Zoning Laws

How to Use Land

Don't worry, it makes sense to someone (reversezone)

Don't worry, it makes sense to someone (reversezone)

NYC Housing Policy Tools Series

Over the next few weeks, as we prepare for the Trump Era, I will spend time on various housing policies in NYC in order to help frame the the affordable housing crisis.  I have picked four topics related to NYC housing laws: rent regulation, zoning, occupancy, and property taxes.  I concede that there are other policy tools that could be included (particularly around financing) but these four tend to have an immediate impact on the most people.  The hope for this blog series is to explain the current policy tool kit in New York, but also to show why questioning the underlying assumptions about housing policy might be able to expand it. 

Part 2 of 4: How to Use Land

Unlike rent laws, zoning laws in NYC fall under the city’s purview, which makes them a very popular and powerful tool for its elected leaders.  Mayor Bloomberg rezoned nearly half of the city during his administration and Mayor de Blasio passed two significant inclusionary zoning plans earlier this year.  However, everyone from radical libertarians to the Obama Administration have criticized zoning regiments (in NYC and other cities) for being a major factor in the affordable housing crisis. 

The appeal to local elected officials is easy to understand – zoning can steer public policy in a certain, albeit ambiguous direction while enticing the private sector to pay for it.   It has the rhetorical promise of revitalization and the practical guarantee of profit – just the type of policy-win with little immediate political downside that an elected official covets.  

This also shows the central problem with modern zoning as a public policy tool.  It outsources too much public policy to the whims of the private sector and special interests and has many clumsy side effects that undermine other public policy goals.  

Zoning has become an incumbent-favoring, technocratic process that focuses on incremental adjustments rather than strategic objectives. To be fair, the latter is what the process was designed to do because urban planners, particularly in NYC, ignored public input and caused massive, lasting damage to many neighborhoods in the middle of the 20th century.  But rather than understand why we need zoning or question what we want zoning to accomplish, participants have lost sight of the larger opportunities it presents.

There have always been ‘natural zoning laws’ in every civilization dictated by the same impulse that drives real estate now – location, location, location. New York City became a trading powerhouse in the 18th and 19th centuries because it had a deep, safe harbor with a long coastline.  Industry naturally developed around the North (now Hudson) River and East River because there was quick, cheap access to shipping. Merchants and financiers centered close to the ports, which is why Wall Street formed where it did. Immigrants settled in the Lower East Side because it was close to port and trade jobs.  Wealthier residents built large estates further north to escape the smells and disease-incubating congestion of the downtown. You can trace any city’s development along similar economic activity driving locational decisions.

However, since Manhattan is an island, people started running out of space for building things.  That scarcity created more competition for land-use and more thoughtfulness about what should go where.  It also created the economic rationalization for taller buildings (more on that in our next section.)

This made New York City the first major city to enact zoning laws in 1916. Perhaps surprisingly, public health was the primary motivator and political justification. People recognized the risks to placing intensive industrial factories next to residential quarters, and they worried about newly created skyscrapers blocking out the sun and fresh air from vast swaths of city streets. The first zoning laws attempted to address these concerns by separating types of land-use and limiting the scale of a building on its lot. 

Our current zoning laws are based in on the 1961 plan, which firmly separated land-use into residential, commercial, and industrial areas. It gave some incentives for higher density in commercial and residential towers, but largely instituted low-density everywhere else. That means that much of the city outside of Manhattan and parts of Queens and Brooklyn, is low-density and car-dependent.  It means that virtually the entire the city is extremely segregated by land-use type, which has exacerbated racial and social segregation. It also means that much of our policy framework on zoning remains tied to 60 year old assumptions from when the city was still an industrial, blue-collar economy.

In short, we have a highly-technical, complex process built on outdated or entirely irrelevant policy thinking.  There have been some periodic reforms of our zoning laws, most notably with the introduction of the bottom-up ULURP process as a reaction to top-down urban renewal programs.  Mayor de Blasio’s experience with his Mandatory Inclusionary Housing and Zoning for Quality and Affordability plans show how difficult it is to even tweak the margins of the process.  But the plan also shows how lessons learned from the previous zoning mindset can create better policy today.

However, it is unlikely that there is enough political interest in writing an entirely new zoning plan for NYC.  The public and private centers of power in the city are too invested in the current process to willingly allow such a dramatic shake up.  Though the system seemingly allows for public input and can indeed slow down major developments, a highly connected and well-capitalized private interest can still get what they want in the end.  This type of gaming isn’t altogether shocking or even wrong. Preventing the process from working for a broader public good is.

If we could rewrite a 2017 Zoning Plan, what then would it look like? First, we would absorb the lessons of the 1916 plan – public health should be a major consideration of zoning.  Second, we would absorb the lessons of the 1961 plan – what type of public infrastructure are we designing to serve the city? We are a post-industrial city, so what does that require? Finally, we should think bigger than before and ask new questions – what do we want our city’s civic identity to be? The public good must stop being an empty rhetorical concept and become the starting point for anything in the built environment.

Here are just a few quick ideas that have either been suggested or should be suggested already:

Public Health

  •  Transit Oriented Development zones should have as-of-right double density within 15-min walking distance of the 470 MTA subway stations.
  • Density bonuses for giving funds or expertise to designated public projects for parks, hospitals, emergency services, or elderly services.
  • Inclusionary housing requirements expanded to include options for elderly, disabled, or homeless facilities.

Public Infrastructure

  • Community District quotas for public infrastructure – waste management facilities, MTA outposts, public schools, homeless shelters, etc.
  • Mandatory funding for climate resiliency to develop in potentially threatened neighborhoods.
  • Mandatory multi-purposing for public buildings – combining new schools with retirement centers, police facilities with social services, etc.

Public Good

  • Require mixed-use zones for commercial and residential developments, with small-business support bonuses.
  • Rezone existing areas for mixed use and encourage redevelopment of old infrastructure along mixed-use policies.
  • Minimum requirements for affordable housing units in every Community District based on census track per capital income and means-testing.

Zoning: The Phantom Menace or The Force Awakens?

NYC Re-zoning under Mayor Bloomberg (The Real Deal)

NYC Re-zoning under Mayor Bloomberg (The Real Deal)

The average New Yorker walking around their neighborhood probably has a general sense that the size of and relationships between buildings, streets, parks or other features have been organized by some rational structure - certain parts of the city have very tall buildings, other parts have single-detached homes for example.  

They would be right in the sense that, yes, we have zoning laws, but they would be wrong in assuming that that structure is as 'rational' as they would imagine, or as some policy makers would argue.

In this post, I will give a very brief overview of zoning laws and their history in NYC, but I will also try to provide the broader context of forces governing how, why, and when neighborhoods were built in the city to make a larger criticism of how we view and regulate the built environment.  The current orthodoxy and resulting regulations play a leading role in the affordability crisis that we're currently in. 

(And yes, I will explain my tortured Star Wars analogy.)

Virtually all major American municipalities (except Houston!) have some type of zoning laws designed to oversee land usage.  That's a pretty reasonable idea because you don't necessarily want a coke smelting plant parked next to an elementary school.  Well, there's nothing more American than resisting reasonable forms of regulation, so it wasn't until the Supreme Court ruled in Euclid, Ohio vs. Ambler Realty Co. (1926) that local governments were allowed to adopt regulations to separate land use.  This landmark case codified zoning as we now know it across the country. 

The Equitable Building (Daytonian in Manhattan)

The Equitable Building (Daytonian in Manhattan)

New York City, however,  got a head start on Euclid by passing the first land use regulations in the country with its Zoning Laws in 1916. The completion of the Equitable Building (above picture), a large full-lot skyscraper completed the year before, made many New Yorkers fear an Inception-like future of dark, narrow streets blacked-out from the sun.  The law created height and set-back limitations (resulting in the famous "wedding-cake" look of buildings from that era) and designated distinct residential and industrial zones. More importantly, it established the precedent that policymakers, and by extension the public (in theory), had a say over the built environment in the city. 

The laws were comprehensively updated in the 1961 Zoning Code which further defined height limits, introduced floor-to-area ratios (FAR), parking-requirements, and the inclusion of privately owned public space (POPS) for FAR bonuses, along with other items. (POPS would become famous in 2011 when Zuccotti Park, became the center of Occupy Wall Street.) 

Though there have been significant amendments over the years - notably in regards to allowing more community involvement with the formal creation of Community Boards in 1968 and the adoption of the public review process ULURP (see image below) in 1975 -  the 1961 laws are still on the books.  There have been some calls to create a new code to reflect the significant changes industry, transportation, and residential trends have undergone in NYC since the 1960s, while others have said the amendment process has worked to keep the 1961 Code relevant (including the Bloomberg administration, which rezoned of over a third of the city). 

The ULURP process (nyc.gov)

The ULURP process (nyc.gov)

This argument about the current Code is basically over semantics and misses larger questions: can a city be 'rationally' organized in the first place? Who defines what is or isn't rational?

Taking the 30,000 ft view for a second, governments pass laws that basically fall into two camps - reactive or proactive.  I concede that there is plenty to quibble about with this characterization, but it generally vibes with the "Two Liberties" dichotomy that there are positive liberties (freedom to do something) and negative liberties (freedom from something).

Examples of proactive laws would be the Morrill Act passed by Lincoln in 1862 laying the foundations for the modern public university or the National Aeronautics and Space Act of 1958 which created NASA.  These laws wanted to encourage actions and activities deemed to be in the public interest and had sweeping impact on society.  

For the most part though, governments, particularly local entities, pass reactive laws. An action or activity is seen to negatively impact the community, or parts of the community, and there is a movement to suppress or remove it.  Mayor De Blasio has gotten some heat for two such controversial issues recently in Times Square and Central Park.  

Zoning laws fall firmly into the reactive/negative liberty camp, which is not a bad thing at all, despite how loaded those words are.  City governments are much more closely linked to their constituencies and their quality of life concerns.

The problem is that zoning laws are inherently subjective - a 'proper use' of land will mean one thing to the person who owns the land, another to the person who wishes to develop it, and yet another thing to the people that live near it. So who should be able to decide? This tension is the lifeblood of a democracy and when institutions are properly organized to channel that tension, the result more often than not will be just and positive for the most amount of people. 

However, in reality, there are two glaring problems that distort this process - power and purpose.  It's no secret that well-funded entities or individuals exert an immense amount of power over the political process.  I won't get into the 'why' for now, but the 'how' impacts zoning considerably.  Whether it's by supporting sympathetic candidates, hiring highly-connected lobbyists to exert influence over legislation, or just knowing how the system works and how to exploit its nuances - if you have the means, you can likely get the outcome you want. It might take a while and cost you a pretty penny, but you can do it. Not everyone has that type of time let alone money, so it narrows the list of people who can benefit from the process.  

The second problem, purpose, is a comment on both the participants of the process and the process itself.  As I stated earlier, zoning is subjective, but the existing system places a veil of rationality over the zoning process that (1) overstates its accountability and transparency to the general public and (2) confines the parameters of the debate regarding what zoning can and can not accomplish.  

This veil allows the people that benefit from this process to maintain those benefits and reinforce the process.  I don't necessarily want that to sound as cynical as it might come off because it's more of an observation about operating within complex systems than anything else.  

But if you are a critic of the current zoning process, and for example, think that parking requirements for new developments are onerous and outdated, you might think that the zoning process is broken.  It might be, subjectively.  But objectively, the process is doing what it is supposed to be doing.  And because the zoning process is sanctioned with 'rationality' it can be very difficult to introduce concepts and ideas that are counter to the process. Inversely, it can be very difficult to resist or amend accepted concepts.

I only have to look outside of my window to see a famous example of this dynamic.  I live in Stuyvesant Town in the East Village of Manhattan, which was built during another affordability crisis in our history, the early 1940s, to house returning (white) WWII veterans.  Stuyvesant Town and its sister property Peter Cooper Village consist of 25,000 residents and 110 buildings over 80 acres.

Though ostensively a private development built by MetLife, the project was largely conceived and shepherded by Robert Moses, the 'Master Builder' of NYC who, though never elected to any office, dominated the development of the city for decades in the middle of the century.   He was able to muscle through changes in city and state laws that created tax abatements for MetLife to construct the buildings, turned over public land (including streets and schools) and enacted eminent domain for private use. 

This last point is important because there was already a neighborhood - the Gas House District - where they wanted to build Stuyvesant Town - full of warehouses, small businesses, and over 11,000 people. 

Clearing the Gas House District to build Stuyvesant Town (pcvstliving)

Clearing the Gas House District to build Stuyvesant Town (pcvstliving)

The plan was controversial even at the time particularly because it was to be segregated (which was later fought successfully by Lee Lorch and others) and because efforts weren't made to assist the existing residents who were being evicted.  Despite these legitimate public concerns, the plan was seen as a public good by those that mattered, passed by the Planning Commission, and supported by city and state officials.  The first tenants moved in in 1947.  

Though in the seven following decades Stuytown has rightfully come to be regarded as a symbol of middle class affordability in NYC, it is fair to question the efficacy of the original plan given the huge costs both economically and socially. If the desired result was to create sustainable affordable housing, can we judge the investment as successful? What types of alternatives could have been introduced to achieve the same or better result? 

Though the zoning process in NYC is vastly different today (indeed, most of the previously referenced reforms in the 1960s were in response to the excesses of the Moses era) the reality is still basically true - power defines purpose.  The governing orthodoxy behind today's zoning laws still reflects a top-down, 'big fix' view of the built environment that muddles the goals it's trying to achieve.

The current affordability crisis in NYC should make everyone pause and question whether that orthodoxy can actually achieve the clearly needed public good of housing affordability.  Is that even the point of zoning laws? The history of zoning would suggest that it is not.

I don't mean to say that zoning laws should be reimagined expressly for the purpose of affordability, many of the practical functions of zoning are necessary and serve the public interest as is.  But to formally acknowledge that affordability is a goal of zoning would likely spark the type of innovation and policy debates that are sorely lacking right now and were not present when Stuytown was built. 

That brings me back to the idea of reactive and proactive laws and my tortured Star Wars analogy.  Can zoning laws be proactive rather than reactive? Rather than narrowly and litigiously defining how land can or can not be used, or simply making room for high-end development by "up-zoning", can we step back, set up and codify broader public goals for the city through zoning? 

Think of zoning laws as the Force. As exemplified in the original trilogy, the Force is a spiritual energy that connects all living creatures and balances the universe. But in the soulless, uninspired prequels Lucas tried to rationalize the Force as a quantifiable presence of god damn midi-chlorians - nearly destroying the wondrous qualities that made it so powerful (while introducing embarrassing lapses of internal logic). That's what we have in NYC right now. 

The Force Awakens mercifully forgot any crap about midi-chlorians and embraced the spiritual awesomeness of the Force.  But it also introduced something that I think worked really well (but others disagree) - that the Force, as discovered and channeled by Rey, grew faster and more powerfully in ways not previously demonstrated in the original trilogy. The Force appears to have evolved through Rey.  

This is the Force that we need in zoning.  Taking the spiritual foundation of zoning and allowing it to evolve in new ways that work towards broader public goals, including affordability. This would truly democratize the process and allow new concepts and new actors to emerge - creating a legitimate balance of power and purpose in NYC.

The future of zoning (comicbookresources)

The future of zoning (comicbookresources)