Zoned Out Regulation, Markets, and Choices in Transportation and Metropolitan Land-Use

By Jonathan Levine RFF Press, 2005, 223 pp., paperback $26.95

Many new urbanists agree that the primary barrier to developing more compact, mixed-use, transit-oriented communities is zoning. Yet new urbanists face an uphill battle to change codes — in part because many local authorities remain unconvinced that New Urbanism and smart growth offer sufficient benefits, and further because they may be wary of putting restrictions on the land-use market.

Indeed, many conservative or libertarian critics of New Urbanism, such as Randal O’Toole, Peter Gordon, and Harry Richardson, base their attacks on free-market grounds (i.e., the free market leads to sprawl, and New Urbanism is an unwarranted imposition on that tendency). Now comes an exceedingly well-researched book that stands that argument on its head. Current development patterns are not the result of the free market, according to Jonathan Levine; New Urbanism and smart growth actually allow the market to function more effectively.

Levine is so thorough and careful in his reasoning and research that he demolishes arguments to the contrary. Moreover, the book is not written from a new urbanist perspective, nor is it a polemic for smart growth, although Levine, an associate professor and chair of urban and regional planning at the University of Michigan, clearly supports many smart growth goals. Given Levine’s independent outlook, new urbanists are likely to find his arguments and research all the more useful.

“The conclusion that municipal zoning lowers development densities should hardly come as a surprise. Among zoning’s original stated purpose was to ‘prevent the overcrowding of land [and] avoid undue concentration of population,’ ” he notes. “Euclid v. Ambler, which established the constitutionality of municipal zoning, was clear in defining dense housing as part of the problem to be treated.” Indeed, it is hard to come up with an element of conventional zoning — minimum lot size, use restriction, height limit, setback, parking requirement, street width — that does not in some way lower density or restrict the mixing of uses.

Zoning not solely responsible
Levine does not contend that zoning ordinances are the sole cause of sprawl — there is a significant market for low-density development, he points out. Rather, he shows that regulations make the sprawl far more extensive than it ought to be. This conclusion is backed by decades of research in the planning field, which Levine dispassionately analyzes. And he does not stop with reading the literature. Levine conducted a nationwide poll of developers, and two-thirds said there is an inadequate supply of “alternative forms of development,” defined as new urbanist and smart growth projects, transit villages, and the like.

More than 60 percent said local regulations are the primary barrier to alternative forms of development. Only 15 percent said a lack of market is the primary barrier. Levine hypothesizes that if zoning does prevent alternative development, there ought to be a disparity between where people live and where they would like to live. In surveying Atlanta residents, he finds ample evidence that the mismatch exists. People with at least an 80 percent preference for walkable urbanism — residents most likely to choose a compact, transit-friendly place — have only about a one-third likelihood of living in such a place. Atlantans with at least an 80 percent preference for sprawl, by comparison, have a 97 percent chance of living there.

A similar survey he conducted in Boston reveals a much closer match between buyers and their community desires — not because Boston has better recent development patterns, but because historic development has given 20 percent of the region a high degree of mixed-use and walkability and has given another 35 percent of the region a fair degree of these qualities. Another interesting juxtaposition is that of Salonika, Greece, and Silicon Valley, California. Salonika was a low-density settlement of mostly bungalows in the 1920s, built hastily to accommodate refugees. As these structures aged, many have been replaced over the years by taller, multifamily buildings. The current city form is a relatively dense and lively mixture of housing types, brought about by market forces and relatively loose density and height requirements. Silicon Valley, by comparison, was a fringe suburban area with largely single-family housing in the 1960s. Over the next three decades, it grew into what it is today: the worldwide center of the computer industry. Yet its single-family zoning remains frozen in time, with modest houses commanding prices of $800,000 or more. Levine’s point is not that Salonika is better than Silicon Valley, but that if the market were given free reign, Silicon Valley would be far different today. And if Salonika were governed by US-style codes, it still would be a low-density settlement of bungalows. Indeed, Levine points out that low-density, single-family zoning rarely changes once it is put in place — subverting the natural evolution of cities. Benefits of new urban codes In the current climate of suppression of density and mixed-use, new urbanist codes represent a loosening of restrictions, he says. They also introduce variety. One justification early theorists offered for exclusionary zoning was that municipalities would sort themselves into different types by enacting many kinds of regulations. This sorting never happened; low-density, single-use zoning became pervasive. New urbanist codes are a market-based antidote to that problem, even without taking into account that new urban codes are often adopted as overlays, which means that no rights are taken away whatsoever (overlays simply add options). But Levine makes a strong case that codes enabling higher density and mixed-use represent a loosening of regulations, even when they replace previous zoning. Moreover, he takes apart arguments that new urban codes force densities higher than what the market prefers. He quotes Ronald Utt of the Heritage Foundation: “Since the 1960s, there has been this effort at urban revitalization; when expensive projects have not been enough to get people to go back into the cities, a movement has risen up that says we should simply force people to live in what certain others have decided is good. That’s the main idea of New Urbanism.” Levine responds: “This image — forcing people to live in alternatives they do not want — is a mismatch with reality.” Due to the mobility of capital, it is virtually impossible to force developers to build above-market densities, Levine explains. If the required densities are too high, the developer simply moves to a different location. Because of what he calls the “immobility of land,” however, landowners are often forced to accept lower densities than they would wish. “Landowners wishing to escape maximum density limitations cannot take their territory elsewhere and are thus left no choice but to develop at lower densities,” he says. Smart growth and transportation research A correlation between urban densities and lower vehicle miles traveled (VMT) has been clearly established, Levine notes, but researchers still agonize over the “self-selection” factor. The controversy is whether such neighborhoods induce lower VMT, or whether people who move to those neighborhoods prefer to drive less. In the current restrictive zoning climate, Levine argues, this worry is ridiculous. “Self-selection is not a source of bias to be controlled for but rather the primary route through which the treatment will be effective,” he says. If transit-oriented developments are built, he explains, they will not fill up with a random mix of people but with those who prefer that environment — many of whom now live in sprawl. Despite that contention, Levine argues that smart growth proponents hinge their case too much on scientific evidence of transportation benefits. “When scientific evidence is brought forth in support of a controversial policy, it is inevitable that doubts about the findings’ reliability will be construed as evidence against the policy.” Rather, Levine believes that smart growth proponents should emphasize the market advantages. Smart growth policies that loosen market restrictions should not be held to the same scientific burdens of proof of transportation benefits as policies that restrict the market, he says. The only policy supported by many smart growth advocates that clearly restricts markets is the urban growth boundary (UGB), the best known of which surrounds the Portland, Oregon, metro area, Levine says. It is rarely pointed out, Levine notes, that smart growth policies in Portland are a mix of market-restricting and market-enabling legislation — an example of the latter being requirements that municipalities allow higher densities and a mixture of uses around transit stops. Market-enabling legislation is a critical element of a UGB, Levine argues, one that he contends is lacking in UGB laws in Florida and California. Levine offers an alternative explanation for the new urban housing price premiums, which George Washington University researchers Mark Eppli and Charles Tu found to range from 4 to 25 percent in 1999. Eppli and Tu attributed the premium to a higher-quality public realm, but Levine contends it can also be explained by artificial regulatory constraints on such neighborhoods. Higher price for compact neighborhoods is one of the observed effects that should be expected from the current regulatory environment, he says. A legitimate tool when used properly Zoning came about as a legitimate tool to separate dangerous industrial land uses from residential areas, Levine notes. “But market-driven residential and commercial densification and integration can hardly be called hazardous threats to quality of life to the point that regulatory zoning is inherently justified when it excludes them.” Levine does not argue for an end to zoning, rather a loosening of density and mixed-use restrictions to allow the market to work more effectively. He adds that this is likely to have social benefits including greater housing choice, more affordability, shorter commutes, greater transportation options, and a better match between the type of neighborhood that people want and what they get.