Homeowner’s Bill of Rights to Preempt State and Local Zoning Laws

After weeks of fraught negotiation, House of Representatives Speaker John Boehner (R-Ohio) announced that both houses of Congress had reached agreement on passing the Homeowner’s Bill of Rights (HOBOR), which uses the preemption doctrine to abolish most local planning restrictions. President Obama announced that he would sign the bill, which includes several provisions pushed by urban environmentalists. While the majority of Republicans announced their intention to vote yes and the majority of Democrats announced they would vote no, HOBOR relies on cross-bench support, as several prominent Republican lawmakers identified with the Tea Party, including presidential hopefuls Senators Ted Cruz (R-Texas) and Rand Paul (R-Kentucky), announced they would oppose the bill on the grounds of federal overreach.

Despite early environmentalist hopes that the bill would be narrowly targeted at suburban single-family zoning, HOBOR casts a wide net. It preempts any separation of residential, commercial, and industrial uses; maximum heights and floor area ratios; open space requirements; environmental restrictions including noise limits and endangered species protections; urban growth boundaries; parking minimums and maximums; single-family mandates; form-based codes; anti-McMansion ordinances and minimum lot sizes; affordable housing mandates; and setback requirements. It also requires the federal government to study privatizing federal land adjacent to urban areas and to consider the effects of growth controls on the housing market, a move that is expected to liberalize construction in the West. It does not preempt private deed restriction, despite an attempt by urban Democrats to ban it, but does ban cities from giving public incentives for it.

Boehner’s office released a statement, “The Homeowner’s Bill of Rights will prevent power grabs by special interests and by the federal government, and reduce the level of regulation in America’s cities.” Governor Greg Abbott (R-Texas), who recently proposed a similar law in Texas before Congress federalized the issue, credited Texas’s strong economy to loose zoning, and specifically praised Houston’s lack of zoning as an engine of economic growth.

On the Democratic side, New York City Mayor Bill de Blasio offered tepid support for the bill, saying that he expected the increased pace of construction to create jobs and affordable housing in the city, but added that the city would maintain its rent stabilization program. New York housing advocates were involved in obtaining necessary bipartisan support for the bill, and the city’s all-Democratic Congressional delegation is planning to vote for it, with the exceptions of Reps. Carolyn Maloney and Joseph Crowley. Crowley said in a statement that “the city’s planning laws are a cornerstone of neighborhood protection, and it’s hypocritical that the Republican Party, which claims it supports states’ rights, uses the federal government’s power so blatantly when it suits its needs.”

In San Francisco, opponents took to the street, protesting in front of the office of Senator Dianne Feinstein, the most prominent Senate Democrat to support HOBOR, with signs saying “gentrification = violence” and “the developer’s bill of rights.” A group of protesters attacked a shuttle bus ready to leave for Silicon Valley; the leaders of the main group of the protesters disclaimed the attack, and blamed agents provocateurs, but added that destruction of property is different from violent crime and that to compare the two is itself a form of violence.

On the ideological right, reactions are mixed. National Review has written in favor of the bill, while Reason continues to reject it. Joel Kotkin has editorialized that the bill “paves the way toward high-rises that Americans continue to reject.” Tea Party support is split, but largely negative; several groups have vowed to sue, connecting Democratic support with Agenda 21, the UN position paper encouraging more urbanization and restrictions on suburban sprawl. Senator Ted Cruz threatened to filibuster the bill, and openly called for a constitutional challenge. In contrast, Senator Marco Rubio (R-Florida) plans to vote for the bill. In his statement, Rubio pointed to redevelopment in Miami as “affordable housing provided by the free market without government subsidies paid by tax money” and welcomed Democratic support.

All around the nation, municipalities, business groups, homeowners, landlords, and tenants are preparing for the entry of the bill into force, which is scheduled for this September 1st. New York, San Francisco, Houston, and Chicago have all already written draft planning laws designed to comply with HOBOR restrictions, but city planners are still debating how to adapt to a situation without zoning rules to shape urban growth.

Several real estate companies are planning new skyscrapers in central business districts of multiple cities. In Washington, The Related Companies is planning a 1,330 foot tall, 4.3 million square foot tower in Farragut. In New York, Harry Macklowe, Forest City Enterprises, and Durst Organization are all expected to race to develop the tallest skyscraper in the city, in the East Midtown area; real estate analysts speaking on background expect towers exceeding 2,000 feet in pinnacle height, to overtake One World Trade Center, but closer to 1,500 feet in roof height.

Outside city centers, development is slower, but analysts expect it to accelerate in the coming years. Facebook has already announced an expansion of its campus as well as the construction of apartment buildings in its home city of Menlo Park, California, as well as Atherton and Palo Alto, to house its growing workforce. However, when asked if this trend means less demand in San Francisco and less demand for tech shuttles, a senior Facebook human resources manager speaking on condition of anonymity said, “Most of our new hires still prefer to live in San Francisco, so we may end up seeing more commuters from the city, at the expense of the East Bay.”

Ultimately, analysts agree, it is difficult to gauge the long-term effect of HOBOR this early. However, as an early indication that there would be a move to established business districts, stocks of publicly-traded companies involved in purpose-made redevelopment districts, such as the Boston Seaport and New York’s Hudson Yards, are down by an average of 3% since Boehner announced that he had secured support for the bill, whereas those of other major developers have been sharply rising, by 2-15%. But when asked whether they will scale back their plans, officials in Boston have replied negatively, and have even suggested a $2 billion Silver Line expansion to serve the Seaport.

13 comments

  1. Eric

    Wow. You had me until I googled this bill to see how close it was to actually passing.

  2. Ian Mitchell

    I think you pegged Rubio pretty well. Paul probably would be in favor and I don’t honestly know about Cruz. I highly doubt there’d be as much democrat support for this, given gentrification alarmism. Would houston actually have to change anything?

    • Alon Levy

      I read Paul and Cruz as too anti-urban to like this. Remember, the Tea Party is against upzoning, even though it’s a relaxation of regulations, on the grounds that it forces people to build more densely. Rubio I read as someone who’d support this anyway – the specific contrast between him and Cruz is that Rubio is also pro-immigration whereas Cruz is the opposite, and there is some correlation between the two views.

      Democrats… some would be gentrification-alarmist. Some would like the urban development angle of it. I deliberately didn’t say how Pelosi’s voting; my guess is she’d support it if it were truly bipartisan but oppose a mainly Republican bill for partisanship. A lot of the anti-upzoning people in San Francisco specifically call for suburban upzoning, and for at least some of them it’s an honest belief that suburban NIMBYism is the worst problem, rather than a deflection from urban NIMBYism. A lot of black Democrats would like the bill for the preemption of white suburban exclusionary zoning, and some Richard Florida-style environmentalist-boosters would support this as well, especially if parking minimums were included in the bill. I read Boehner as someone who’d be okay throwing that as a sweetener.

      Houston has parking minimums, setbacks, and an incentive for deed restrictions (streets are minimum 50′ with a single-family deed restriction, 60′ otherwise). It also had a minimum lot size but recently repealed it.

  3. Me Mowry

    This bill is a our mortgage for closures and rights of owners, lenders ant tenants. It died in committee last year. There are no amendments. Who are you people, certainly not responsible journalists.

  4. jamespkennedy

    I like this in general but find the part about removing protected lands and urban growth boundaries alarming. Aren’t Portland and Seattle famous for using the latter to promote density and infill?

    Parking mins and upzoning are hugely important. I wonder if these outweigh those concerns…

    Do you think that with a different road/transit funding policy we could obviate most of the problems with destruction of protected land through sprawl? Worried that stand-alone, this wouldn’t work, but with that different funding system, it would.

    How important do you supposed parking maximums are, relative to other things?

    • Alon Levy

      I think removing protected lands is alarming, too, but I wrote the post to feature a preemption law I could see (some) Republicans in Congress pass.

      Urban growth boundaries… meh. Portland is not a dense or transit-oriented city; average density there is about on a par with Dallas and Houston. On the contrary, I suspect that the net effect of UGBs and greenbelts is to induce more sprawl. They make it easy for people to live in the next town over beyond the greenbelt and drive – there’s no traffic coming from the greenbelt itself. Transit-oriented suburbanization is continuous along rail lines and arterials.

      Parking maximums in Manhattan are a limiting factor, in the sense that developers build to the maximum. Then again, new buildings in Manhattan are luxury, largely because of zoning restrictions there and elsewhere in the city. The overall effect of abolishing both minimums and maximums has to be positive – there are tiny portions of a handful of cities with maximums, and vast swaths with minimums that are limiting as well, in the sense that developers build the minimum required.

      • Eric

        Shlomo Angel, in his book “Planet of Cities”, examines the case of Portland’s UGB and concludes that it did nothing to increase density or reduce fragmentation, specifically, there was no distinguishable difference between the development in Portland and that across the river in Washington State.

        Maybe though this was just because Portland’s UGB was defined broadly enough to include all the sprawl that would have been built anyway up to the present day, and a narrower UGB would have had a stronger effect.

          • michael.r.james

            Those comparisons of inner Portland versus Dallas are too superficial. Portland is about 20% more dense (not a lot) but an analysis of the whole Metro area is needed to conclude anything meaningful. (And then decide how to compare a city of almost 7m with one of 2.3m!)
            Portland’s Urban Growth Boundary may not have had much effect (yet) because they actually keep adjusting it, when the idea surely is to set it and let if force the city’s evolution. Not adjust it upwards every few years as pressures develop (as inevitable).
            In any case the notion that a UGB may itself induce more sprawl is still not necessarily against the objective. In that, it causes pressure on the (inner) city to densify at an considerably earlier phase of its evolution than otherwise. Because people will be faced with that awful choice of living way, way out (to escape the UGB) or compromise on that faux-mcmansion with double garage for better convenience and a bit of civilization etc. Think of it as accentuating the differences between the choices–it turns it into a quantum leap instead of the usual gradual effect.
            You could also consider it analogous to the effect of a geographical barrier such as water in NYC.

  5. Kelly

    I am optimistic about the bill’s potential for affordable housing. However, another challenge is what happens when housing is placed near industrial sites. Tenants are frustrated with noises and smells, and business owners get fined for causing noise. It sounds like it will be up to each city to create protections for various interests.

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