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July 22, 2019

4/3/2018 7:25:00 AM
A look at the history of large lot zoning

Richard Moore
Investigative Reporter


News analysis



Large lot zoning has taken it on the chin for more than a decade now - even environmental and pro-smart growth groups and Obama's EPA have cautioned against it, saying there are better methods of environmental regulation - but the zoning mechanism that gained steam in the 1950s still has its proponents, and, what's more, it's still the water-quality regulation of choice for local governments.

To be sure, these have been lean years for the large lotters. Here's how The Nature Conservancy's Dr. Rob McDonald put it in 2015: "Environmentalists have to tread carefully when discussing zoning codes. We want the government to be able to use zoning codes to protect public health, ensure access to public parks, and protect at least a few parcels of open space in a metro area. We want governments to be able to plan to make cities more walkable, greener, healthier places."

So the conservancy supported strong zoning codes, McDonald wrote.

"Yet the massive exclusionary zoning in many cities has restricted housing supply near cities, pushing up prices there and contributing to urban sprawl, and the spread of new low-density neighborhoods in the fringes of urban areas," he wrote.

And here's what the EPA has to say about large-lot zoning in its discussion of tools for watershed protection in developing areas: "From the standpoint of watershed protection, large lot zoning is most effective when lots are extremely large (2 to 20 acre lots). While large lot zoning does tend to reduce the impervious cover and therefore the amount of stormwater runoff at a particular location, it also spreads development over vast areas."

The road networks required to connect those large lots can actually increase the total amount of imperviousness created for each dwelling unit, the EPA states.

"In addition, large lot zoning contributes to regional sprawl," the agency reports. "Sprawl-like development increases the expense of providing community services such as fire protection, water and sewer systems, and school transportation. Sprawl also increases the amount of land converted from forest or farmland to lawns."

Economic inequality, suburban sprawl, habitat fragmentation - all these and more are black marks against larger lot sizes, and have prompted environmentalists to adapt alternative strategies, such as cluster development and impervious surface regulations.

Still supporters persist. After all, they say, larger minimum lot sizes do tend to reduce impervious surfaces at specific locations, as the EPA observed, at least on tracts larger than two acres, and they also work to preserve open spaces, especially when larger lots are imposed in tandem with alternative regulations.

They are especially popular in America's suburbs and in scenic resort areas. Beyond popularity, local governments find them to be the easiest and most convenient regulations to adopt.



From whence it came

One of the most recent and comprehensive analyses of large-lot zoning - and of its ability to survive - comes from Paul Boudreaux, a professor at Stetson University College of Law, in the January 2016 issue of the Maine Law Review, in an article entitled "Lotting Large: The Phenomenon of Minimum Lot Size Laws."

Boudreaux is no fan of large lot zoning, but in his paper he wants to know, "Why is large lot zoning so ubiquitous as a method of land use regulation?"

For that he gives the necessary historical backdrop.

For one thing, large-lot zoning issued from the mainstream notion that the proper purpose of zoning was to preserve the character of neighborhoods, and in the beginning that was a far more important reason for its being than environmentalism.

Just as zoning once kept factories out of residential neighborhoods, in the early 20th century zoning began to be used to segregate other permissible land uses, such as single-family and larger houses from multiple-family residential housing and smaller residences, Boudreaux observed.

That segregationist thinking might sound elitist today but back in the 1920s it was mainstream and even endorsed by the courts. In a landmark case in 1926, Village of Euclid v. Ambler Realty Co., the suburb of Euclid, Ohio, imposed minimum lot sizes, the largest of which was only 5,000 square feet.

The case went to the Supreme Court for many reasons, but, Boudreaux noted, the high court declared in favor of large lots, concluding that "discrimination against apartments was justified because such buildings 'destroy' the 'residential character of a neighborhood' and 'come very near to being nuisances ...'"

As the nation's suburbs grew because of job decentralization and increased mobility, so did the clamor for character preservation in the neighborhoods. Some of it was racially motivated, writes William A. Fischel of Dartmouth College, for zoning could be used to reduce potential contact between races by the facially-neutral expedient of insisting on large lots and single family homes in residential districts.

But exclusion was more often an income-based, class issue, Fischel wrote.

To say it another way, people in single-family neighborhoods didn't want those annoying apartment people coming in, messing up their way of life.

"Communities had come to be chosen more for quality of life than for commuting convenience," Fischel wrote. "The Tiebout (1956) model, in which public services are determined by householders 'voting with their feet' among numerous suburbs, became a more realistic description of location decisions and home values."

And with a community's quality of life a more important determinant of home values than location vis-à-vis jobs, he wrote, homeowners became even more watchful of zoning changes that might affect that quality of life.



Political reality

To be sure, density is one way to control neighborhood character, and that's an essential feature of large-lot zoning - it provides protection for the current residents of a community or neighborhood. After all, as Boudreaux explained, it's the current residents who elect the leaders who decide the zoning.

"Lot size zoning laws, by definition, restrain the number of housing units per acre," he wrote. "... American land use law typically permits wide discretion in assigning the minimum lot size. Local governments are responsive exclusively to their current residents. They are not responsible for considering the interests of prospective migrants, persons in other areas of the state, or any other notion of public welfare beyond its own borders."

As such, Boudreaux wrote, local governments often act to avoid high density, thus offering an "amenity" to current residents.

"One motivation is to preserve the relative quiet and 'character' of a community," he wrote, meaning less noise, less traffic, and more open space - at least in the sense of more lawns and fewer buildings and fewer automobiles on the local streets.

And there is an economic motive, too, Boudreaux acknowledged: "Large lots also increase the property values of the existing residents. Prospective homebuyers have fewer choices than they would under a free market and will bid up the prices of the relatively scarce houses in existence. In addition, the inflated prices for the relatively scarce existing houses make it more difficult for persons of modest incomes to migrate to the area."

That appeals to "snob zoning" and to those who wish to exclude racial minority households, who tend to have lower incomes, Boudreaux stated.

"Moreover, to the extent that new housing increases the costs of public infrastructure, such as roads, sewers, and schools, current residents have an incentive to oppose density in order to avoid higher taxes," he wrote.

Of course, Boudreaux continued, all those motivations can be called NIMBYism, or "not in my backyard," but there are other reasons people promote large-lot zoning.

The predominant motivation, though, these and other analyses indicate, is that large-lot zoning though the end of the 1960s was about protecting neighborhood character primarily - whether class-based or race-based motivation, whether for aesthetic preference or economic interest - with property values and taxes being important if secondary concerns.



The enviro man cometh

In the early 1970s, a new motivation arose for large lot zoning, Fischel wrote: environmentalism.

It came just in the nick of time. Up until the end of the 1960s, zoning had focused on specific exclusions, Fischel wrote, such as single-family zoning to specifically exclude renters and lower-income people.

But with the decentralization of jobs from cities to suburbs, along with residences, and with the growth of the civil rights movement - and civil rights litigation - targeted zoning was seen as what it was then, in many if not most cases, discrimination.

But the rise of the environmental movement gave municipal officials a new, more general way to write exclusion laws, Fischel argued.

"The suburbs' answer was to adopt the facially neutral policy of restricting all development, not just that for low income people," Fischel wrote. "The rubric for doing so was 'growth management,' which became, as Norman Williams put it, 'a major movement in the 1970s - apparently springing up spontaneously in local areas all over the country.' Faced with the curtailment of selective exclusion, localities began to opt for general exclusion."

However, Fischel wrote, adopting larger lot and "open space" zoning, two mainstays of growth management, had the drawback of foregoing some fiscally profitable commercial and other economic development, and anti-growth politics just weren't all that popular.

Something less selfish was needed, Fischel wrote. Enter the environmental movement.

"In the 1970s, however, a new ideology was needed to justify the suburban shift from selective growth to reduced growth," he wrote. "Home-and-hearth ideology, after all, applied to the poor as well as the middle class, to the owners of condominiums and mobile homes as well as to owners of standard single-family houses. The environmental movement of the early 1970s provided a seemingly new and compelling ideology to justify a more general exclusion of development."

In other words, instead of protecting people, the new exclusionary zoning would be justified by protecting natural resources. Local land-use regulations developed quickly, Fischel wrote.

"'Think globally, act locally' became the unofficial mantra, and acting locally typically means preserving open space from the bulldozer," he wrote. "The mottoes of no-growth, slow growth, managed growth, and (currently) 'smart growth' are all facially neutral watchwords which nonetheless are effective substitutes for more selective means of keeping the poor out of the suburbs."



Environmentalists: The need is real

Environmentalists, of course, say the environmental need for exclusionary zoning, and of large lot zoning especially, was critically important. Many, especially on the local level, insist it still is.

What's more, they say, such environmental protection would guarantee jobs in recreation areas and would preserve economically important farmland. They also cite public trust doctrines - the duty of the state to protect the natural resources that belong to all.

The Urban Law Annual of 1974 presented a piece, "New Arguments for Large-Lot Zoning," which laid out the environmental case, at least as it was embraced by most courts at the time.

For example, in Steel Hill Development, Inc. v. Town of Sanbornton, courts determined that the protection not only of aesthetics and character but of ecological elements were proper objectives of large-lot zoning.

The community's power to zone to protect the environment was clear, the court ruled, the journal article, written by John Anderson, summarized:

"We recognize, as within the general welfare, concerns relating to the construction and integration of hundreds of new homes which would have an irreversible effect on the area's ecological balance, destroy scenic values, decrease open space, (and) significantly change the rural character of this small town," the court of appeals stated.

But more courts focused on aesthetics preservation, Anderson wrote. For example, the law review cited Simon v. Town of Needham, where the Supreme Judicial Court of Massachusetts upheld a one-acre restriction because low-density neighborhoods "would tend to improve and beautify the town and would harmonize with the natural characteristics of the locality.... ."

A New York court permitted one-half acre and one-acre requirements, partly because such a requirement would secure the town from noise and traffic, would promote "rest and relaxation," and would enhance the beauty of the village, the law review article observed.

A one-acre minimum was upheld in Bilbar Construction Co. v. Easttown Township Board of Adjustment on general welfare grounds. The court stated that aesthetic considerations were an important aspect of the general welfare to be considered by the courts.

In many cases, the law review article found, the courts found aesthetic considerations, tied to maintaining the character of a neighborhood, to be proper public welfare concerns but Anderson wrote that "there has been little discussion in large-lot zoning cases of whether protection of ecological elements is a proper zoning objective."

The district court in Steel Hill did uphold large-lot zoning, in part on the basis of ecological considerations, Anderson wrote: possible destruction of natural resources, pollution of the air and water, and damage to the ecological balance of the area.

Indeed, Anderson wrote, Steel Hill suggested that environmental considerations could become important arguments for sustaining large-lot zoning.

"Certain ecological arguments for large-lot zoning, especially those concerning air and water pollution, could be based on health and safety considerations," he wrote. "General welfare arguments could be used to justify large-lot zoning designed to protect the natural resources and maintain the ecological balance of the area. This would be most effective in a recreation area, such as Sanbornton, where the natural resources are the principal tourist attraction."



The easy way out

Ay the end of the day, the environmental movement has kept large-lot zoning in the land-use game, with much deferential support from the nation's courts, as those courts have moved since 1974 to embrace ecological considerations in zoning decisions, just as Anderson had written.

But there's another reason large-lot zoning remains so popular - local governments find it easy to implement.

For one thing, while impervious surface restrictions will cap impervious coverage and protect water quality, it is more time-consuming to measure than lot size, while lot size is more effective at limiting density.

It is also more likely to withstand a legal challenge, according to Boudreaux.

"In contrast to the other policy options, large lot zoning offers a relatively clear path for local governments to control both population and housing density," he wrote. "Unlike population caps, it is not susceptible to constitutional claims of the right to reproduce or travel. Unlike moratoria, it may be permanent. Unlike quotas or household composition limitations, it may guarantee a long-term restriction on the population density. And unlike geographical bans on new housing, lotting large avoids the ominous prospect-to government - of a Lucas taking."

A so-called "Lucas" taking triggers compensation to landowners whenever a government prevents an owner from building anything on its lot, regardless of its size.

Add the political considerations on top of the effective way it constrains density and it is easy to see why local governments favor large-lot zoning, Boudreaux wrote.

"When the law of takings and other constitutional rights is combined with the deference that courts have granted to lotting large, it is safe to reach this conclusion: Large lot zoning is the most attractive and most defensible method for a local government, spurred by its existing homeowners, to use law to avoid density and to slow population growth," he wrote.

The irony of large-lot zoning, writes Boudeaux, is that large lots have blossomed and thrived during an American era in which household size has fallen precipitously, widening the gap between richer and poorer Americans.

"The nation's population continues to grow, as it always has," he wrote. "As of 2015, the American population of more than 320 million swells by one person every 15 seconds, and more than two million new persons per year. About half of this growth is attributable to more births than deaths, and half to migrants from other nations."

Each year, Boudreaux writes, more than 2 million Americans turn 18 years old, and two million others turn 21.

"Unlike in Britain, in which there is a movement to cap its population, Americans appear to welcome perpetual growth," he wrote. "Political liberals favor looser immigration laws, while political conservatives support the suppression of abortion."

Economists note the economic advantages of a rising population, especially with the increase of younger workers, whose taxes pay for the benefits awarded to the swelling ranks of retirees. But these new Americans need housing, Boudreaux wrote.

"Exacerbating the need for new housing in the United States is the decreasing size of the typical household - a term that refers to one or more persons living as a unit," he wrote. "The average size of a household has fallen from more than 3.5 persons in 1950, at the dawn of mass suburbanization and adoption of large-lot zoning laws, to about 2.5 persons, as of 2013 data. The most common composition of a household today is one person living alone; the share of single-person households has risen from only 13 percent in 1960 to more than 27 percent as of 2015. The boom in single-person households is driven both by the fact that more young people choose to live alone and that elderly people are living longer."

One day, the nation's housing needs may clash directly with the widespread use of exclusionary zoning. That day has not yet come, if it ever will. For now, large lot zoning and its environmental arguments continue to carry the day.

Richard Moore is the author of The New Bossism of the American Left and can be reached at www.rmmoore1.com.





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