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Zoning

7 min read

Part of Housing and land.

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Every episode (3)

Who argued it

Christian Britschgi · Lawrence J. McQuillan · Randal O’Toole

Rent Control · Housing Policy · Property Rights · Economics · Regulatory Capture · Urban Planning

Background: Zoning laws

Tanner: zoning as a state and local barrier to the poor

In the 2019 episode on libertarian anti-poverty policy, Bob Zadek spoke with Michael Tanner about The Inclusive Economy: How to Bring Wealth to America’s Poor. Tanner said that many of the problems affecting the poor are at the state and local level rather than federal, and he named zoning laws that prevent the building of affordable housing and land-use laws that drive up rent for poor people Libertarian Anti-Poverty Policy (2019). He placed zoning in a list that also included police forces and enforcement of the criminal justice code, school systems, and licensing boards, and he noted that between 25 and 30 percent of all jobs in America require permission from the government to practice one’s occupation.

Zadek’s framing was that such programs have goals unrelated to poverty but produce the side effect of making it harder for individuals to work out of poverty. Tanner’s concrete illustration in the episode was not zoning itself but cosmetology licensing in Louisiana: a lengthy course, a textbook, a test given only twice a year and only in Monroe, a two-day test, a fee, and a six-month wait on failure. He described such requirements as designed to protect the monopolies of those already in the profession, and he said they have a long and racist history, a sentence the excerpt leaves unfinished.

Later in the same episode, Zadek proposed that programs increasing dependency must yield to those increasing self-reliance, and Tanner agreed, saying that spending money on the poor papers over guilt at not fixing the real problem. Among the things he listed as papered over were the privilege used to keep poor people out of neighborhoods through zoning laws, alongside police abuse and protecting teachers’ unions at the expense of educating poor children Libertarian Anti-Poverty Policy (2019).

Intent, result, and the persistence of segregation

The December 2020 episode, on a libertarian theory of anti-racism, returned to zoning with the same guest. Zadek asked whether the distinction between intent and result matters, and Tanner answered that intent to harm is more evil than accident, but that from the receiving end it does not matter whether the car ran you over by accident or was aimed at you. He added that people by and large do not intend to be racist.

Zadek offered Jim Crow laws in the South as an example of intentional racist laws, with whites-only drinking fountains, then asked for a law not obviously intended to punish one race and elevate another but having that effect. Tanner’s example was zoning. He described Levittown as the famous first suburban community, whose deed was explicit in prohibiting any person of color from living there, and said that many communities in California and elsewhere were explicitly segregated in the same way. Those laws against blacks living in suburban communities have long since been thrown out, he said, citing the Fair Housing Act and other laws that made the covenants unenforceable where they still exist. What remains is zoning: people who got in with government help, from a government that was explicitly blocking African Americans from loan programs, bought houses whose values rose over time and with the type of zoning that limited building. African Americans now simply cannot afford to move into those suburbs, so huge racial segregation in housing persists, no longer from an explicitly racial motive but from a neutral law in terms of zoning that still has the same impact Towards a Libertarian Theory of Anti-Racism (2020). The excerpt breaks off at the heading “The Question of Reparations,” and Zadek’s line after it is empty.

Britschgi: zoning as a land cartel and the Houston exception

The February 2023 episode, “Free to Build,” featured Christian Britschgi. Zadek pressed the argument that California’s overuse of zoning is itself market forces through foot voting, since people who find the state too expensive leave. Britschgi rejected the characterization, saying he would not consider it market forces at all and that almost any government restriction could be justified that way. The decisions, he said, are made by people already there, while people who would prefer less restrictive rules and cheaper housing cannot afford to live there and therefore get no say.

On open space, Britschgi said he asks no one to take his aesthetic judgments at face value; his objection to urban growth boundaries and agricultural zoning that prevents new housing is that they tell an owner he may not decide for himself, putting rules on his property rather than letting him choose whether to keep it as housing, farm it, or subdivide it. The alternative, he said, is a few environmentalists in Sacramento drawing lines on a map Free to Build (2023).

Zadek distinguished zoning changed after purchase, which he called regulatory eminent domain and an obscenity, from buying land already zoned, where the price reflects the impairment. Britschgi agreed there is something to the distinction but noted that at one point everyone had zoning imposed on property they already owned; the country used to have no zoning laws, and states and cities passed them and made them more restrictive over time. Zadek supplied the exception: Houston. Britschgi confirmed that Houston does not have proper zoning laws, nor do a couple of other cities around Houston and some very rural communities, while by and large every city and suburb has zoning, every state allows localities to zone, and California adds a ream of state restrictions on top. His analogy was the taxi medallion: owners who bought into the system complained when Uber undercut the price of the privilege, and maintaining that price required sticking with a government-enforced cartel of taxi medallions — the same with zoning, where sparing owners who bought under one set of rules requires enforcing a government land cartel. He added that when most cities passed big downzonings in the ’60s or ’70s, capping how much housing Los Angeles, San Francisco or elsewhere would allow, growing demand pushed against those caps, so the cost of a taxi ride and the cost of a house rise the same way.

Across episodes: continuity, not development

Zoning appears in the 2019 anti-poverty episode, the 2020 anti-racism episode, and the 2023 “Free to Build” episode. Michael Tanner advanced it in the first two, as a state and local barrier to affordable housing and as a neutral law with a segregating result; Christian Britschgi advanced it in the third, as a government land cartel overriding owners’ decisions and as the near-universal regime from which Houston is the exception. The episodes show no development in the argument between the earlier and later treatment, only the same objection restated by different guests in different contexts.

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