I've been thinking about expiration dates for zoning. I was prompted by Austin's draft comprehensive plan. There are things I like about the plan -- it advocates increased density on Austin's primary urban corridors, for example. But there’s also stuff to dislike. Such as this:
I’m sure most American municipal comprehensive plans contain one variation or another of the principle, “Protect existing neighborhood character.” Austin is no outlier here.
But this seems to me to be very bad policy for a long-range plan. Zoning’s fundamental problem is that it stifles change and adaptation over the long run; a long-range comprehensive plan should push back against that tendency rather codify it.
We have lots of central neighborhoods that were initially developed as fairly low-density single-family neighborhoods in the first half of the 20th century. That made perfect sense when Austin was young and small. But now that Austin is mature and large, it would make sense to redevelop some of these neighborhoods at much higher densities. The need will be even more compelling in 30 years, after Austin's added another 400,000 or 500,000 people.
The people who live in these neighborhoods presumably like them just the way they are, of course. But why do we give that so much weight? The people who would live in the redeveloped neighborhoods would like them that way, too (maybe more), and we’d get the collateral benefits of cheaper housing, shorter average commutes, better transit, and so forth.
The difference between current and future residents is expectations. The people who live in the neighborhoods today had an expectation (justified to one degree or another) when they moved in that the city would use its zoning power to maintain the status quo. If the city rezoned their blocks of little bungalows to West Campus-style mixed-use apartment buildings, it would violate their expectations. Not only would they perceive that to be unfair, a lot of other people would as well (especially single-family homeowners in other neighborhoods). A major upzoning thus would not only draw organized opposition from the neighborhood residents, it would lack much support among the rest of the population.
But this creates a self-perpetuating cycle of expectations. At any given moment in time, we only have an interest in protecting the expectations of existing residents -- it doesn't even make sense to talk about the expectations of people who have not yet invested in the neighborhood. But households don't move in and out of neighborhoods en masse; they move in and out one at a time. Each new householder moves in under the umbrella of the guarantee we've extended to the existing residents, believing that he too is moving into a neighborhood that will be preserved as a single-family neighborhood. And so these implicit guarantees are extended serially, one household at a time, and thereby preserved and perpetuated for decades, even as the neighborhood's population churns, the city changes around it, and maintaining it as a single-family neighborhood makes ever less sense.
We need a mechanism to protect the expectations of existing residents while conditioning future residents to expect change.
One way to do that might be to put an expiration date on zoning. Pick a date well into the future, say March 9, 2032, and declare that the neighborhood must be rezoned to its best and highest use on that date.
By putting an expiration date on the zoning, we would control the expectations of future residents. People who moved into a neighborhood knowing that the zoning was about to expire would not have a reason to complain when the zoning expired; they should have factored the timing of that event into their decision to settle in the neighborhood.
But by postponing the rezoning for 30 years, we would protect the expectations of almost all of the existing residents. To a statistical certainty, almost all of a given neighborhood’s current residents will be gone within 30 years. Most households in Bouldin Creek (census tract 13.05), for example, moved to the neighborhood within the last five years. Less than 10% of the households have been there longer than 30 years. The pattern was the same in 2000 – most households had lived in the neighborhood less than five years, and less than 10% had lived there more than 30 years. Most people should recognize that they will live somewhere else in 30 years. But there's nothing magical about 30 years. We could rezone in 40 years. Or 50. There is a “long run” in which all of us should be indifferent to the future zoning of our neighborhood.
The key here is that the commitment to upzone on the appointed date (if upzoning is warranted) must be credible. If everyone believes that the city council will blithely retain the existing single-family zoning regardless of market demand, then the rezoning will not affect any one's expectations.
This is tricky, and I’m still thinking through how this might work. It would require, at a minimum, that the obligation to rezone be imposed by the Legislature: the exercise of zoning power is a legislative function, and current city councils cannot fetter the legislative discretion of future city councils.
The standard must be reasonably objective. I'm using "best and highest use" as a stand-in; there's probably a better formulation. It likely would require enforcement by a court, which raises a whole set of issues. Courts don't have much experience evaluating whether a particular comprehensive plan or zoning scheme is the "best and highest use" of land. There'd need to be some presumption in favor of an upzoning. Courts would need clear guidance right away so no one has to wait 30 years for them to figure out the standards. Then there are practical issues such as standards of proof, promptly resolving lawsuits so the neighborhood's zoning is not left in limbo, and avoiding nuisance lawsuits. Like I said, it's tricky.
But I believe that if "rezoning day" were widely perceived to be a credible commitment, then a lot of change would happen by consensus. Most neighborhoods would probably be due some sort of zoning adjustment after 30 years. How would we know which neighborhoods would be upzoned to a higher intensity? I'm not sure. But we'd have 30 (or 40 or 50) years to figure it out. That is a long time for a consensus to emerge.
Note I'm not proposing that the council's legislative zoning authority be circumscribed except on "rezoning day." Developers would continue proposing upzonings between rezoning dates. The market demand would, as it is now, be a good guide to which neighborhoods should be upzoned. That market demand would help develop the consensus.
By recalibrating expectations, mandatory rezonings would also permit more gradual change, I think, as developer try to jump the gun. Imagine a neighborhood at "rezoning day" minus one year. Let’s say there’s a general consensus that the neighborhood will be upzoned to accommodate a lot more mixed-use multifamily. A developer who petitions for a zoning change to build a mixed-use multi-family project a year early would likely to draw much less resistance from the neighbors, who would recognize that the zoning will be changing in a year anyway. This in turn would reinforce the expectation that the neighborhood will be rezoned from single-family to multi-family mixed use. But the same phenomenon would occur at "rezoning day" minus two years. And "rezoning day" minus three years. And so forth. Residents would apply a sort of discount rate to the potential harm from any change. This means resistance to change would remain very high at the beginning and would gradually diminish as the rezoning approaches.
I admit that a mandatory rezoning day woud likely harden resistance to change early in the cycle. Homeowners would have an incentive to fight early signals that the market prefers a different use for their neighborhood. They might perceive that a proposed rezoning, if granted, would later be used as evidence that their neighborhood should be upzoned. But I do believe the zoning dynamics would be different. Neighborhoods would have less incentive to cooperate. Mandatory rezonings would not necessarily create a zero sum game, but it would be close: because of the finite demand for dense multi-family, if your neighborhood is upzoned, my neighborhood is less likely to be upzoned -- and it might dawn on me that your neighborhood really would make a lovely spot for that apartment complex.
I'm still thinking this through. Guaranteeing some sort of change in 30 (or 40 or 50) years seems like a weak solution to zoning's rigidity, I know, but it's better than what we have now. In fact, the longer the city preserves a neighborhood as single-family, the more likely it is to reach the "historic" threshhold, squelching any future chance for change.