A recent article in Vox suggested that one reason behind Tokyo’s affordable housing costs in a world where almost every other major Western city has seen prices soar is because zoning in Japan is done on the federal level. This, as the theory goes, prevents small factions of local citizens who oppose denser development from wielding a heavy influence on policy design because development decisions are being made by a larger, more remote government. Housing prices in the US have risen steeply because supply is not meeting demand; denser development could be the remedy. In theory, this sounds like a reasonable argument; local government is easily accessible and therefore susceptible to concerted efforts by small groups of people to influence policy. Consequently, small groups of people are capable of undermining efforts that may produce better results for everyone in the city.
But how exactly would planning on the federal level work in the United States? Could we simply adopt Japan’s system? And if so, how effective would that system be in this country?
First, let’s quickly explore Japan’s zoning system. Japan largely zones communities on the federal level while here in the US we create zoning regulations on the local level, but Japan also utilizes a highly inclusive and simple zoning system. The country employs a hierarchical method that allows lower-use zones to be included in higher-use zones. For instance, if an area is zoned industrial then commercial and residential is also allowed. Instead of restricting residential zones to particular types of residences, in Japan all types of residential structures are allowed as long as the they meet dimensional standards. This system theoretically allows market demands to be more easily realized since each zone can accommodate many types of uses. Some cities and counties in the US do employ similar tactics, but on a much more limited basis. Japan, though, has a much more complicated and interesting story that is best reserved for a different article.
The larger question is whether the United States could or should adopt Japan’s federal zoning regime as a means of increasing affordable housing. If a few angry citizens who oppose denser development (generally known as “NIMBY’s”, i.e., Not In My Back Yard) are able to easily access and influence the local policymakers that create zoning and development policies then it makes it difficult to enact denser development standards. Of course, this relies on the assumption that NIMBYism is a major reason as to why affordable housing is hard to create, and that NIMBY proponents wouldn’t be effective if development decisions were made by a larger government body.
Federal vs. State
It’s almost a waste of time to even entertain the idea that the federal government could take over the development process in this country through zoning and permitting. For starters, the federal government lacks the authority to zone under the US Constitution. States exercise zoning authority through their police powers (i.e., their power to enact statutes based on the health, safety, welfare, and morals of the community). Since the Tenth Amendment of the US Constitution reserves those powers not enumerated to the federal government to the states, and the states have long exercised police powers, the general belief is that the federal government therefore does not have police powers.
Furthermore, the current political climate wouldn’t allow the federal government to zone land. Considering that the federal government meets massive resistance when attempting to govern in a universal issue such as health care, there’s no way its governing of local issues such as zoning would be a welcome exercise of power.
But what about the states? Could Georgia or California or Texas take over zoning from local jurisdictions?
This option is much more practical, though perhaps just as politically unfeasible. While the states have the authority to exercise police powers, they generally delegate their zoning power to local cities and counties. This allows communities to dictate how their land is used instead of state legislators. But this creates problems, particularly in large urban areas. As the Vox article suggests, local control of land use allows a few angry citizens to flood planning commission or city council meetings to exert their will. Perhaps they would have less influence if they had to flood the state capitol to try to influence not just politicians they directly elect, but also politicians elected from elsewhere in the state. This, theoretically, would give those few citizens less influence since they have to appeal not only to more legislators, but to more legislators who aren’t burdened by needing the votes of those particular citizens.
It may also take some of the economic influence out of the hands of those citizens. For instance, let’s imagine that Atlanta is debating adopting an ordinance that would allow accessory dwellings (e.g., smaller structures used as rental units) in wealthier areas that are currently zoned for single-family home use only. Under the impression that such dwellings would increase density and drive down their housing values, it is likely that those wealthy residents may attempt to block such a plan.
Atlanta needs the property tax revenue from those wealthier residents. As a result, the City may be more likely to cave to the interests of those residents despite the fact that increasing more diverse housing opportunities throughout the city would likely be supporting an interest held by many more members of the community. Transferring such a decision to the state legislature might reduce the burden placed on the politician to satisfy the needs of wealthier residents. While Atlanta receives large sums of money to fund government from the property taxes on the homes of wealthier residents, the state doesn’t. So the state has much less to lose if they were to pass an accessory dwellings statute over the dissent of a few wealthier residents. It’s more likely that a wealthier citizen may voice their frustration by moving to another city rather than to another state.
Another benefit of state-enacted zoning regulations is the potential for more organized development. Allowing local jurisdictions to make zoning decisions in a vacuum produces undesirable results across metro areas. For instance, Brookhaven may enact a zoning ordinance that produces much more traffic in neighboring Dekalb County, or Cobb County may decide to build a baseball stadium and force all the new traffic through the streets of neighboring jurisdictions. If Atlanta enacts an affordable housing rule stating that 20 percent of all new apartments need to be affordable and neighboring Smyrna or Sandy Springs does not, then a developer may be more willing to build in those jurisdictions that have less socially responsible policies. In realizing that this kind of economic growth comes to those cities willing to continuously lower standards in order to appear comparatively more attractive to developers, this system promotes the race-to-the-bottom scenario that we see in many metro areas not governed by strong state regulations.
A state legislature may have the wisdom to understand that diverse housing and transportation options are needed throughout a successful metro area. Since it doesn’t compete with other zoning bodies to enact ordinances, it can enact zoning regimes that adequately spread the benefits while diffusing the negative externalities.
Of course this all depends on whether the state has appropriate interest and wisdom. It isn’t hard to imagine a state legislature dominated by rural or suburban interests enacting zoning policies to encourage developmental sprawl. This would deteriorate the intended outcomes of urban planning and progressive designs implemented by more progressive cities in less progressive states. A more progressive state, though, may be able to further good planning policy by exercising zoning authority at the state level.
The Regional Commission Option
The best option may be to simply have regional commissions or authorities of the state exercise zoning authority. A state can still enact affordable housing or other development requirements that would apply in all jurisdictions, but leave the zoning to regional commissions. The Atlanta Regional Commission (ARC), like similar bodies around the country, has the power to enact guidelines, but doesn’t have the power to create binding zoning regulations on local jurisdictions. It promulgates general best practices and long-term comprehensive plans that are best for the Atlanta region as a whole, but local jurisdictions generally aren’t obligated to adhere to those plans. Allowing the ARC to actually zone land throughout the region may reduce some of the “race-to-the-bottom” competition between local jurisdictions to zone for what is best for developers and groups of wealthier residents, but not necessarily best for the community as a whole.
Only legislative bodies are allowed to enact zoning ordinances, so the structure of the ARC would have to change. Removing zoning to a larger regional authority would undoubtedly be met with fierce political opposition, though it’s likely just what the doctor ordered for many metro areas to grow in more organized and reasonable manners. Making counties and cities compete among each other when we all freely travel between jurisdictions on a daily basis makes little sense. The bureaucratic inconsistencies and infrastructural headaches that ensue degrade our comprehensive regional planning efforts while cultivating a fractured political atmosphere and an overall distrust of one another.
Considering all this, re-organizing the zoning powers to help remove the negative impacts of NIMBYism wouldn’t solve everything. Zoning ordinances still need to be more inclusive to allow a diversity of housing options and permitting for new construction needs to be done much more quickly. Japan’s other land use policies and unique attitude towards housing may better explain Tokyo’s relatively affordable housing than their federal zoning scheme. Though, if you can solve the problem of a few angry citizens halting the entire process it would go a long way in creating better zoning policies and speeding up the construction process.
 See generally Barnett, Randy E. The Property Scope of the Police Powers. Vol. 79 Notre Dame Law Review, p. 429 (2004). Reprinted with permission. © Notre Dame Law Review, University of Notre Dame. <http://scholarship.law.georgetown.edu/cgi/viewcontent.cgi?article=1505&context=facpub>  State of Georgia Rules and Responsibilities For Planning in the Atlanta Region. February 2009. <http://www.atlantaregional.com/File%20Library/Land%20Use/lu_regional_rules_authority_092010.pdf>  Button Gwinnett Landfill, Inc. v. Gwinnett County, 256 Ga. 818 (1987).