The Hypocrisies and Troubles of Local Control

September 17, 2020 by Judi Pickell
Policy/Legislative

Given President Trump’s proclivity for lurching haphazardly from issue to issue, it might come as a surprise that the president has sustained a steady interest in federal fair housing policy over the past several months—or at least in its value to his re-election campaign.

It all started with a presidential Twitter rant about the perceived threat presented  by the Affirmatively Further Fair Housing (AFFH) rule approved by the Obama administration to strengthen the anti-discrimination regulations enacted by the Fair Housing Act of 1968. The president’s boasts about preserving the “Suburban Lifestyle Dream” by rescinding the AFFH have since been granted a more formal platform in the pages of the Wall Street Journal in an opinion piece co-authored by both President Trump and Ben Carson, secretary of the U.S. Department of Housing and Urban Development. According to this spate of presidential pronouncements, President Trump believes that the AFFH rule was a radical over-step of federal authority that will surely wreak havoc on suburban communities. (Jonathan Zasloff argued in a recent opinion for Planetizen that the AFFH amounted to far too weak a policy to either wreak havoc or deliver the fair housing benefits desired by advocates. Michael Lewyn expressed similar skepticism at the time of the rule’s adoption.)

Trump’s sudden interest in the Affirmatively Furthering Fair Housing (AFFH) rule seems to have been inspired by the writing of Stanley Kurtz, a columnist writing for the National Review, who has spent years railing against the AFFH as dangerous for its attempt to preempt local control with the long arm of the federal government. Kurtz introduced the idea that former Vice President Joe Biden would “abolish the suburbs” if elected, thus inspiring the sudden rise to campaign prominence for the esoteric field of land use regulation. In Kurtz’s own words:

[T]his rule uses the language of fighting discrimination to re-engineer Americans’ housing choices.  AFFH forces every municipality receiving federal aid to conduct a survey of its neighborhoods by race, ethnicity and income.  If the mixture is not to the federal government’s liking, changes would have to be made on pain of losing federal funding.  This would effectively strip local governments of their zoning powers.

Setting aside the hypocrisy of crying “social engineering” in response to the lukewarm reforms of one of the largest, most effective social engineering projects in human history, it must be acknowledged that Kurtz is correct in describing zoning codes as a resolutely local form of regulatory control (as thoroughly documented in the book Zoned in the USA: The Origins and Implications of American Land-Use Regulation by Sonia Hirt, the local control of land use is also a uniquely American invention). State laws very rarely supersede local zoning laws, although California and Oregon offer recent examples of states acting to preempt local land use regulations. Massachusetts might also soon take similarly preemptive actions to overrule local control of land use. Despite those few exceptions, most U.S. municipalities retain complete control over their zoning ordinance, and there is no federal law that controls urban land use.

One problem with basing an ideology on the protection of local control, as Kurtz as inspired the president to do, is how quickly some new issue will require state or federal preemption. Both sides of the aisle are guilty of local control-induced hypocrisy, whether the issue is plastic bags, red light cameras, affordable housing supply, or school desegregation. The Trump administration itself is guilty of falling in the trap of local control as ideology: HUD Secretary Ben Carson has repeatedly written and spoken on the need to loosen local land use regulations to expand property rights and spur development.

Another problem with basing an ideology on the protection of local control is how quickly that ideology devolves into baseless, exploitative fear mongering, like so many other areas of public discourse in recent years. For years now, Agenda 21, a set of recommended planning prescriptions crafted by the United Nations in the hopes of mitigating the impacts of climate change, has been held up as a boogeyman capable of cracking the foundations of the American way of life. Agenda 21 truthers have repeatedly hijacked legal legal planning processes in the United States. The consequences these conspiracies have on land use policy in the United States will be on display all fire and hurricane season, and in the housing and eviction crises that have only been exacerbated by COVID-19.

Then there is the reality that local control, as manifested by zoning codes, is just another form of government interference. If you believe that property rights are among the most fundamental rights granted to individuals in a free society, as many in this country believe, then a zoning code that restricts how property owners can use their land is one of the most personal and direct examples of government interference at work. In most places in this country, homeowners can’t build a little house for rent on extra space on their property. And property owners definitely can’t run a business, like a café or a small store, out of their homes and garages. The list of what property owners can’t do due to the restrictions of local land use control goes on and on. In almost every city, zoning codes allow only single-family homes to be built on the vast majority of properties in the city, according to a 2019 analysis by the New York Times. In Los Angeles, 75 percent of the residential property is zoned solely for a single-family detached home. In San Jose, that number is 94 percent. In Portland, it’s 77 percent. In Seattle, 81 percent.

Why are so many freedom-loving Americans willing to hand over their hard won property rights to be erased in one fell swoop by this deeply prescriptive and restrictive form of government control? Why are so many Americans willing to hand over the self-determination and the rugged individualism they hold so dear?

It’s hard to prove the exact motivation behind the collective decision to cede property rights to the government, but the effects of that decision are obvious and well documented: U.S. zoning codes have proven extremely effective in entrenching wealth in the white population, simultaneously excluding BIPOC communities from those same economic benefits. The consequences of this segregation have been tragic: BIPOC and low-income Americans are blocked from opportunities for economic advancement while also being exposed to the worst environmental conditions and public health outcomes the country has to offer, historical trends made tragically obvious once again by the patterns of death and economic destruction left by COVID-19.

Like so many Americans, when local control is regulation, President Trump is against it. When local control is segregation, President Trump is for it. Be careful when taking a hard line on local control: you might find yourself on the same side of the line with President Trump, or not.

By James Brasuell

Managing Editor, Planetizen

https://www.planetizen.com/features/110552-hypocrisies-and-troubles-local-control