Meanwhile, in Berkeley

In 1916, New York City enacted its first-in-the-nation zoning ordinance. This kicked off a rapid and radical shift in land use governance in the United States, soon to be promoted by the Herbert Hoover’s Commerce department, which became cheerleaders for the adoption of comprehensive zoning ordinances and released and published draft model legislation, and a few years later to be granted constitutional legitimacy and legal certainty by the Supreme Court in their 1926 decision, Village of Euclid v Ambler Realty Co. NYC’s groundbreaking ordinance was among the first to address both building bulk (primarily through lot coverage limits, and secondarily through height limits) as well as use (separating residential, industrial, and commercial). What the ordinance did not do, however, was attempt to separate out single family homes and multifamily apartment buildings as distinct uses. According to a classic work on early American zoning, The Zoning Game by Richard Babcock, this is because “the framers doubted the validity” of such a distinction.

Babcock concludes his discussion of that aspect of NYC’s zoning ordinance by observing that “A more notable example of a clouded crystal ball is hard to imagine.” Indeed, just a few months after NYC’s precedent, the City of Berkeley, California enacted their own first-in-the-nation law. While Berkeley lost out to New York (and a few others) in the race to pass the first comprehensive zoning law, it was the first to do what New York City was unwilling to do: separate out certain residential zones for single family only development. It’s no secret that the early history of zoning was largely (though not solely) motivated by a desire for racial segregation. Indeed the 1917 Supreme Court decision Buchanan v Warley, which banned explicitly racial zoning on 14th amendment/property rights grounds, compelled many municipalities to look to Berkeley’s example as an alternative means to achieve the same goal. Indeed, Berkeley’s zoning code was written with the looming legal threat to explicitly racial zoning squarely in mind:

Boosters of Berkeley’s single-family zoning ordinance, such as the California Real Estate magazine, publicly bragged that it would create an entire neighborhood that would remain reliably free of “Negroes and Asiatics”.  What was notable about the 1916 ordinance, however, was not merely that it was racist, but that the ordinance itself could effectively segregate without using any explicit references to race. This was deliberate, implicit discrimination. 

At the time, a half-dozen Mid-Atlantic states had experimented with explicit racial zoning, but were facing legal challenges based on the 14th Amendment. A city, using its regulatory authority, was not supposed to discriminate based on race. 

Zoning experts helping the City of Berkeley were aware of the challenges, and suggested single-family zoning as a clever work around. It assured that only people who could afford a mortgage would live in the neighborhood. In 1916, that effectively excluded almost all people of color.

The rest, as they say, is history. The idea caught on incredibly quickly, its promotion was at the heart of Commerce Secretary Hoover’s evangelism for comprehensive zoning, which was probably unnecessary. When comprehensive zoning made it to the Supreme Court in 1926, an important part of Justice Sutherland’s decision involved the harms to other property owners that large buildings, such as apartment buildings, which “by their height and bulk with the free circulation of air” would “monopolize the rays of sun which would otherwise fall on smaller homes.” Whatever one thinks of that rationale, it wouldn’t seem to apply to duplexes, but Euclid’s zoning code, following Berkeley’s example, also excluded duplexes from single family zones, even those that fell within the same zoning envelope (height and setback restrictions) of single family homes, and would thus have no adverse impact on the “circulation of air and light.”

The reasons for enthusiasm for exclusionary single family zoning over the last century have been myriad. Racial zoning was the primary initial motivation, joined by its close cousin, class segregation. Other motivations are driven by aesthetic considerations, which themselves have been shaped by America’s pervasive and long-standing anti-urban sentiments. A desire to hoard public goods, such as on-street parking and freeway lanes, the protection of scarcity-inflated property values, and good old-fashioned status quo bias also contributed to the dominance of this legal regime. It’s an interesting counterfactual to contemplate whether the mid-century demise of urban mass transit and massive freeway building enterprise connecting ever further afield suburbs to urban cores would have been as complete or dramatic had this legal innovation never caught on.

Some time around exclusionary single family zoning’s centennial, cracks in the edifice were beginning to show. Motivated by a massive housing shortage and the difficulties and negative externalities of growth-through-sprawl, reformers have sought to peel back single family only zoning. A number of jurisdictions, led by Minneapolis and Oregon, now allow 3 homes per lot in (previously) single family zones. But the devil is in the details, and many of these reforms, by retaining virtually all other features of the existing zoning (setback requirements, height limits, floor area ratio limits, and lot coverage maximums in particular) ensured that building 2/3/4-plexes mostly wouldn’t be worth the bother, financially.

Back to Berkeley: in the next few hours, next Tuesday, the Berkeley city council will vote on their version of the end of single family zoning, 108 years after its ignominious role in its invention. Should it pass without significant amendment, their approach is not only far superior to the initial efforts passed in Oregon and Minneapolis, it may be the most serious and effective reform to exclusionary zoning passed so far in the United States (the other serious contender for that title I’m aware of is the city of Spokane’s recent zoning reforms.) Darrell Owens, who grew up watching Berkeley’s exclusionary zoning decimate the city’s Black population, gives a rundown of some core features of the proposed reforms (and their interactions with state density bonus laws) here:

Here is the latest product of Berkeley’s “Missing Middle” upzoning, soon to be certified or rejected by the city council. The city has moved away from mandating citywide four-home zoning and moved to “form-based” zoning with uncapped density.

All density limits for the R-1, R-2 and R-1A zones have been removed. Any number of homes can be built, provided the building does not exceed 3 stories, with a 4 foot side or rear setback and 15-20 foot front yards. In practice, this will allow about 6 to 10 homes on most city parcels with landscaped front yards.

If the builder makes 15% of the homes for very low income households, 24% for low income households or 44% for moderate income households, the number of homes allowed will increase to upwards of 9 to 15 homes under state law. Under Berkeley law, 20% of homes for projects with more than 5 homes must be sold or rented to low income households. Any project at or over 5 homes will automatically be entitled to 3 to 5 additional homes.

The city will conduct historical census of all structures within the city, particularly if they’re likely to be demolished. This is good policy and how all cities should approach landmarking, rather than allowing anyone to bring landmark petitions only when new housing is proposed.

Allow 60% of a parcel to be developed, up from the 30 – 45% standard. No floor area ratio requirements.

No parking is required per the city’s climate change anti-driving policy. If a builder chooses to add parking and they’re located 0.5 miles within a transit corridor, they are limited to one space for every two homes. Bicycle parking and transit passes are encouraged.

If it surprises you that Berkeley is potentially at the cutting edge of the movement against exclusionary zoning, that’s understandable given the city’s longstanding and well-earned NIMBY reputation, but the shift has been underway for a little while now. Indeed, upzoning and reforms have led to an apartment book in the downtown area that has produced excellent results on price relief for renters, as Owens examines here. (Darrell’s substack blog is fantastic; it’s the only substack I pay for; anyone interested in land use politics should at least follow, as many of his posts are free.)

Cards on the table: while there are aspects of the 20th century zoning approach that are perfectly defensible, exclusionary single family only zoning shouldn’t be considered one of them. Whatever else people might like about it, at bottom it’s an exercise in classism. It’s a rule that says “you have to buy a bunch of expensive land you may or may not want, and then waste it, as a tax on living here, and no joining forces with other families of similar means to share the burden of the costs of high cost of building either.” It should be an anathema to anyone whose political ideology contains any meaningful commitment to either egalitarian values or freedom of movement. It sounds like the good guys probably have the votes; we’ll find out soon enough.