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Commentary By Salim Furth

Give Housing a Fairer (Public) Hearing

Economics Housing

Most Americans will never attend a zoning board hearing. But those who do show up have a powerful say in where housing is built and how much it costs. Two new books bring us inside hearing rooms in Massachusetts and California, where the urgent need for more housing is colliding with the misgivings and outright hostility of neighbors. Although one book makes the case that the institution of the public hearing is biased against growth, the other shows what happened when one woman decided to flip the script.

Zoning rules in America certainly include outright prohibitions on certain kinds of development, but they also introduce a broad gray area: buildings and uses that might be possible, but only with permission from a town’s zoning board of appeals. Certain kinds of projects, those that zoning allows “by right,” can proceed without public feedback. But those that fall in the gray area go before a zoning board of appeals, and the appeals process opens up every aspect of a proposed investment to public comments.

In Neighborhood Defenders (Cambridge University Press, Nov. 2019), Katherine Levine Einstein, David M. Glick, and Maxwell Palmer dive into the details of who attends these hearings, why, and what they say. The hearings they discuss, at least in eastern Massachusetts, follow a common theme of overwhelming opposition to change. Only one comment in seven was favorable to new investment.

Those who comment at public hearings are more likely than their town neighbors to be old, white, and homeowners. They live close by the proposed uses at issue: fully 41 percent of Massachusetts public meeting commenters lived on the same city block and another 41 percent lived elsewhere in the same census tract. And their concerns are with their neighborhood’s quality of life: flooded basements, traffic, and parking were the top three concerns expressed.

Einstein, Glick, and Palmer call these involved, skeptical locals “neighborhood defenders,” a badge one suspects many would wear with pride. The defenders often have little chance of stopping a project; instead, they focus on forcing delays – a traffic study, a drainage study, another traffic study, and so on – as a means of gaining bargaining power. In the neighborhood defender playbook, a successful intervention is one in which the credible threat of months or years of delay (and lost revenue) force the developer to substantially scale back a proposed investment.

In Ipswich, Mass., public opposition and a lawsuit by neighbors added over a year to the permitting time for a duplex. In Brookline, neighborhood defenders used studies, lawsuits, and political pressure to shrink a proposed 140-unit project down to 59 units. In Lawrence, a neighborhood association convinced the zoning board to deny permits needed for two single-family homes which would have been built on vacant lots.

Frequently, the neighborhood defenders challenge projects on grounds unrelated to the reason for the hearing. For example, a hearing might be scheduled to discuss a building’s size but devolve into a debate about aesthetics. Requiring zoning board permission on a single aspect of a proposal opens the entire project up for public evaluation.

Einstein, Glick, and Palmer’s study is an excellent example of institutional analysis, a field advanced by Nobel laureate Elinor Ostrom, among others. Institutions, in Ostrom’s framing, are not only comprised of formal organizations and written rules, but also norms and understandings. Neighborhood Defenders convincingly shows that public meetings, as an institution, promote the concerns of skeptical homeowning neighbors at the expense of other interested parties.

Sonja Trauss did not abide by these norms and understandings. Profiled by Conor Dougherty in Golden Gates (Penguin Random House, Feb. 2020), Trauss is one of a dozen Californians whose lives have been reshaped by the Bay Area housing crisis. She showed up at public hearings in San Francisco and, to everyone’s surprise, spoke in favor of one building project after another. We need more housing, she reasoned, everywhere.

Unlike the neighborhood defenders, Trauss became active city-wide. Whereas most public commenters speak only once – when something is proposed for their own block – Trauss and the merry band of “Yes, In My Backyard” (YIMBY) activists that grew up around her spoke again and again.

Public hearings don’t work like voting, with a count of ayes and nays leading to a majority decision – substance and intensity matter. So when the vocal YIMBY minority began showing up at public meetings in San Francisco, it destabilized the local institutions involved in land use regulation and spilled over into politics. The housing crisis first divided San Francisco politicians in local races and then forced California legislators to take sides on Senator Scott Wiener’s Senate Bill 50 in the face of heavy – and well-funded – pressure from YIMBY activists in favor and local governments in opposition.

As Ostrom’s work showed, some institutions work better than others at promoting the public good and achieving stable outcomes. Public hearings, which grew out of a desire for more responsive government, are designed to only take into account the interests of the developer and nearby homeowners. Einstein, Glick, and Palmer propose reforms such as building in a week’s delay between zoning board hearings and decisions in order to give board members a cooling-off period after emotional hearings.

In many jurisdictions, zoning board deliberations are undertaken with the public still in the room. In my own state, Maryland, an open meetings law has required this practice since 1991. As Yuval Levin argues in A Time to Build, such radical transparency worsens decision-making by preventing frank discussion among officials.

Another beneficial reform would be to clarify in local ordinances that zoning board members will only consider comments that have a direct bearing on the aspects of a project that have brought it before them. Written rules alone cannot fix unhealthy institutions, however, and a lasting solution to the housing supply shortage must involve informal as well as statutory change to the institutions involved in determining the supply of housing.

Salim Furth, Ph.D., is a Senior Research Fellow at the Mercatus Center at George Mason University and the co-director of its Urbanity Project.

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