Dubicki: When Upzoning Becomes a Fool’s Errand

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Single Family homes.
A street of single family homes.

Yesterday’s report that Seattle’s housing prices rose 11.6% over where they were in November 2019 comes as zero surprise to anyone who has toyed with the idea of buying a house in the last year. Folks are hunkering down and fixing up. That extra room is an office and that kitchen got an upgrade, if you had them already. Without being tied to a workplace or a commute, white collar workers are finding that they can live where they want. Just as many people are making that home in the city as are departing to the suburbs. The housing market is as tight as it has been in the last 20 years.

Which means that Seattle is still in a housing crunch. On top of the existing statewide shortage estimated at 225,000 units, the region needs to build capacity for at least one and a half million new residents. Some projections put this deadline at 2050, but it’s going to be needed much sooner based on climate migration studies. 

There are proposals for density under glamor names like “the 15-minute city” which many other places just call “the city.” Others develop wacky concepts that insist the incoming population needs to be focused into new “hub cities” in underdeveloped areas along I-5. Then there’s a concept many label as a simple solution to the affordability and supply problem: Upzoning. It is the go-to for many urbanists every time there is a report about unavailable housing. Or unaffordable housing. Or that the baseball team lost. Or just a random Tuesday. We love upzones.

I’m sure it was a SUPER insightful tweet when I wrote it.

The idea of upzoning is straightforward. If there is a density limit in the zoning code, turn it up a notch or two. That was the concept behind the Mandatory Housing Affordability (MHA) law that Seattle passed in 2019. MHA identified areas in the city to increase floor area and the number of permitted stories in new buildings. In exchange, developers provided a certain number of affordable units (ranging from 3% to 11%) or paid a fee, each scaled to the intensity of the zoning capacity increase. The measure faced fierce opposition.

Upzoning is appealing because it reverses decades of apartment bans and cloistered McMansion development. But it has a giant problem beyond the political firestorm that often surrounds it. Upzoning without the accompaniment of deeper reforms reinforces the underlying failures of zoning.

First, we cannot escape the racist roots of zoning in the United States. As Richard Rothstein puts it in The Color of Law, “segregationist officials faced two distinct problems” in the early 20th century, “how to keep lower-income African Americans from living near middle-class whites and how to keep middle class African Americans from buying into white middle-class neighborhoods.” Zoning ordinances were developed to build homes that outpriced all lower classes. Applying that zoning preserved White neighborhoods and dumped unwanted uses in Black communities, undermining the potential wealth generation of home ownership. 

This redlining map from 1936 concentrated communities of color in red and yellow areas while denying them access to loans for homes and business. (Map by Knoll Company)

This persisted until the Federal Government set up the Home Ownership Lending Corporation and simply excluded Blacks from qualifying for home loans. The HLOC maps of the 1930’s “redlined” non-White neighborhoods, later justifying highways and industrial areas to cut through them. Those old maps are so closely tied to our modern city that the redlined areas overlap where Covid cases are concentrated today. 

Second, we make zoning carry too much weight today. Take this week’s decision by exiting Mayor Jenny Durkan to reduce the number of gas appliances in the city. Such a move is an objective victory. The city is using its authority over building codes to rein in the sources of carbon emissions. But the new rules exclude single-family homes and applies only to commercial or mixed-use projects. That means the gas appliance rule ends up being a zoning rule.

Over and over, we get these inadvertent zoning rules, simply by making them only apply to one type of building. MHA was primarily designated for multifamily homes. Design review is required for commercial and multifamily developments. Industrial areas get churned by being planned, scrutinized, and re-studied. Even the most needed housing for those surviving outside is subjected to zoning nonsense because it’s about the use of a building. While we could be using five-year-old emergency powers to build or lease thousands of units tomorrow, actually providing housing has been allowed to fall back on the polite bureaucratic sausage making of a zoning discussion. In Renton, hostile zoning to disperse those experiencing homelessness has advanced straight through farce to high art. This is what peak performance of suburban municipalities looks like.

All the while, single-family detached areas are largely exempt from these processes.

Zoning is not the only way we divide up the city, but it does so much more work than the other divisions we make. Neighborhood names change based on what a realtor wants to sell a house for. There are option schools and redistricting. Census tracts and zip codes move around with the population. Police precincts follow the perceived need for services. Only the land use code gets saddled with establishing the heights, setbacks, uses, exclusions, signage, parking, trash location, public outreach process, economic composition, access from public right-of-ways, in addition to protecting the “character,” setting the walkability, services, employment conditions, landscaping, and generally making a neighborhood a PLACE.

There is no way that a piece of legislation can do all of those things. Yet we expect zoning to pull it off. Most people don’t even understand zoning, but we let it dictate so much of our communities. More disastrously, we expect zoning to be successful in every part of the city for every activity in the city. When it fails—and it always fails—zoning reverts back to its original state of segregation by race and wealth.

So, let’s step back from upzoning for a little bit. Zoning will never be able to create enough new housing because it was never designed to. We need a deep understanding of all the places polluted by zoning’s exclusionary, racist history and the courage to rip it out by the roots. Until we get that done, we must put the polite spectacle of zoning decisions on the side and use every other tool to zealously pursue housing, housing, and more housing. 

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Ray Dubicki is a stay-at-home dad and parent-on-call for taking care of general school and neighborhood tasks around Ballard. This lets him see how urbanism works (or doesn’t) during the hours most people are locked in their office. He is an attorney and urbanist by training, with soup-to-nuts planning experience from code enforcement to university development to writing zoning ordinances. He enjoys using PowerPoint, but only because it’s no longer a weekly obligation.

12 COMMENTS

  1. The proforma flagellation over redlining/zoning is really a non-sequitur. Zoning was coopted as a tool for exclusion and therefore…blunting the impacts of zoning won’t create more inclusion? I have a big problem with the constant invocation of ‘Color of Law’ because it really just seems to fuel ‘anti-gentrification’ NIMBYism, which is every bit as pernicious as the white-bread suburban variety of NIMBYism. Ghosts of 1930’s FHA officials have never shown up at our local zoning meetings to oppose new construction; my neighbors do that.

    Observe the comment about upzoning simply leading to larger yards or expensive new housing. This is simply an error of logic. The owners of single family homes sitting upon unused development rights have increased incentive to sell to a developer who will build more housing. The new housing will have higher rents only in as much as it gets built if the projected rents make it worth the cost, but this puts downward pressure on prices across the rest of the subject market. This can be hard to observe as the new development will be clustered in desirable areas. However, not building will certainly lead to increased prices. The would-be renters that can pay higher prices can afford to outbid those who cannot afford it, whether the housing supply is elastic and inelastic.

    As was stated in an earlier comment, upzoning (or more accurately, more housing construction) will not by itself create an affordable housing utopia, but it is a precondition. I am a real estate investor and the concept of ‘barriers to entry’ is a crucial one in our evaluation. When a municipality restricts development or has little in the pipeline, that is a great sign that we will be able to raise rents. Wipe the smile off my monocled, claret-sipping face and push for more housing.

    • Superbly argued and well-written comment. Seriously. If you haven’t written on this topic in longform yet, I hope you’ll consider doing so. Your perspective as a real estate investor is especially valuable here.

  2. Where do the kids play? The amount of lot coverage calls for single-story houses to end, which probably means two-level dwellings, especially if lots are as small as described above (40’x 100′).

  3. Much of Seattle is platted in lots 40’x100′ which typically yield 8 houses per gross acre. Typical in older neighborhoods like Wallingford where I used to live.

    • It’s easy to double that to 16, too: we’re on one of those lots, but split in two. The original house is on 1,500 square feet, while ours (infill) is on 2,500. This isn’t allowed everywhere – only where there’s a certain number of nearby small lots-but it ought to be.

  4. “Zoning will never be able to create enough new housing”

    How would we know, since we’ve never tried? Despite everything that has gone on over the last fifty years, the only meaningful change to *most* of the privately owned land, and somewhere around 70% of the residential land is the end of redlining. That’s it. That was a while ago.

    We have subdivisions, tear towns, new private shared driveways by the hundreds, if not thousands. But the zoning remains the same. As a result, we have more McMansions than ever.

    Why not adopt something like Portland? Change the zoning rules for most of the city. Instead of million dollars houses in Lake City, we get row houses, or condos. They won’t be affordable for everyone, but housing was never affordable for everyone, any more than food is (or was) affordable for everyone. We will always need housing assistance for the poor, but if we change the zoning, we won’t need it for the middle class (and paying for it will be much, much cheaper).

  5. I am reading something that says typical urban housing density is assumed to be 7 dwelling unit per acre. That seems _ridiculously_ low. Is it right?

  6. Someone needs to tell the Mariners they need better pitching depth and more upzones. And they need to use the international draft to bring in some Passivhaus experience.

  7. Regardless of whether upzoning is sufficient to get enough housing built, it is certainly a precondition. Otherwise, it is legally impossible for the city to ever have enough housing to meet demand. Which means what housing does exist will simply be bid up to higher and higher levels.

  8. Brave article on this blog, but very insightful. Some argue that although upzoning has not created anything remotely resembling affordable housing it has slowed the increase in housing costs, which is hardly a comfort with a one year increase of 11% in housing costs (although for other reasons high end rental rates in the most urban areas have declined around 14% during the pandemic).

    Upzoning necessarily needs new construction to work as hoped in order to create more total units, but the rub there is new construction under new more stringent codes is always the least affordable, and when land is upzoned developers usually purchase the older and more affordable properties to demolish and rebuild under the upzone. As the author notes adding new green building codes on top only makes the new construction more expensive.

    So upzoning can destroy more affordable housing than it creates, or existing homeowners just ignore the upzone rules, although they can allow new single family homes to have even less yard setbacks and vegetation, and allow a greater house to lot area ratio although no new housing is being created, just a larger house. (In Mercer Island’s new residential code each zone has a limit on the total size of the house no matter how large the lot is, and minimum lot sizes are quite large by regional standards, 8400 sf to 15,000 sf. This was called the mega-house provision, because often these mega houses combine lots and eliminate side yards).

    Then there is the irony that rentals in areas formed due to redlining have the most affordable rentals today, but those homeowners realized much less appreciation than if they had purchased a home in a neighborhood that has increased in value more. One of the real risks today of upzoning is gentrification, which can displace historical communities of color when the prices rise. An argument can be made that upzoning and new construction have contributed to unaffordability rather than cured it.

    For what it is worth I wish someone would look at the concentration of rental housing ownership in Seattle. In Seattle over 50% now rent, which is a very high percentage. More and more, large trusts or LLC’s are buying the properties and adding them to large rental housing pools. A real concern with Seattle’s recent residential code rewrite is eliminating the requirement that the owner of the property must live in one of the units on the property only incentivized more properties being purchased by these housing trusts to be used as rental housing and absentee landlord rentals.

    Seattle faced this issue with Airbnb rentals. Airbnb rentals were more attractive to property owners because they had none of the landlord/tenant regulations or restrictions, Airbnb renters came with a rental history and rating system, there was little risk of eviction costs, and the revenue from just 12 days of Airbnb rentals exceeded the monthly rental from a full time tenant.

    The problem of course was Airbnb rentals removed a lot of rental properties from the full time rental market, driving up rental rates.

    So Seattle restricted the number of Airbnb rentals any one person or entity could own, to two I think, although one large property owner was grandfathered in due to the risk of litigation.

    I would like to at least see a study on the concentration of rental properties in Seattle. It should be noted affordability is an issue region wide, and just about every area is experiencing greater price increases than population gain would suggest is normal. Some might be changes in working from home, or very low interest rates, or aging millennials, but recent populations gains have been around 1.3% for King Co. so I am not sure recent population growth can account for the steep prices in housing recently.

    Again thanks for an article that dares to ask where is the affordable housing everyone was promised.

  9. Even if upzoning were to have no significant positive impact on aggregate housing costs, ending exclusionary zoning – effectively an upzone of single family zones – is morally urgent to end the patterns of segregation with racially invidious effects it perpetuates:

    “Within Seattle, White householders are slightly more likely to own their home than rent. However, householders of color, particularly Black householders and Hispanic householders, are less likely to own their home…. [W]ith some exceptions, persons of color disproportionately live in areas of the city with zoning for multifamily housing or “commercial” zoning (which allows a combination of multifamily housing and commercial uses). In Seattle, this housing is primarily located along, or otherwise in proximity to, major roadways….”

    “Within a 200-meter radius of T-1 and T-2 roadways, roadways that carry an average annual gross tonnage of more than 4 million, the noise and air pollution impacts are most acute. Despite representing only 21% of Seattle land area and 19% of the total population, 40% of the miles of T-1 and T-2 roadways are in the areas with the highest population of our most affected classes. This means that people in protected classes are more likely to be living with exposure to acute noise and air pollution coming from high truck traffic roadways…”

    (2017 City of Seattle and Seattle Housing Authority Joint Assessment of Fair Housing)

  10. Upzoning single family to allow 8 units with reduced setbacks and more lot coverage is not intended to make the city affordable or house 2 million over night. But it will give it a chance. The longer we wait, the worse it’ll get.

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