City unplanning.

• Author: Schleicher, David
• Position: Political costs of downzonings on housing development - II. Land-Use Law and the Political Economy of City Planning B. How Land-Use Procedure Produces Strict Land-Use Policy through Conclusion, with footnotes, p. 1704-1737

2. How Land-Use Procedure Produces Strict Land- Use Policy

   Scholars working in a number of different intellectual traditions have long believed that the political influence of big developers should lead to big cities being easy places to build. And yet, zoning has become much more restrictive in our biggest and richest cities, so much so that it has begun harming regional and national economic growth.

   This Section attempts to develop a theoretical argument, consistent with a number of known facts about land use, as to why this might be the case. It argues that the pathologies of legislative decisionmaking in the absence of locally competitive political parties discussed above have a big effect on local land-use decisions. Procedural rules organize land-use politics in ways that bias the results against incremental increases in the supply of housing. And deference to legislators on issues specific to their districts gives neighborhood groups outsized control over land-use decisions, leading to sharp limits on construction. These problems can explain why housing prices increased in many cities despite the influence of powerful developers.

   Ever since the Hoover Administration promulgated it as a model act in the 1920s, the Standard State Zoning Enabling Act (SZEA) has served as the basic backbone of local zoning procedure in almost all states and has been applied, at least until recently, remarkably consistently across the country. (128) While the details of zoning procedure are famously complex, I will deal only with the very basics of the subject, encompassing both the SZEA and modifications to it like New York City's Uniform Land Use Review Procedure (ULURP), as the political economy issues in which I am interested should become apparent even without delving too deeply into land-use arcana. This ten-thousand-foot perspective will obviously miss some institutional detail, but it should capture the basic structure of how zoning procedure shapes outcomes in unorganized urban legislatures.

   The SZEA and the related but less widely adopted Standard City Planning Enabling Act create a land-use procedure with four basic components: plans, maps, map amendments, and variances. (129) The process proceeds in stages of generality. A master plan contains a basic direction for all land uses in a city, containing a statement of goals, the location of existing and proposed public facilities, and designated areas for different types of private land use. (130) Zoning maps are just that: maps that specify for each lot allowable land uses and the maximum height and density to which property owners can build as of right. (131) Although there is nothing that stops cities from regularly revising their comprehensive plans or zoning maps, neither are changed in their entirety particularly often. (New York City last did so in 1961. (132))

   Changes to zoning maps short of complete revisions can only be made in a few different ways. Substantial changes are effected through map amendments. (133) These go through an appointed board--the planning commission-for a recommendation before proceeding through the ordinary legislative process. There are some restrictions on this process, particularly the limits imposed by courts on spot zoning and contract zoning and the Fasano-Baker doctrine of treating some zoning changes as reviewable, "quasi-judicial" decisions rather than presumptively valid "legislative" ones and rejecting zoning changes inconsistent with the master plan. (134) But these are exceptions to the general deference that zoning changes receive in court. (135) For our purposes, the key to understanding map amendments is that they are seriatim changes to the map, considered one-by-one and limited to a specific area, without any precedential value for other zoning decisions. (136) The same can be said of variances, which are the other major way that zoning changes. A separate appointed body, the board of zoning appeals, can grant variances or exceptions from zoning rules with respect to a specific plot to relieve hardship or practical difficulties. Modern developments in land use have given city decisionmakers more ability to extract concessions in return for the right to build. Cities increasingly use special exceptions, in which certain uses are allowed in zones only with governmental approval, and planned-unit developments, which condition looser restrictions on the city government's approval of a project. (137)

   A number of big cities have added a layer to this process that permits input by advisory neighborhood bodies. (138) New York City's ULURP is the most extensive and well known. Designed to empower local communities, ULURP adds a number of steps to the land-use decisionmaking process. (139) When an amendment or other change in zoning districts is proposed, it is sent to one of fifty-nine community boards, which holds public hearings and issues a nonbinding recommendation. That recommendation is then sent to the borough president, who issues her own recommendation. That goes to the city planning commission, made up of mayoral and borough-presidential appointees, which votes on the proposal (the size of the majority needed turns on whether the borough president approved the change). (140) The city council must then vote on the proposal. The mayor can veto the council's decision, but the veto can be overruled by a two-thirds council supermajority. The process takes eight months on average from the time of an official proposal. (141)

   There are other limits on building that raise the expense and complexity of getting approval to build. Several states-particularly New York and California-condition approval of private development projects on the preparation of environmental impact statements, adding substantially to the cost and time it takes for projects to be approved. (142) Further, historical preservation and the designation of landmarks have increasingly limited building. For instance, sixteen percent of Manhattan south of 96th Street is in historic districts, making it off limits for development unless approval is granted by the Landmarks Preservation Commission, something that virtually never happens. (143)

   It is important to consider how interest groups interact with these procedures. The participants in the battles over land use are well known: developers and consumers (those looking to buy and those who rent) on one side; risk-averse, development-shy neighbors on the other. Absent involvement by developers, the fight between consumers of housing and neighbors is a classic Olsonian mismatch. (144) Consumers of housing each face a small harm when a project is rejected, as each denial only increases the cost of housing by a little bit. Further, as consumers exist throughout a city (and even outside of one), they are hard to organize. Other interest groups, like employers who might want cheap housing as a means of driving down labor costs, similarly are not particularly affected by any one map amendment. (145) In contrast, neighbors each face comparatively heavy harms from new development, both from actual spillovers like increased traffic and blocked views, and from an increased supply of housing in the neighborhood, which drives down the value of their largest asset. Further, neighbors are physically proximate to one another by definition, and they are often already organized and ready to do political battle.

   Moreover, disaggregated consumers have no protection in generalist political parties or majoritarian politics in urban legislatures. Unlike, say, taxpayers in Congress, who can rely at least to some degree on the interests of the major political parties in creating brands that appeal to a majority of the population, consumers of housing cannot rely on the incentives of political parties to appeal to residents citywide. (146)

   The mayor potentially stands as a partial exception to this, as the mayor has to appeal to a broad constituency and sometimes has a profile large enough for voters to develop ideological or retrospective evaluations even without party labels to aid them. (147) As a result, mayors are generally thought to support development to a greater degree than city legislatures. (148) But strong and high-profile mayors are the exception rather than the rule in American cities. Many cities have council-manager systems with powerless mayors. (149) In other cities, mayors must share their executive role and local prominence with figures ranging from county executives to school board chairs. (150) Even where mayors are high profile, the absence of consistent ideological coalitions that exist across elections and the lack of clear labels for largely unknown challengers means that voters in these elections still have less information than voters in national partisan elections. The type of generalist sympathies generated by mass political parties are absent in most big cities, and the existence of a high-profile executive officer only provides some mitigating majoritarian influence on local politics.

   The saving grace for consumers of housing, in ordinary understandings of zoning politics, is their "alliance" with big developers--the Dursts, Ratners, and Trumps of the world--who build housing for consumers and are repeat players with strong incentives to be involved in local politics. (151) These developers can use their influence on local politicians to get new housing built, serving the goals of housing consumers who have insufficient individual incentives to lobby for themselves. Developers do not substitute for consumer lobbying perfectly--developers do not care about consumer surplus and rarely build on a scale that will capture the range of agglomeration benefits--but do so significantly.

   However, the influence of developers does not necessarily translate into easy expansion in housing supply for two reasons, both of which are products of the types of legislative breakdown discussed in Section...