Tag: Exclusionary zoning

Reader Comment on Last Week’s Article About Racism & Zoning

    Your article was very interesting and timely as we must be reminded of our country’s systemic racist policies that contribute to the discord we experience today. I have a couple of other examples. 

    First, the FHA was the driver for much of the single family homes constructed in suburbia during the ’50s and ’60s.  Its underwriting policies in the early days, mandated that “the neighborhood be homogeneous (seg-regated), with that homogeneity preferably assured through racist restrictive covenants, for which the FHA helpfully supplied forms,” according to Michael Carliner, Development of Federal Homeownership Policy, as quoted on page 96 of Concrete Economics by Cohen and DeLong in 2016 . 

    In addition, I’ve read, but cannot remember the source, that the VA lending policies were similar. As a consequence, black GIs returning home, could only get loans for properties located in black communities (inner city residences) and thus were not able to build up the equity in their homes like the white GIs who were able to buy new homes on the large lots in suburbia.

     This “homogenous neighborhood” requirement in federal lending practices prevented the mixing of the races in modern America, contributing to the racial divide we experience to this day.                          —Michael Nosler

We Can All Learn From Studying Racism’s Role in the Evolution of Local Zoning

No one can deny that racism has played a role in housing, as it has in virtually every aspect of society since the founding of our country. Like me, however, I bet you’ll learn some things you didn’t know from this study of racism in zoning written by my friend, Don Cameron. While this study is of the City of Golden, it would be fair to say that it reflects the evolution of zoning throughout the country. Click here for Don’s full report with artwork, photos and footnotes.

A History of Golden Zoning

Golden Colorado circa 2020 has zoning that is best described as Euclidean, named after a court case in Euclid, Ohio. Euclidean zoning prescribes various areas in town to have various uses by right, and other uses that can be obtained by special permit.

Prior to that court case in Ohio, it was not clear that the government had a role in regulating land use, and individual landowners could pretty much do what they wanted. But in 1922 the Supreme Court ruled that municipalities had the right to regulate land use.

Golden’s history of zoning was initially one of mutual agreement between the town’s settlers and the city in laying out streets, creating easements for streets and utilities, but generally leaving land development to the individual owners. This sort of planning resulted in building on some lots that don’t meet current lot minimums, a variety of housing types and a mix of commercial and residential uses in some areas.

From 1954 onward, though, this mix of uses did not fit neatly into the districts that were created. Because of the mix of use types that already existed, some areas were zoned as commercial even though they had a large proportion of housing that was built as single family homes.

Other areas were zoned for higher density in anticipation of growth that in some cases still has not come. Later developments were zoned planned use development (PUD), with uses identified that were specified on the plats and may have included mixed use.

In parallel to this history there were also restrictive housing policies that were in place in Jefferson County, including Golden. Specifically, redlining was a practice put in place at the federal level by the Home Owners Loan Corporation in 1938.

Redlining defined areas where federally backed loans could  and could not be obtained. Golden itself had no redlining map, but let’s look at Golden’s history.

From the 1880s and into the 1920s property owners could pretty much do what they wanted. There were no explicit covenants preventing Blacks or non-Caucasians from buying or building in Golden. However, the 1920s also saw our government filled with KKK members and sympathizers and a reduction in Black (Negro at the time) residents in Jefferson County.

While Blacks in the county and city were few in number in the 1920s, nonetheless the KKK burned crosses on South Table Mountain’s Castle Rock formation above where Coors’ tourist parking lot is now.

There was a measurable racist element in the population, and there was not a welcoming environment. The plats were already written, and the residential land use defined, so there was little “need” to be racist in zoning because there was no demand (that is, few black people lived in Golden).

This “lack of need for racist/exclusionary zoning” changed, however, in the late 1930s amid the boom leading up to World War II.

Again, land use at the time was mostly protecting individual property rights. While the Supreme Court had ruled that cities could control land use, there was a very hands-off approach to this. So the “law” was on the side of homeowners.

Starting in the 1920s and into the 1940s it was common for people in many areas of Jefferson County to say they’d only sell their property to those of the Caucasian or other non-Negro races.

The courts backed up this right because they were protecting homeowners’ use of their land and had no civic duty to prevent this discrimination. Blacks were excluded from being shown properties in these restrictive areas, and. if they tried to purchase them, they might have it taken away soon after.

In 1942 there was the case of a Black family trying to build a new development and victory garden near what is now Boyd Street. The family said they would put in all the utilities required to government code. Still, white citizens of Golden protested. The following article appeared in the October 22, 1942, edition of the Golden Transcript:

Citizens Protest to City Council

    A large number of citizens appeared before the city council Wednesday evening, and stated that a group of colored people had taken possession of the land recently purchased by them east of the Clark’s Garden addition, within the city limits of Golden, and were apparently staking out some proposed building sites. These citizens protested to the city council the starting of a colored settlement in Golden.

It was pointed out in the meeting that the sale of the property had been approved by the county court on September 24, and that the purchase price for the 30-acre craft was $1,500, not including some legal and abstract of title cost…

The article went on to say that at the mayor’s direction, a citizen’s committee was formed to negotiate with the FHA to not allow this sale to go through and not fund it, claiming the cost of extending utilities would be burdensome. One of the citizens appointed to this committee was Casper Bussert.

Golden had few areas that were not platted, but when a new plat was put in for the Sunshine Park Addition in 1944, by this same Casper Bussert, he added a deed restriction limiting ownership to Caucasians.

While this would seem to violate the 14th Amendment, the Supreme Court had already ruled that the 14th Amendment was about states not discriminating based on race, but was silent on individuals’ ability to discriminate. However, in the late 1940s the NAACP and others started pushing back on these covenants using the following argument: If a black person were to buy a restricted property and then the state were to enforce the covenant, that would constitute a violation of the 14th Amendment, which eliminated slavery and gave Blacks the right to buy and own property.

In 1948 the Supreme Court ruled that these types of covenants were no longer enforceable. Almost immediately, and certainly by 1950 one sees a complete change to the covenants created in Golden and surrounding areas. Rather than explicitly restricting an area to whites, there were new restrictions excluding those without access to capital. Enter classism.

Even though redlining was no longer permitted, there were (and are) limits on Blacks’ ability to get loans on favorable terms. Some loans, for example, were interest only for the term of the loan, so one did not gain any equity until the loan term ended. Failure to make even one payment could result in “owners” losing their homes with no equity.

When new restrictions were put in place by the FHA, they targeted people without access to loans. An additional clause that targeted families with kids was the Nuisance Clause, which limited activities based on the opinion of the architectural control committee.

R1 (single-family) zoning, as laid out in the city code, shows a direct evolution from racist covenants to restrictive covenants to exclusionary zoning, all of which kept housing out of the hands of Blacks.

The legacy of this is the noticeable and persistent wealth gap in this country. Blacks, by being excluded from homeownership, have not been able to build wealth, escape blighted areas, or enjoy integrated schools. Because school funding is typically based on property taxes, school districts are  self-segregated by wealth and thereby race.

In summary, Golden’s history follows the narrative of the country with respect to race. Land planning and zoning may be silent on race, but the effect of both planning and zoning continues to exhibit, in its end result, the heritage of systemic racism, to the detriment of Blacks in particular.

Email response received from Michael Nosler:

Jim, as always, your article was very interesting and timely as we must be reminded of our country’s  systemic racist policies that contribute to the discord we experience today.  I have a couple of other examples.  First, the FHA was the driver for much of the single family homes constructed in suburbia during the 50s and 60s.  It’s underwriting policies in the early days, mandated that “the neighborhood be homogeneous (segregated), with that homogeneity preferably assured through racist restrictive covenants, for which the FHA helpfully supplied forms.” Michael Carliner, Development of Federal Homeownership Policy, Housing Policy Debate9,no.2(1998)at 299-321.  As quoted in Concrete Economics by Cohen and DeLong 2016 at p.96.  In addition, I’ve read, but cannot remember the source, that the VA lending policies were similar.  As a consequence, black GIs returning home, could only get loans for properties located in black communities(inner city residences) and thus were not able to build up the equity in their homes like the white GIs who were able to buy new homes on the large lots in suburbia.

This “homogenous neighborhood” requirement in federal lending practices prevented the mixing of the races in modern  America, contributing to the racial divide we experience to this day.

You’ve Heard of NIMBY (‘Not in My Backyard’). You’ll Be Hearing About YIMBY in 2021.

One of the many bills passed by the Democratic House which Senate Majority Leader Mitch McConnell has not allowed to be acted on in the Senate is the YIMBY Act. If, as may well happen, the Democrats take control of the U.S. Senate in this year’s election, that act could become law next year.

The YIMBY Act (HR 4351) was bi-partisan, co-sponsored by Democrat Denny Heck of Washington and Republican Trey Hollingsworth of Indiana. It was passed on a voice vote by the House of Representatives on Mar. 2, 2020. Here’s a link to the full text of HR 4351.

Here’s how the act is described and promoted at www.UpForGrowth.org:

The Yes in My Backyard (YIMBY) Act encourages localities to eliminate discriminatory land use policies and remove barriers that prevent needed housing from being built around the country.

The YIMBY Act achieves these goals by requiring Community Development Block Grant (CDBG) recipients to report periodically on the extent to which they are removing discriminatory land use policies and implementing inclusive and affordable housing policies detailed by the bill.

The YIMBY Act increases transparency in land use, zoning, and housing decisions; sheds light on exclusionary polices; and ultimately encourages localities to eliminate barriers to much-needed housing.

Background:

According to Up for Growth’s “Housing Underproduction in the U.S.” report, the United States has underproduced housing by 7.3 million homes from 2000 to 2015.

Exclusionary land use policies — including zoning and density restrictions, onerous parking requirements, and other burdensome development regulations — drive a severe housing shortage and affordability crisis.

The “Missing Millions of Homes” report from the New Democratic Coalition shows that the cost of shelter has been the single largest increase in household budgets in the last 15 years and that the median U.S. family now spends 42% of its income on housing.

Housing underproduction also increases cost of living for families, inhibits geographic mobility, burdens both renters and buyers, and stifles economic productivity. By one estimate, from 1964 to 2009, our national housing shortage lowered aggregate economic growth by 36 percent.

Many of these land use policies are rooted in racism and classism. Their continued existence perpetuates housing discrimination and contributes to the housing affordability crisis affecting large parts of the United States.

Legislative Solution:

The YIMBY Act increases transparency and encourages more thoughtful & inclusive development practices by requiring localities to fully examine and disclose their housing policy decisions.

The bill provides localities a framework for smart policymaking and regulatory practices, thus promoting more inclusive development principles.

The YIMBY Act is an important first step in decreasing the barriers to smart, inclusive growth and reducing the negative and cumulative impact of exclusionary housing policies. It is also a way to clearly demonstrate that the federal government takes seriously the challenges created by exclusionary zoning.

This proposal has not escaped the attention of conservatives, who consider it an attack on suburbia, primarily by eliminating single-family zoning. Allowing greater density and making housing more affordable means to them the introduction of lower-income and therefore racially diverse populations into communities which are historically white and upper-middle or upper income neighborhoods. It’s worth noting that it’s an argument that does indeed divide conservatives from liberals and, because of how it is being promoted, will be a factor in this year’s election.

However, we should remember that zoning laws are matters of local debate and enactment and cannot be forced upon localities by the federal government. That’s why the YIMBY Act only asks localities to consider the implications of their zoning decisions. Single-family zoning will only be modified or eliminated gradually if at all over time and only by a vote of locally elected representatives on city councils and county boards of commissioners. Voters would be wise to recognize fear mongering on the subject for what it is and to consider the underlying motives.

Moreover, it is inconceivable that an established and fully built out subdivision, especially one with a healthy housing stock under 30 or 40 years old, would see any effects from zoning changes. Instead you might see the legalizing of ADUs (Accessory Dwelling Units), which are already popular in many jurisdictions. These units can be in walk-out basements or above detached garages, and provide a great solution for modestly increasing a neighborhood’s and city’s density.

What we are already seeing in the older communities with pre-1970 bungalows is the scraping of isolated homes, making way for attached townhomes. Again, this is only done by the enactment of zoning changes by your elected officials who are not going to act in opposition to their constituents’ loudly expressed viewpoints.

No matter who is elected on the national level or what legislation is passed, housing will always be an expression and result of very localized democratic control — that’s democratic with a small “D.”

Moreover, the YIMBY Act would only apply to localities which accept Community Development Block Grants, for which no community needs to apply.

As the Housing Crisis Deepens, Zoning Laws Are in the Crosshairs

In December 2018, Minneapolis made news when it abolished single-family zoning. That began a nationwide conversation about the use of zoning laws to restrict growth and density at a time when housing affordability was worsening and homelessness was increasing.

One of our broker associates, Chuck Brown, attended the National Association of Realtors convention last November in San Francisco. I had attended the same convention there several years ago. I hadn’t noticed many homeless people on the streets back then, but Chuck reported that it was way out of control now, with the streets overcrowded with homeless people.

You, like me, have probably followed the coverage of homelessness in Denver, with that city passing an urban camping ban, which was ruled unconstitutional by a lower court but is still being enforced pending an appeal by the city. It could go all the way to the Supreme Court.

The conversation over zoning created by Minneapolis 13 months ago is growing louder. That’s because the history of zoning is one of intentional discrimination. In researching this topic, I read a Fast Company posting on the history of zoning in San Francisco.. After the 1906 earthquake, the Chinese population there was targeted by zoning changes designed to promote and protect white enclaves. This was long before there were federal laws making discrimination based on race or national origin illegal.

That Fast Company article included the following detail regarding the role of the mortgage industry: “In 1934, as part of President Roosevelt’s New Deal, the Federal Housing Administration (FHA) was established to insure private mortgages. The FHA’s underwriting handbook included guidelines that pushed cities to create racially segregated neighborhoods and encouraged banks to avoid areas with ‘inharmonious racial groups,’ essentially meaning any neighborhood that wasn’t exclusively white.”

Another New Deal program to help homeowners threatened with foreclosure to refinance their home with low-interest long-term mortgages, provided lenders with “safety maps” which used red shading for risky areas which were under “threat of infiltration of foreign-born, negro, or lower grade population.”  This is the origin of the term “redlining,” and the practice wasn’t outlawed until the Fair Housing Act of 1968.

Last week I attended a meeting of the Group Living Advisory Committee in Denver’s municipal building, where they are discussing a zoning amendment which would dramatically increase the number of unrelated persons who can live in a single family home. You can expect this proposal to arise in suburban jurisdictions, too, even if they don’t follow Minneapolis in getting rid of single-family zoning altogether.

I’ll be reporting again as this conversation evolves. Don’t shoot me. I’m just the messenger.