Legal Commentary

This last October saw a momentous zoning milestone (at least for land-use wonks like myself who regard zoning decisions as "milestones"): Bloomberg's administration pressed through their 100th re-zoning, coincidentally Right In My Backyard, in the Carroll Garden neighborhood of Brooklyn. These 100 re-zonings collectively amount to the most substantial alteration of NYC's zoning resolution since the momentous 1961 revision: They are the most lasting legacy of the Bloomberg Administration's agenda.

The City's Planning Department expects NYC to add a million residents by 2030. Accordingly, Bloomberg has called for the creation of 165,000 more units of housing to house 500,000 New Yorkers. Given this pro-housing policy, you would think that Bloomberg's re-zonings would expand or at least not contract substantially the City's "zoning envelope" -- the buildable residential space between the existing residential structures and the possible structures that could be constructed or renovated.

Think again. According to the uniquely comprehensive survey of NYC's tax lots performed by my colleague, Vicki Been, Bloomberg's re-zonings between 2003-and 2007 seemed to increase the supply of buildable land for residential structures by a trivial amount. Why? Vicki does not yet have sufficient data to explain causation, but one promising hypothesis is neighborhood activism: Existing residential owners and renters support many laudable causes -- traffic calming, affordable housing, historic preservation, etc -- the common denominator of which is simply to preserve the land-use status quo against new development. The effect is the strangulation of a great city's housing supply.

First, here are some highlights from Vicki's data. The survey of a quarter-million tax lots affected by re-zonings show that twice as many lots (53,000) were down-zoned than up-zoned (26,000). If the latter were larger than the former, these changes might still lead to an increase in housing supply. But, if one focuses on square footage in areas that are cheapest for building -- so-called "soft sites" developed at 50% or less of their zoned capacity -- then the actual gains in land for housing seem to be remarkably trivial: The net gain on soft sites amounts to roughly 25 million square feet. Apparently, down-zonings of soft sites simply canceled out much of the Bloomberg Administration's upzonings. Given that the City is predicting a million new residents by 2030, this inability to enlarge the zoning envelope is disturbing: If a popular and pro-business mayor could not ram more residential uses through a city council, then what can one expect from a politically wounded lame-duck mayor facing a recalcitrant council backed by the usual array of NIMBY neighbors?

The essential problem of political economy is that neighbors tend to rally to preserve the neighborhood status quo even when that status quo is pernicious for the city as a whole. Thus, neighbors are "shrink-wrapping" New York City by slowly drawing the zoning "envelope" to be co-extensive with existing uses. Historic districts are the extreme form of such shrink-wrapping, but ordinary zoning can accomplish the same end just so long as the zoning envelope destroys "soft districts" by making the permissible height, bulk, set-backs, lot coverage, etc, co-extensive with the dimensions of existing structures.

My nearby Carroll Gardens neighborhood is a case in point: The area's brownstones have extra-deep (more than 33') front yards as a result of the 1846 layout of the parcels. Under the City's old zoning rules, the resulting setbacks justify extra-high buildings (because the setback lets in more sunlight top the center of the streets). But the residents naturally would like lower densities, so they pressured the city to stop extra-tall buildings that are "incompatible" with existing uses. Whatever the merits of this aesthetic preference, the City's re-zoning managed to destroy some soft sites at which the supply of housing could be expanded. As usual, the city's planning department gave no thought to whether the costs of this aesthetic benefit in terms of lost housing exceeded the gains of greater architectural consistency. Thus does the tyranny of small decisions and parochial neighbors gradually strangle a great city.