Programming Note: My first article for D Magazine, a hard-hitting look at what they don’t want you to know about our fella’ Big Tex, was released online last week. Check it out here! Expect more of me to come in D, and I look forward to still sending out the newsletter here as well.
In the hallowed pages of this blog, usually when I am discussing zoning it is some specific case or controversy with an upcoming vote, like recent fights in Oak Cliff or Preston Hollow, or whether our existing zoning code allows for data centers at all and whether it should. The stories we tell about zoning are fairly one-dimensional: one person wants to build something and another person would rather they didn’t.
Today, there is no motion on the floor and no agenda item to approve. I want to talk about how zoning is both a great deal weirder and, despite our seemingly constant debates, actually a great deal less examined than it should be. As a city, we’re going to talk about zoning a lot over the next several months (hurray!), as staff is embarking on a top-to-bottom rewrite of the city’s entire development code. This week and next, I just want to start with a foundation for how and why we have the rules we have today, before we get to what the rewrite should say and why.
If you’re like me and grew up anywhere near a computer in the 1990s, you learned how a city works in a video game made by a man named Will Wright. SimCity let you build a city by first handing you three crayons. Green for residential, blue for commercial, yellow for industrial zones. You painted zones on the map, the little Sim citizens built their own buildings and moved in. If you put the yellow zone too close to the green, the green got angry and left. The lesson absorbs quickly. A city is a coloring book, and some colors do not touch.
Zoning wasn’t just a choice you made in the game. It was the game. To the surprise of absolutely no one who has read this blog for very long, I played a lot of SimCity growing up.
I point all of this out because the SimCity version of the world is roughly how many of us still think a city works. Paint lines on a map, and a city of a million people can emerge out of the ether. Zoning feels less like one possible policy choice among options, and more like the operating system of reality, or a law of nature, somewhere between the speed limit and the weather.
It is why the existence of Houston reads almost like a glitch in the matrix. The fourth-largest city in the country has no zoning code at all. In spite of that fact, it has yet to slide into the Gulf of America. If zoning were a law of nature, Houston would be its black hole, some place where the laws of space and time cease to bind us. Instead, it is a city with traffic and good Mexican food, same as the rest of Texas.
So, if zoning is not Newton’s fourth law, where exactly did the zoning game come from, and who decided we all had to play it?
In 1926, the U.S. Supreme Court heard the case Village of Euclid v. Ambler Realty. Euclid was a suburb of Cleveland that wanted to keep heavy industry away from residential areas, so it drew up a zoning ordinance. Ambler Realty owned sixty-eight acres directly adjacent to a railroad, which had been chopped up into several distinct zoning districts without its consent, most of which allowed only residential. It contended the zoning ordinance made the property near-worthless and undevelopable. It sued the village in federal court, seeking an injunction against the ordinance, arguing that it took Ambler’s property without due process or compensation, in other words, that it was unconstitutional. Euclid instead contended this was a very ordinary exercise of the village’s police power: not in the sense we would use the word ‘police’ today, but its ability to regulate public health, safety, morals, and the general welfare.
The trial court agreed with Ambler Realty and struck down the village’s entire zoning ordinance, writing that the argument for zoning rested “both on a mistaken view of what is property and of what is police power.”
On appeal, the Supreme Court eventually reversed that decision in a 6-3 ruling. Justice George Sutherland wrote the majority opinion that solidified the notion of zoning within our constitution, and in the process made the modern American city legal. He justified the whole zoning arrangement by an analogy to nuisance. A nuisance, he wrote, “may be merely a right thing in the wrong place, like a pig in the parlor instead of the barnyard.” However, he importantly limited the concept, saying zoning ordinances “must find their justification in some aspect of the police power, asserted for the public welfare.” Justice Sutherland himself cashed in on that warning less than two years later, overturning a zoning ordinance in Cambridge, MA, that the court unanimously found had no “substantial relation” to the city’s police power or health and safety.
In any case: A right thing. A wrong place. That is the founding logic of what came to be known as “Euclidean” zoning, named after the town in Ohio, not the Greek mathematician. There are pigs, and there are parlors. Zoning exists to keep the former out of the latter. The slaughtering house, the steel foundry, the leather tannery, all the things that stink and smoke and grind, can be kept at a distance from the rooms where children sleep.
Nobody wants a hog rendering plant sharing a fence with a kindergarten. Separating genuinely noxious uses, ones with real health and safety issues, from genuinely vulnerable ones is a public good, same as keeping the air or water clean, or keeping streets safe and writing speeding tickets. A local city government, not the state or the Feds, is probably the best-equipped entity to manage the process, where local elected officials are most accountable to the property owners affected by these tradeoffs between safety and property rights. That is the whole argument for zoning from first principles, and it is a hard one to argue against.
The trouble is everything that happened after zoning won that argument. The pig-in-the-parlor logic got stretched, year by year, ordinance by ordinance, until it was no longer sorting the harmful from the harmless. It was more often sorting the harmless from the harmless, in enormous legalese and detail, and with a completely straight face.
Consider how Dallas, until very recently, regulated the places where we can go out for a drink.
The city’s development code does not contain a single category for “a place where adults go to consume alcohol.” It contains several. A bar was one use. A microbrewery was another. Commercial Amusement (Inside) is the technical term for what a bar became if you added a dance floor.
Each was a separate legal species with its own paperwork and, crucially, its own zoning requirements. Those zoning requirements regulated “off-street parking,” the business’s obligation to provide parking spaces, with inordinate levels of detail. For every 1,000 square feet of bar, you needed to provide 10 parking spaces, double what other retail uses needed. Unless you were a microbrewery. Then you needed 10 parking spaces for every 6,000 square feet of bar and more still for the working areas. Add a dance floor, and now you’re adding back a parking space for every 25 square feet of disco ball-lit vinyl flooring, on top of the parking requirements for the bar area. A parking space is usually around 175 square feet, so this means that your dance hall’s parking lot was at a minimum seven times larger than the dance floor itself.
One consequence of these rules was it was harder to build all of these things: bars, dance halls, wine bars, or breweries. For some, however, that was ostensibly the point of the rules, not a bug. Bars and dance halls have people at them drinking in the late hours, who could stumble out into the night, or start a fight, or be unruly, loud, or needlessly Texan. Surrounding bars with a sea of parking seven times larger than the use itself meant there were precious few places in the city you could actually find enough land to put them in the first place. When you did, they would be buried in a parking lot, far away from neighbors. Because the parking requirements were double that of other retail, it also meant in the city’s many retail centers and strip malls, the existing parking lot was likely not large enough to see a nail salon or bookstore turned into a new saloon or watering hole.
The point was ostensibly never the parking. The point was fewer bars.
You could imagine a city regulating drunkenness, fighting, or noise with laws about drunkenness, fighting, or noise. We could keep the good parts of bars and breweries, the nightlife and the entertainment and the gathering space and the tax revenue, while regulating only the externalities, the costs unwillingly paid by others. You do this by aggressively policing bad behavior if it occurs, but you do not start by assuming every bar will create these issues, you respond to them if and when they occur. Instead, we threw the baby out with the bathwater, and decided the city was better off having fewer and more expensive-to-build bars or entertainment venues.
Further, I’m no expert, but I’m willing to stick my neck out a little here: the correct number of people who should drive themselves home from a bar is zero. Of all the ways we could have chosen to manage where bars were built in this city, we perhaps chose the one that amplified drunkenness’s worst externality: drinking and driving.
Over the years, this became the recurring pattern. Zoning became a blunt instrument used to solve other policy problems, managing noise and revelry, instead of preventing adjacency of truly incompatible and noxious land uses. Zoning slid from keeping the pig out of the parlor to refereeing whether your IPA was being consumed at a bar or a microbrewery, and how many parking spaces that would require. Remember: zoning is at its most defensible when the city is regulating health and safety issues. Tell me what health and safety issue we are regulating by giving people more parking places to drive drunk home from! Zoning changed from being a shield against real harm into a thousand-page manual on the highly regulated shape of ordinary life, most of it written before the moon landing, but most importantly, almost never required to justify itself or to have its tradeoffs examined.
Drive south and past a couple Buc-ee’s, and College Station shows what zoning can do when it is aimed at people instead of dance floors. Since 1939 the city has had a rule on the books it calls ‘No More Than Four’: no more than four unrelated people may occupy a single-family house. It had started policing and enforcing the ordinance aggressively in recent years, going as far as sending officers around town checking the last names on license plates in driveways, in order to build cases against students living together. Again, the rule uses zoning to make a distinction not between the health and safety of how many people can safely share a house, as eight people living in a home together is just fine if they share the last name. Instead, the city used a rule that was on its face about occupancy, to manage something other than occupancy, namely complaints about trash and noise.
I will grant that a house rented by five Aggies likely makes more noise on a Tuesday and generates more trashcans on the curb than the couple next door would like. It’s probably hard not to notice that you live next to five college students. Fair enough.
College Station, though, already had the tools for regulating all of that. It has a noise ordinance that runs from ten at night to seven in the morning. It has trash rules, limiting you to putting trash out for only twelve hours before you must get your bin back off the street. The town had the scalpel to manage externalities, and instead reached for the hammer, capping how many human beings may legally sleep in a house, instead of managing the costs that only some percentage of them may have created. It presumed bad behavior from all college students, when it could have managed only the ones that truly were bad neighbors.
Worse, an occupancy cap simply spreads college students out into more houses in more neighborhoods, meaning you likely ended up with more students and non-students sharing a fence. Further, it shrinks the effective housing supply by spreading students out, which lifts the rent or home prices on every other house in town. The ordinance had a stated purpose of targeting noise and trash, and maybe it did that. But the tradeoff was that it made College Station a more expensive city for everyone: students and professors and families and the couple next door alike.
This system prevents us from ever having an honest conversation about the tradeoffs involved. A conversation about parking minimums now becomes a conversation instead about people not wanting to live close to bars, because we secretly regulated bars by requiring inordinate amounts of parking. But, did you ever think about what ten parking spaces adds to the price of a cocktail? Was it worth the peace and quiet we allegedly bought? Did we instead just get a more expensive city, without preventing all that much nuisance that we couldn’t have handled another way?
Further, there’s a progression here worth noticing. In each case there’s some alleged harm lurking underneath the rule. Over time, zoning leaves us less interested in regulating the actual harm itself and more comfortable regulating some proxy for it: the parking spaces or the last names of the people sleeping under one roof.
That last step matters, because Dallas and many other American cities (except Houston) have now spent a very long time using land-use and zoning rules to decide not merely what sorts of buildings belong near one another, but what kind of people do.
And that, dear readers, is where we are going to pick it up next week.
love/hate/other to Kirk P. at onemansdallas@gmail.com
Note: another zoning quirk in the photo above that you can’t unsee. Notice how the buildings get shorter from right to left. There is an FAA-regulated height restriction for planes coming and going from Love Field, which caps the heights of most of our buildings in Uptrown around 25 or so stories tall. There is a gradual plane as you get further from the airport, which is how you end up with the 72-story Bank of America tower (“The Pickle”) to the right. Driving into Downtown on the Margaret Hunt Hill Bridge gives the best experience to see this for yourself.