Zoned Out in New Jersey?

The Compassionate Care Foundation dropped its suit against the zoning board of Westampton Township, New Jersey. In the latest episode of the medical marijuana story, the group’s attorney tells the Star-Ledger that the organization has found a new site in the shore town of Egg Harbor, in Atlantic County. But, the state health department still has to issue another permit, or something, before things can go forward there. I guess we’ll see.

Funding Sprawl

The Atlantic has an article by Jordan Weissmann entitled, “Why Your Prius Will Bankrupt Our Highways.” It paints an ominous picture of the relationship between gasoline taxes and federal highway funding. I think it’s interesting that proposed public spending on rail infrastructure is reliably controversial in the United States, but not the subsidizing of motor travel through public spending on roads, highways and related infrastructure costs. It would be fair to say that the business model for private railroads would be a lot rosier if the government built and maintained all of the tracks, switches, and stations across the country, without controversy, and the private sector had only to supply the actual engines and rail cars.

Weissmann’s article also, indirectly, makes the case for land use policies that discourage sprawl and facilitate more compact development patterns. I’ve been reading about this topic lately in connection with some work that I’m doing for a research center. Studies have found that, in addition to the staggering highway costs that are generated by car-based land-use patterns, added costs for the development and maintenance of water and sewer infrastructure, private sector utilities, and lost productivity due to traffic congestion also grow in direct correlation with low-density, sprawl-type development.  These externalities ultimately redound to taxpayers, utility customers, and other consumers, where they are shared by town-dwellers and sprawl-dwellers alike. In traditional towns and cities, these costs were borne more directly by those who would benefit– a practice which strongly encouraged efficient land use.

Can Communities Zone for Small Merchants?

New York City is trying. I’m skeptical. As long as the aggregation of zoning laws continues to cap the total available space in high-demand metropolitan regions, I don’t suspect that slicing and dicing the existing land-use allocations will have much of an effect on land costs, which are ultimately the bottom line. On the other hand, preserving a significant number of smaller spaces might, at least, leave some options on the table for merchants with fewer resources who seek a physical presence in the neighborhood– in much the same way that tiny studio apartments permit many individuals to live in neighborhoods (at market rates) where they could not purchase full-sized units. So, it should be an interesting experiment.

Marijuana: Zoned Out in New Jersey

The Newark Star-Ledger has a piece about a proposed bill in the New Jersey General Assembly that would override local attempts to use municipal land use powers to block the farming of medical marijuana. The bill is being proposed by Assemblyman Declan O’Scanlon, a Republican from Monmouth County, so Governor Christie’s stated opposition sets up an interesting intra-party schism on the topic. Presumably, if it went to a vote, the Dems would also split, given the surreal political calculus of a bill that encompasses both drug policy and suburban land use. The land use aspect of the New Jersey law has come to the forefront as local opposition to both cultivation and dispensary siting has frustrated its implementation since it was signed by Governor Corzine in 2010. So far, only Montclair has approved a proposed dispensary.

Addressing the Metropolitan Housing Pinch

In spite of vacant mansions across the Sun Belt, and abandoned properties across the Rust Belt, we still don’t have enough affordable housing in the places where it might help.  That’s the conclusion that Matt Yglesias reaches in a recent Slate squib, shortly after the Economist‘s Ryan Avent wrestled with the same basic issue, at length, in The Gated City.  It’s a real problem.  It may be that we’re long overdue for a political system that finds the courage to tell homeowners: Look, you’re going to have to accept less distorted property values, and get used to having some new apartments in the neighborhood.  But the question is, logistically, how?  Given the outsized influence of ultra-local politics on land use regulations, it’s a Sisyphean task.  In New Jersey, Mount Laurel hasn’t been adequate, and neither has targeted redevelopment.  It’s not thatGiven the degree of political and bureaucratic bullshit that obtaining a building permit can often entail, investors are understandably sour toward any residential construction project that doesn’t promise big returns.

I fear that the longer this goes on, the more currency proposals like Avent’s will gain.  That is, it begins to seem more sensible to ask: why not simply cut the Gordian Knot, and abolish all but the most utilitarian building codes?  It is particularly maddening to see the entrenched resistance to any sorts of sensible reforms, because addressing this unmet demand could be a real boon to the economy, with benefits redounding to all– including the homeowners who would predictably resist.  That is, targeted land use reforms aimed at freeing a meaningful portion of urban land for new, modest residential uses would put tradesmen and laborers back to work; allow a broader base of people to invest in the country’s strongest metropolitan land economies; and could ultimately lower labor costs in those regions where opportunities tend to concentrate.  Unfortunately, we’ve been waiting for at least fifteen years for the political system to acknowledge that there’s anything undesirable about having a status quo of astronomical housing costs.  I’m not holding my breath.

‘Fracking’ v. Euclid

Heard this story on N.P.R. tonight while driving home: The Pennsylvania State House is considering legislation that would preempt local land use policies that restrict ‘hydrofracking’ within their jurisdictions. I think it would be fair to say that this proposal aims at the heart of US zoning’s basis for legitimacy.  That is, keeping industrial nuisances out of residential neighborhoods is the most basic premise for authorizing a zoning ordinance.  Historically, zoning was a direct response to the land-use chaos ensued from the Industrial Revolution.  Seriously: If the state won’t allow local governments to keep hydraulic fracturing out of residential neighborhoods, what business does it have authorizing them keep out apartment houses or barbershops?

People v. Regulations

There was another good piece in the Times today by Michael Kimmelman: this one about the conflict between the embedded priorities of New York City’s building, zoning, and occupancy regulations and the people who require the city’s living space. The crux of the story focuses on the mismatch between housing that is oriented toward nuclear families, and the much more diverse array of households that make up the city. The piece starts with an architectural profile of a new S.R.O. on Bronx Park East, in Pelham Parkway, and describes how permits for such buildings are now relegated to special uses; it then spins off into a discussion about the potential to create smaller, cheaper, and more individualized living spaces on modest canvases of urban land: all good points.

I lived in an old S.R.O., briefly, when I was 18-19, and going to school in the Village. Based on that experience, and the deprivation of light, space, and privacy that it entailed, I’m not sure that the return of the old S.R.O. model to the urban marketplace would be ideal. But the basic concept certainly provides a starting point for land-use efficient housing, and illustrates the creative building traditions that have been stifled by the homogeneous dictates of post-Euclid regulations, even in America’s large east-coast cities.

Land Use is Dead: Long Live Land Use

I had a chance to read The Gated City.  Ryan Avent offers a compelling case about of the misuse of land use powers by local government.  Sadly, his argument echoes the findings of the New Jersey Supreme Court in its 1975 Mount Laurel decision.  There, the justices found that municipalities were abusing their state-delegated discretion over land use matters to avoid housing their respective fair shares of New Jersey’s poor residents, in violation of the state’s constitution.  Today, 36 years later, the issue is not simply that post-war Euclidean suburbs are zoning out viable housing options for poor people, but that entire metropolitan regions are failing to provide housing options for the middle class.  When it comes to metropolitan housing, the effects of NIMBY-ism have become a tragedy of the commons.

Avent depicts how inflated housing costs in some of America’s most dynamic regions are driven by legal restrictions on the expansion of housing supplies.  He argues that these costs now frequently outweigh the economic benefits of working in the same regions.  As a result, large numbers of Americans have migrated out of the economically vibrant regions around places like New York City, Boston, Washington, and San Francisco, where money, expertise, and strong networks are concentrated.  Instead, he argues, they have relocated to more affordable regions like Phoenix, Houston, and Las Vegas, which inherently offer fewer economic opportunities.  But I’m not persuaded that these groupings of cities necessarily occupy two sides of a static dichotomy.

Avent’s analysis is compelling, but his approach is essentially libertarian, and I don’t agree with the embedded assumption of his argument: namely, that the housing markets of America’s great metropolises ought to be left to find their natural equilibria.  In the last chapter, he writes:

[A] good first step would be to strengthen urban property rights. A very straightforward way to accomplish this would be to declare that a neighborhood can limit development on land to whatever extent it wants, so long as it’s willing to either buy the land in question or pay the land’s owner to comply. Among the key problems associated with NIMBYism are the wedges driven between societal costs and private costs, and between private costs and private benefits.

Are these killing the American Dream?

Penn Central tried a limited version of this same argument at the U.S. Supreme Court in 1978, and lost.  I’m actually sympathetic to Penn Central’s contention that individual properties should be purchased if they are to be singled out from adjacent properties as landmarks; otherwise, we create a disincentive for the private construction of beautiful buildings.  But Avent takes his argument a big step further, essentially saying that the fundamentals of Euclidean zoning, and even the sensibly modest Victorian building codes, should (ideally) be done away with in favor of urban private property rights.  This is too much.  A healthy city is not a culture in a Petri dish: The slum tenements and social depravity of urban life in the Victorian period showed the dangers of unbridled land use.  The legal and political systems have roles to play in mediating the use of urban land.

But Avent’s piece is also a wake-up call: The system of land use regulation in this country is broken, and it is failing too many of our people.  What’s more, its failure is discrediting the moral arguments on which it rests.  In too many places, land use regulation has ceased to make life better, and has instead become a tool of exclusion and social inequality, a barrier that prevents people from finding decent homes and work spaces, and a way to game the legal system for the benefit of local political insiders.  Bad land policy has also resulted in the scarring of our landscape by ugly, politics-driven development.  These costs are no longer reserved for poor people, but now also harm many who are educated and rich.  Without serious reform, calls for scrapping the entire Euclidean régime will become increasingly difficult to resist.

Independent of concerns about the legitimacy of zoning, magnet cities like New York and San Francisco, for their own economies and equities, need to develop much, much larger and more  durable stocks of affordable housing.  This could be accomplished through limited-equity legal arrangements, with a measure of planning guidance; and also through targeted, substantial increases in regional densities.  At the end of the day, however, there needs to be a balance between market forces and human considerations.

‘The Gated City’: Land Use Laws and Price Distortion

Reason‘s Peter Suderman recently interviewed Ryan Avent about his new piece, The Gated City. I’m looking forward to finding some time next week to read the book.  Judging from Avent’s interview responses, his analysis sounds accurate: Land use laws are distorting the costs of housing in older, denser, and more desirable US cities. That is to say, because of the restrictions that zoning, massing, preservation, and other rules have placed on the supplies of local housing stocks, demands cannot be met, and the prices of land in high-demand regions (New York City, San Francisco, Boston, etc.) exceed those that would naturally arise from the strengths of their local economies.

By itself, the consequence of higher regional housing costs isn’t a reason to gut local land use laws.  High housing costs have driven a lot of redevelopment, and have created a good amount of new wealth.  Furthermore, the benefits of land use regulation in the realms of aesthetics, logistics, historic preservation, and the environment can be priceless.  But the dilemma does suggest that policymakers should be cognizant that they are engaging in a balancing act.  On the issue of such mixed incentives, I liked this:

Reason: You argue that density has a lot of benefits for residents. But if greater density lowers housing prices, then don’t local homeowners have a pretty strong economic incentive to keep density low?

Avent: Yes—up to a point. Limits on development are somewhat like cartels or unions in this way: They allow insiders to capture rents, but only to the extent that they don’t put themselves out of a job in the process. In the short run, productive agglomerations are fixed, but in the long-run they’re mobile. If development rules in Silicon Valley drive enough people to other, more affordable agglomerations, then other innovators may eventually find it advantageous to follow, and the region may lose the unique factor that created the opportunity for rent-seeking in the first place. And in general, this dynamic is one reason why it’s a bad idea to subsidize homeownership. Renters are happy for … costs to stay low.

Avent advocates institutional reforms that would make allowances for greater overall densities by offsetting new development restrictions in certain areas with more lenient guidelines in others. I think a good aesthetics framework can also play a role in successful upzoning.  85 years after Euclid, and much longer since the introduction of local building codes, it should go without saying that, done wisely, land use regulation can be a public good.  But Avent is wrestling with what has become a more urgent topic: In the choking of the present economy, bad land policy has been, and continues to be, an unnamed culprit.  It’s a point that needs to be made.

After-Market Towns in the Suburbs

The Times has a story in its Real Estate section about the self-conscious construction of a town center in the Long Island hamlet of Coram.  It sounds conceptually similar to a development that is now mostly completed in my own vicinity.  It’s a trend.  My main gripe about such after-market urbanism, if you will, is its tendency to produce results that are very aesthetically monolithic when compared to town centers that develop, organically, from the smaller contributions of diverse landowners working on the varied canvases of multiple land parcels.  Also, like ambitious redevelopment projects, the insularity of these after-market towns may or may not cause them to spawn similar development in the surrounding blocks; they may become, simply, islands amid a sea of sprawl.  But, at the end of the day, these projects are moving the building vocabulary of suburbia in a good direction: one that includes consciously planned streetscapes, smaller housing units, walkable blocks, and a vibrant commercial-residential mix.  To that, it’s hard to object.  And so, the conversation goes on.

Shameless Plug

Drawing of Theater Square, Newark.

I have a couple of blurbs in the current issue of Transit-Friendly Development, a Rutgers-related newsletter where I’ve made some contributions.  One is a review of a 2010 AARP study that considers the dangers to affordable housing for seniors near transit; another, somewhat longer piece looks at the transit infrastructure and inherent T.O.D. potential in Newark.

Here’s a file of the full-length Newark article, unedited for TFD: TOD in Newark.

Early Vesting v. Late Vesting

A perennial controversy in land use law is the distinction between early-vesting and late-vesting policies for land development rights.  The issue: whether the right to build on a parcel, in accordance with the current zoning specs, vests at the time of the initial application for a building permit (early vesting), or only at the time when the permit is issued (late vesting), or even later.  The former approach gives property owners and developers a predictable set of guidelines that, if followed, will allow the project to go forward; the latter approach allows local governments to change the rules of the game once a development proposal is made that politicians or neighbors do not like.

Public comment is not always favorable.  Source: AP

It strikes me that this distinction presents such a clear-cut issue of basic fairness that early-vesting ought to be the universal rule.  After all, a municipality is free to revise its zoning ordinances at any time it likes.  So, why should a builder be subjected to a sudden rezoning that occurs only after (and presumably, in response to) his permit application?  And yet, in the majority of American states, the rule favors late vesting.  Such a policy allows local government to sit on its right to act, and to avoid any land use controversy until an unpopular proposal is actually made; and it shifts the costs and risks of political uncertainty to property owners and developers, who can never be sure that their investment will be viable until a period of political purgatory has been allowed to run.

Of course, before the million-dollar question is ever answered, developers are required to invest in optioning the property; hiring engineers, architects, environmental consultants, and land use planners; and hiring lawyers to advocate for the proposal’s approval.  Now, I’m all for professional services being kept in high demand.  But I think it’s fair to say that those services should be retained pursuant to projects that are predictably going forward, and not for work that’s going to end up in the proverbial circular file.  An early-vesting rule would provide an incentive for local governments to maintain zoning policies that are up to date, and which provide honest reflections of local priorities.  It would also be favorable to competition, by allowing smaller, less well-connected investors to manage the risk of making development proposals.

Old Urbanism: Why Not Break Up New-Town Development?

Exhibit B: Artist’s rendering of the proposed Wesmont Station TOD, Wood-Ridge, N.J. Source:

The WSJ has the story of Wesmont Station, a new mixed-use, transit-oriented development in Wood-Ridge, New Jersey.  It looks nice, and I’m glad to see that it’s going ahead.

But, a rant: The more I watch, the more I see the ambition of projects on these kinds of tabula rasa sites as an indictment of the maddening American land use regime that governs neighborhoods.  Consider three alternatives: Exhibit A is the assortment of ideas and practices that have become calcified in the Byzantine processes of local government.  Some work, others don’t, but we go with them as a package because they look right on the official map.  Exhibit B is Wesmont Station, and similar developments: what’s possible when the standard sixteen layers of local-government approval can be reduced to the blessing of a single, politically-supported superblock.  The Wood-Ridge project is planned for the sprawling grounds of a former factory.  In Edgewater, NJ, a new city has appeared since the mid-1990s on a strip of disused industrial sites along the Hudson River.  A generation ago, Battery Park City rose a few miles south, where piers had once extended into the same waterway.  On a small scale, projects like these are America’s new towns.

The Exhibit B examples are well and good, but there’s also a potential Exhibit C: an artful zoning approach to building a new neighborhood that has a similarly planned and efficient layout, but which could at once be more individualized, and yield a higher quality product.  More individualized, because it would not require large developers to purchase multimillion-dollar sites, and to develop those all at once.  Instead, a third approach could establish the legal framework of an authentic neighborhood, and allow individuals and small businesses to incrementally fill in their respective pieces of a grand puzzle.  While controlling for nuisances and incompatibilities, it could provide those myriad participants enough flexibility to customize their land uses to their own individual needs.  Thus, the end result could attain a higher quality, and more value, because it would yield a physical town that was at once richer in variety and more reflective of its people than any large, one-shot deal.  In short, an artful zoning approach to new towns could re-create the actual process by which towns and cities were traditionally built, but with the protective elements conferred by the legal authority of comprehensive zoning.

For the time being, it’s good that AvalonBay and other developers are moving projects like Wesmont Station.  It’s progress.  It’s just that I’d also like to see the organic town-building process rediscovered.  It could yield much more than its inevitably boring imitations.  Right now, most local zoning laws could still be described as Exhibit A, while exceptions are made for Exhibit-B proposals when the right political muscle is exercised.  What we need, though, is for more communities to embrace a more visionary and democratic approach to town planning, and to move toward the artful zoning approach of Exhibit C.

NYC Zoning Specs Web Site

An example from the site. Source:

The NYC Planning Department has a web site with a very thorough presentation of the city’s zoning specifications.  I like how its drop-down menu allows you to select any of the city’s 53 zoning categories, or any of its special use districts, and get its basic information.  The layout is clean and straightforward, and the specs tables are concise, illustrated with form-based graphics (to the extent possible), and supplemented with neighborhood photos.

NYC zoning is still deeply, unrepentantly Euclidean.  But this method of presenting separated uses helps to cut through some of the legalistic cobwebs that often accompany an empirical approach to urban land use law.  (Think: a lawyer or planner burning the midnight oil; an unfurled map on a library table; and a heavy binder of obtuse statutory language.)  Proper respect to the NYC Planning Department for using its resources to shed light on what is often an arcane and inaccessible area of the law.

New Jersey Courts: Land Use Decision

A notable unreported land use decision came down from the New Jersey Courts this week.  In Signature Communities v. Red Bank ZBA, the Appellate Division rejected an appeal by the owners of Red Bank’s Colony House, who had sued in response to the Board’s refusal to grant a variance for their property, pursuant to N.J.S.A. 40:55D-70(d).  The 1960s apartment building at issue was nonconforming to a number of Red Bank’s current requirements for the site, and when the owners sought approval for a plan to renovate the building, and to shuffle around its bedroom arrangements, they hit a snag with their pre-existing shortage of parking spaces per unit.  The Appellate Division affirmed the Board’s decision:

In our judgment, the Board’s rejection of plaintiff’s assertions was not arbitrary, capricious or unreasonable.  The record shows that the renovated structure will have nineteen one-bedroom units and forty-nine two-bedroom units.  As we have explained, the [Residential Site Improvement Standards] requires 132 parking spaces for such a building.  The Board reasonably found that the number of parking spaces proposed by plaintiff was substantially deficient when measured against the number required by RSIS.

It’s interesting that neither the Red Bank ZBA nor the Appellate Division appears to have given much weight to Signature Communities’ arguments that (1) the neighborhood’s inherent walkability and (2) its access to public transportation should mitigate against the state’s generic parking-space criteria.  I’m not familiar with the specifics of this case, or with the Red Bank waterfront, but this concerns me.  In the effort to push back against sprawl, these are important caveats, and the rigid application of parking-space requirements can kill important development projects that could otherwise be the building blocks of good urban communities.