need some things they think some developers will give them in exchange for escaping the parking requirement. That’s pretextual zoning.
Pretextual zoning, like all pretextual rulemaking, is bad. Pretextual zoning makes zoning less transparent, and erodes people’s confidence in it. @APACalifornia should be working against, not for, pretextual zoning.
He's absolutely right. And the problem he is pointing out goes well beyond this issue of parking requirements.
The specific notion that local government needs bargaining chips in order to extract concessions from developers is a harmful one that has become more and more prevalent in recent decades. Inclusionary zoning requirements, for example, are often written with this mindset. A city will offer a density or height bonus—allowing the developer of a market-rate apartment building to add more units or an additional story—if the developer agrees to set aside a certain percentage of units for low-income tenants, or pay into a fund (an in-lieu fee) for such housing.
I am ambivalent on the outcomes of such policies, and the existing research doesn't support firm conclusions in every case. But the whole premise of the policy does beg the question: If no vital public interest is harmed by allowing the developer to build a denser or taller building, then why was the density or height restriction in place, to begin with? If the functional answer is, "As a pretext to bring the developer to the negotiating table," then I think we have a problem.
Affordable housing is a valid and important policy goal. A better, more transparent and straightforward way to achieve that goal would be to raise the money for it via general taxes (ideally a land value tax, since it is precisely the owners of scarce land who benefit from unaffordable housing prices), and then pay for it directly either through direct construction or subsidies given to nonprofits who build and/or acquire affordable housing.
The culture of zoning by negotiation is particularly pernicious because it tends to shut small-scale developers out of the picture. The premise, in the minds of the supporters of byzantine rules and extensive public-hearing requirements, is, "We're going to make sure the community has a voice and that developers have to give something back to the community." But the reality is that turning every development proposal into a high-stakes negotiation means that the only proposals that are viable are from the biggest, deepest-pocketed developers, who can survive the transaction costs of such a negotiation—and who can hire your friendly neighborhood That Guy lawyer.
Down the Rabbit Hole
It’s not just the above sort of transactional rulemaking that is the problem, where the goal is to grant exemptions from the rule in exchange for some concession. The whole history of urban planning and zoning is rife with the use of pretext to achieve unstated goals that have a questionable public purpose at best, a totally appalling one at worst.
The gates to Claremont, a gated community also developed by McDuffie in Berkeley, CA. Image via Berkeley Historical Plaque Project.
You can trace this problem right back to the history of residential zoning. The first exclusively single-family residential zone was established in Berkeley, California in 1916, in its Elmwood neighborhood. The prominent developer who pushed for that restriction, Duncan McDuffie, was explicit about his desire to exclude Black residents from the neighborhood as a goal, but the actual text of the zoning code contained no reference to race. And a year later, when the U.S. Supreme Court ruled that zoning could not be used expressly to achieve racial segregation, Berkeley’s code was safe, because its racial intent was implicit, not stated. Similar stories underlie many zoning codes implemented around the country in the following years and decades, ostensibly to protect quality of life, but at least in part as a pretext for racial and socioeconomic exclusion.
And so, there's a lot of skepticism you should have about local land-use rules, and there's a deeeeeeep rabbit hole you can go down if you really want to start asking "Why?" about your zoning code. Why do we require that? Why do we ban this? Where did this number or quota come from? What vital public purpose is being served? What health or safety need is really being met?
We’ve come a long way from the open racism that went unchallenged in 1916. It would not go unchallenged today, least of all by urban planners who have studied that history. But we’ve retained the legacy institutions: the codes that regulate density, land use, open space, parking, and so forth in ways that are difficult to connect directly to any valid public purpose, and all too easy to pervert for private gain. I told a neighbor last week in casual conversation that I’d love to build an ADU in my side yard, but it’s not allowed. He was baffled that such an innocuous thing wouldn’t be allowed, and asked why not. I had no answer to give him that wouldn’t have led to a long conversation about the history of zoning—and I had to go cook dinner. (If you’re interested, as the APA presumably is, in the prestige and authority of the planning profession, know that this kind of thing is a big reason the public doesn’t trust planners very much.)
I would venture that for about 90% of your local code, you're not going to find a good answer to the “Why?” that doesn’t rely on an indirect pretext for achieving some other goal. And it would take a lot of courage for an institution like the APA to admit that. (Though there are many, many great planners who are APA members who are asking exactly those questions!)
And that doesn't mean land use should be a free-for-all; I'm not arguing that we should abandon planning or land-use regulation. I’m saying the things we regulate are often arbitrary, poor proxies for the actual public health and safety impacts that matter. It's harder to enforce a noise ordinance than it is to say, "We can't allow more people to live on this block, because it might get noisy." But if the noise is the actual impact, then regulate the noise.
All this is a challenge that calls for better, more transparent planning, not for less planning. The APA should be leading the push for our cities to rise to that challenge, not defending a mess of a status quo.
Cover image via Unsplash.
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