Reducing Racial Bias Embedded in Land Use Codes

Even though the Supreme Court struck down race-based land use controls over a hundred years ago in Buchanan v. Warley, 245 U.S. 60 (1917) it has long been known that zoning continues to create or increase racial and economic segregation. Today communities across the U.S. are reexamining their zoning regulations to create more equal, equitable, inclusive, and resilient communities by removing requirements, limitations, or prohibitions that disproportionately and negatively impact individuals based on race or class.

This article surveys twenty-three recommendations communities can implement to help address racial and class-based injustice. The recommendations are not all-encompassing. They focus specifically on common “neutral” land use provisions. These are provisions that do not mention race, but nonetheless may have widespread deleterious effects based on race or class.

Not every recommendation is applicable to every community, and many communities have acted on some of these recommended areas. New York City, for example, has been addressing several of these issues. The purpose of listing the recommendations is to bring them together in a single list and to provide a starting point to view zoning as a positive force for inclusion and racial justice. The recommendations are categorized in five groups: increasing home ownership and security, accommodating diversity of employment opportunities, increasing food security and sovereignty, increasing pedestrian mobility and safety, and increasing inclusion in land use processes.

Increasing home ownership and security

Many existing zoning provisions create barriers to homeownership by encouraging or, in some cases, requiring sprawling development and an inefficient use of resources. These provisions can make it prohibitively expensive to own a home, maintain a home, or pay property taxes for a home. The recommendations in this group seek, among other things, to make homeownership more equitable, fair, and inclusive by removing barriers to homeownership.

  1. Permit tiny homes and compact living spaces

Many zoning regulations require houses to have a minimum amount of square footage. This can result in making housing more expensive to purchase and maintain and can further the inefficient use of resources. In response, some local governments have eliminated minimum square footage for houses and permitted “tiny houses.” A tiny house is a dwelling that has a floor area of 400 square feet or less, excluding lofts.

Local governments can amend zoning regulations to allow tiny homes as a primary or secondary detached dwelling unit in existing residential districts. They achieve this by altering the definition of “detached second dwelling unit,” “single/family home,” or similar terms to include specifications for tiny homes. Alternatively, local governments may lower the minimum specifications for homes, such as square footage requirements. Zoning regulations may also permit tiny homes by-right or upon conditional use permit, special exception, or building permit.

Tiny homes maximize affordable housing options. They can be constructed on land that is already developed and that has access to existing utilities, infrastructure, and other community services. Reducing these infrastructure costs can help increase the supply of affordable housing units by maximizing the use of existing land and lowering housing production costs. Depending on the zoning code, a tiny home amendment may help avoid the typical long and expensive permitting process for affordable housing, further reducing costs.

The zoning code of Spur, Texas. a small city 69 miles east of Lubbock, Texas, provides a good example of a tiny home amendment. Spur saw tiny homes as a way to facilitate local growth in an affordable manner. The ordinance generally permits tiny homes in the city by-right. However, a variance is needed in seven of the city’s zoning districts. Spur, Tex., Ordinance 677, § III(1)-(2) (amended Mar. 15, 2016). The home must have less than 900 square feet of living space to qualify for rights to build under the ordinance, but there is no minimum square footage. Id. at § II(1)(H).

Fresno, California’s zoning code provides a contrast to the Spur, Texas zoning code and illustrates how a tiny homes regulation can work in a large community. Fresno (population 530,093) permits the use and construction of tiny homes as permanent dwellings, and provides for second dwelling units, backyard cottages, and accessory living quarters as a permitted use in residentially zoned lots. Fresno, CA., Municipal Code§ 15-2754.

For additional examples see Walsenburg, CO, Ordinance No. 1045 which grants authority to approve variances to minimum size requirements so that “tiny houses,” defined as houses less than 500 square feet and permanently attached to the ground, can be constructed in areas zoned for residential use. The Gold Beach, OR, Ordinance No. 660 permits use of a tiny home as a separate single-family dwelling in an existing residential zone. The ordinance requires a total square footage of between 200 and 600 on same lot as primary dwelling, and further requires connection to city sewer services.

  1. Permit accessory dwelling units

Accessory dwelling units are additional living quarters on single-family lots that are independent of the primary dwelling unit and can go by a variety of names such as accessory apartments, second units, in-law units, laneway houses, and granny flats. Accessory dwelling units were very popular in the early twentieth century as an affordable housing option. Following World War II, however, the societal shift towards suburbanization led many to seek larger single-family houses in zones that prohibited accessory dwelling units associated with single-family residences.

Accessory dwelling units, like tiny homes, are traditionally prohibited in many zoning codes. Yet, allowing accessory dwelling units can help provide additional and affordable housing options to low- and moderate-income residents. Local governments seeking to take advantage of accessory dwelling units should allow them as apartments or cottages that may or may not be attached to the primary residence. Accessory dwelling units, like tiny homes, are built with fully equipped living quarters, including kitchens and baths.

Ann Arbor, Michigan’s code provides a good example of an accessory dwelling units regulation. In 2016, Ann Arbor permitted accessory dwelling units in response to a report documenting increased housing costs that were pricing seniors and working families out of the housing market. In Ann Arbor, accessory dwelling units can be occupied by a variety of individuals, not just relatives, and can take various physical forms. The accessory dwelling units law also prohibits leasing or renting of the accessory dwelling units for less than 30 days, but allows the homeowner to lease for longer terms. Ann Arbor, MI Code of Ordinances § 5:10.2 4(d) (2016).

Barnstable, Massachusetts adopted a similar approach to Ann Arbor. Recognizing the essential role accessory dwelling units were playing in filling the demand for affordable housing, Barnstable enacted a series of ordinances designed to bring into compliance previously prohibited accessory dwelling units and permit the creation of new ones. Town of Barnstable, MA Code § 9-12 (2002). An amnesty program could provide an alternative for communities that have accessory dwelling units that currently violate the zoning code.

The Barnstable ordinance also requires owners of accessory dwelling units to rent to a person or family whose income is 80% or less of the area median income.  In addition, the rent to be charged cannot exceed the rents established by the Department of Housing and Urban Development for a household whose income is 80 percent or less of the median income for the area. There is also a deed restriction that homeowners of previous and new accessory dwelling units must execute which limits future rentals to persons whose income is 80 percent or less of the median income.

For additional examples see Town of Lexington, MA Code § 135-6.7 (2014) which permits accessory dwelling units so long as they are located in the principal dwelling, gross floor area does not exceed 1,000 square feet, and there are no more than two bedrooms. Santa Cruz, CA Municipal Code § 24.16.160 (2016) waives development fees for accessory dwelling units proposed to be rented at affordable rents; Bozeman, MT Municipal Code § 38.22.030 (2016) permits a single accessory dwelling unit in a detached single-family home or above a detached garage accessory to the single-family home; and Des Moines, WA Municipal Code § 18.55.140 (2014) permits one accessory living quarter per residential lot and there must be at least 350 square feet of living space.

  1. Establish maximum size of single-family residences

Some local governments are establishing maximum house sizes. Since 1973 the average house size in the United States has increased by more than seven hundred square feet. Large homes can shift costs to the public and local governments and price numerous individuals out of certain areas. In response, some local governments are seeking to limit the size of houses. Ordinances that set a maximum house size typically regulate the maximum floor area ratio (FAR), which is the portion of the lot that may be covered by a structure. A municipality may also limit the maximum height, number of stories, or total square feet of the house.

In 2017, Los Angeles revised its zoning ordinance and FAR calculations to combat the rise of “McMansions.” The 2017 ordinance changed the way Los Angeles calculates FAR in residential zones. Any portion of a building with a ceiling height of fourteen feet or higher counts as twice the square footage of that area in the FAR calculation. Los Angeles, CA, Municipal Code §12.03 (2017). This has the effect of encouraging owners to build houses with more usable space, or in the alternative, sacrifice overall size in favor of high ceilings.

Austin, Texas, facing a similar spread of McMansions, implemented “Residential Design and Compatibility Standards,” which regulate the size of houses in certain zoning districts. New developments in these areas are subject to a lower FAR, reducing the overall size of the building. Austin, TX, Code of Ordinances, tit. 25, subchapter F, § 2.1 (2006). If the FAR calculation results in a building smaller than 2,300 square feet, then Austin does not apply the lower FAR and allows the developer to construct a 2,300 square foot building. Id. Austin further limits building height to a maximum of thirty-two feet. Id. at § 2.2. For additional examples see Ashland, OR, Land Use Ordinance § which limits new residences in historic districts to a height of thirty feet and restricting FAR ratios to minimize development impact; and Palo Alto, CA, Municipal Code § 18.12.040 (2007) which limits maximum house size to 6,000 square feet.

  1. Remove minimum square footage for single-family residences

While some local governments address the maximum size of a house, others are removing minimum sizes of houses. Such minimums require houses to be at least a certain size, typically based on square footage. The result is to increase property values and housing costs, making homes less affordable. In addition, larger homes have significant impacts on the inefficient use of resources and greenhouse gas emissions. While large homes may be beneficial to or desired by individual owners, they shift costs to the public and local government.

  1. Permit multi-unit buildings in all districts

Many zoning codes prohibit multi-unit buildings in single-family zones. In some instances, this drives housing prices up and pushes individuals out of their neighborhood. In response, Minneapolis and other communities expressly permit multi-unit buildings in formerly single-family zones. Several variations of permitting multi-unit buildings have also received traction at the state level in California, Oregon, Washington, Virginia, and others.

  1. Permit varying unit sizes within multi-family and mixed-use buildings

Creating a variety of unit sizes within multi-family residential and mixed-use buildings can help address the need for affordable housing. Many municipalities establish minimum living space requirements. These restrictions prevent developers from building smaller and more efficient living spaces. This can limit the supply of multi-family dwelling units and force potential renters and buyers to pay more even though those units are not suited to an individual’s or family’s needs and financial resources. This lack of choice has a broader effect on the market, as it artificially increases demand and prices for standard dwelling units.

In contrast, ordinances that require a variety of unit sizes compel and/or encourage developers to build multiple unit sizes—from small efficiency apartments to three-bedroom apartments—within the same multi-family development. Variety of unit size ordinances supply multiple market-priced options suitable to diverse needs including, small units with low costs of entry, standard units, and larger, high-end units.

Varied unit sizes allow populations to concentrate in areas they desire by ensuring single people and families have suitable housing options, regardless of income or wealth. Variety of unit size ordinances can offer renters and first-time buyers a lower-cost point of entry into a desired market. As family sizes or budgets grow, renters or owners can move into progressively larger dwelling units within their existing community. Similarly, as a family’s size or budget shrinks (e.g., retired “empty-nesters”), current residents can downsize their dwelling space without leaving their community. For examples see Redmond WA, Redmond Zoning Code § 21.20.040 (2011) which requires new affordable housing units to incorporate a mix of dwelling types, while also reducing the minimum square footage requirements; and Bainbridge Island, WA Municipal Code § 2.16.020 (Q) (2017) which provides variances on height and area restrictions for developers that incorporate different unit types, affordable housing, and alternative transport infrastructure into their buildings.

  1. Permit mobile homes

Current zoning regulations severely restrict the ability to build mobile homes in many districts. Such restrictions may make it more expensive to own a home, bar access to amenities, and inhibit integration. Many ordinances excluding this type of housing have been successfully struck down on constitutionality grounds. Some state and local governments now prohibit this form of exclusionary zoning. Statutes in Vermont, Iowa, Minnesota, and California now require equal treatment of manufactured and conventional housing.

  1. Reconsider the definition of “blighted” for purposes of eminent domain

Traditionally, “blight” was used within condemnation takings to address unsafe or unsanitary conditions. However, the definition of blight has since expanded to allow eminent domain in urban and economic revitalization projects to disproportionately impact individuals based on race and class. In response, many legislatures have enacted reform laws.

North Carolina adopted a more restrictive definition of blight to prevent condemnation of individual parcels not themselves blighted. Minnesota and Georgia crafted similar changes, with Georgia also adding a requirement that the taking include written notice to the property owner regarding specific harm caused by the property and indication the owner failed to reasonably remedy the harm.

  1. Remove large lot requirements

Many municipalities have adopted requirements that individual lots measure a minimum area. These “large lot requirements” prevent lower income groups from moving into certain communities by increasing costs of developing new housing and have encountered a growing amount of legal challenges on grounds of constitutionality. Though these restrictions are rarely struck down as per se unlawful, the states of New Jersey, New York, Pennsylvania, and California have incorporated criteria weighing the benefits of large lots with the community’s need for lower-cost housing.

  1. Define “family” in an inclusive way that does not discriminate against some individuals and non-traditional families

Zoning laws often limit occupancy of a property to a single family and restrict tenant succession to family members. The way family is defined, however, may exclude some individuals and unconventional households. Courts have been reluctant to broaden the definition, but have added criteria—financial commitment, romantic exclusivity, dependency, relationship duration, and similar—to include more nontraditional families. A more proactive solution might involve legislation explicitly including these criteria.

  1. Properly target densities and address “forgotten densities,” which struggle to address societal issues

In contrast to the anti-density stances of the affluent, gentrified sector of society—which largely focus on expanding luxury spaces—lies the issue of “forgotten densities.” “Forgotten densities” are dense urban areas defined by “ageing infrastructure, over-policing, predatory enterprises like check-cashing businesses and liquor stores, inadequate transportation options, and sick buildings – structures that contribute to illness due to their poor design, materials and maintenance.” Jay Pitter, Urban Density: Confronting the Distance Between Desire and Disparity.

Local governments, by focusing more heavily on societal issues like race, income, gender, and disability, can create a density framework that more completely addresses health and equity than the current approach in which units or inhabitants per area is the sole or most important metric. New York City’s Association for Neighborhood and Housing Development, for example, produced an Anti-Displacement Policy Toolkit providing a range of policies and case studies to target the intersection between forgotten densities and desired densities.

Accommodating diversity of employment opportunities

Zoning laws can also help create a community that welcomes and accommodates diversity of employment opportunities. Many existing zoning regulations separate uses in a classic Euclidean style that prohibits any commercial activities in the home. Allowing individuals to make a living in the home can help create an inclusive workforce and accommodate more individuals’ specific circumstances, while also addressing some of the issues raised during COVID-19.

  1. Permit mixed-use zoning

Prior to the rise of the automobile and modern zoning practices, mixed-use developments were the norm. Since the rise of classic Euclidean Zoning, use segregation has been the norm and integrated land uses have been relatively rare.

To counteract the rise of separated uses and sprawling developments, some local governments permit mixed-uses by-right. Mixed-use districts have a variety of benefits including reducing housing and transportation costs by providing diverse housing options and alternatives to automobile travel. Mixed-use districts also help create cohesive, yet diverse, neighborhoods with increased economic and cultural opportunities. These districts contribute to greater livability and a healthier local economy, while also encouraging healthier lifestyles by creating cultures built around biking and walking.

Some reported negative impacts of mixed-use zoning include increased traffic, differing parking needs for residential and commercial uses, over-abundance of retail space, and insufficient existing infrastructure. For examples of mixed-use zoning see Baltimore, MD City Code, Art. 32 § 6-201 (2017) which adds industrial mixed-use district to encourage the reuse of older buildings for light industrial use and other non-industrial uses, and, in addition, includes row house mixed-use overlay and detached dwelling mixed-use overlay districts; and St. Anthony, ID Municipal Code §§ 17.06.090-17.06.120 (2015) which establishes a low intensity mixed-use district, which has an allowable housing unit density of up to 8 units per acre and moderate intensity mixed-use district permitting 16 units per acre.

  1. Permit Live-Work units and zones

Many zoning ordinances prohibit Live-Work Units. Live-Work Units are properties that combine residential and non-residential uses in either commercial or residentially zoned areas. Because of their mixed residential and non-residential nature, local governments often characterize Live-Work Units as commercial buildings for purposes of safety regulations or prohibit Live-Work Units in residential zones. This results in an inefficient and expensive use of space despite the low-risk hazard that Live-Work Units may present. By eliminating the need to commute to work, individuals do not need to finance a vehicle and individuals with less mobility or with more home obligations, such as childcare or aging adult, can work from home.

Oakland, California’s code provides an example of a community allowing Live-Work Units. Oakland allows both Live-Work which accommodate residential and non-residential activities, and Work-Live which are primarily nonresidential with an accessory residential unit. Live-Work Units are permitted within select districts and limit the square footage for either residential uses or commercial uses. Oakland, CA-Planning Code § 17.65.040 (2016).

For additional Live-Work Units ordinances see South San Francisco, CA Municipal Code § 20.350.025 (2011) which requires that Live-Work units have at least fifty percent of total floor area used for work activities and there may be up to two non-resident employees; Sunnyvale, CA Municipal Code § 19.26.230 (2010) which permits Live-Work units in mixed use combining districts and no portion of the unit may be rented or sold separately; and El Paso, TX Code of Ordinances § 20.10.320 (2007) which divide Live-Work flex units into two categories—those restricted-only for artisans or professionals with no more than one employee and two customers at any time, and those open-permits where any office or commercial use is allowed in the base zoning district and there are no limits on employees or customers

  1. Permit small-scale day care

Many codes specifically prohibit day care facilities or prohibit a variety of commercial activities. Like Live-Work units and zones, allowing small-scale day care facilities can provide additional employment opportunities.

Increasing food security and sovereignty

Zoning can also be a way to support and empower communities to grow their own food. This is particularly important in many low-income areas where millions of Americans live in “food deserts,” which means they live more than one mile from a supermarket. Millions more live in “food swamps,” in which there is an overabundance of high calorie, unhealthy food, a higher incidents of diabetes, and a lack of access to fresh fruit and produce. Many local governments are seeking to reverse this trend through their zoning codes. Below are six such measures.

  1. Remove restrictions on fowl and/or bees

Permitting bees and fowl, whether it be chickens, ducks, turkeys, or other egg-laying birds, can contribute to food security by providing a local source of honey and eggs. Raising bees and fowl can provide fresh nutritious food sources and, depending on the operation, can generate economic benefits, including providing an economic opportunity for individuals to sell honey or other products.

The introduction of bees and fowl can lead to challenges, however, such as an increase noise, smell, safety, predators and general difficulties required in caring for chickens and bees in a humane way. In addition, improper husbandry may threaten human health. Localities must carefully address these concerns if they wish to fully reap the benefits.

Milwaukee, Wisconsin permits bees through a notification and hearing process which includes neighbors. After submission of an application for a permit, the municipality mails notices to every property owner within 200 feet advising that they may submit a written objection within 14 days. The regulations also set forth restrictions for the physical structure of the hive. Milwaukee, WI, Code of Ordinances § 78-6(2) (2016).

The zoning code of Christiansburg, Virginia in Western Virginia permits both fowl and bees by-right in certain districts. The Christiansburg ordinance allows single family residences to keep no more than six chicken hens or chicks as well as no more than two beehive stands. The town requires, however, that residents receive an approved urban agriculture zoning permit in order to take advantage of the by-right ordinance. The code sets forth locational and dimensional requirements for both chicken pens and beehive stands. Christiansburg, VA, Code of Ordinances § 42-663 (2020).

Additional examples include Chicago, IL, Zoning Ordinance and Land Use Ordinance §17-17-0270.7 (2018) which permits up to five honeybee colonies on any residential lot as an accessory use as part of a zoning definition; Minneapolis, MN, Code of Ordinances § 63.100 (2016) which uses animal control regulations to allow beekeeping so long as permits are obtained and certain standards for maintaining hives are kept; and Oklahoma City, OK, Code of Ordinances § 59-8150.5 (2010)  which permits the raising of domesticated chickens, turkeys, ducks, guinea fowl, and geese.

  1. Remove restrictions on a broad range of supportive urban agricultural activities, such as cold frames, greenhouses, pens, coops, and storage

Local governments can support urban and suburban agriculture by allowing various temporary and accessory uses that are essential to or supportive of urban and suburban agriculture. Many local codes intentionally restrict some of these important uses, while others unintentionally forbid them. Without access to proper equipment, start-up costs can represent a substantial obstacle for urban and suburban farming.

Some local communities have supported urban and suburban agriculture by passing ordinances allowing a wide variety of farming equipment. For examples see Detroit, MI, Code of Ordinances §§ 50-12-403 (2019), 50-12-407, 50-12-40950-15-153 which allows equipment and composting; Boston, MA Zoning Code § 89-10(4)(a) (2013) which requires a five-foot setback for all “Farm Structures”; Minneapolis, MN, Code of Ordinances § 537.110 (2020) which permits animal runs to exercise small animals as an accessory to a dwelling but requiring that the area be fenced in; and Cleveland, OH, Code of Ordinances §§ 336.04 (2007), 336.02, 336.05 which allows greenhouses, hoophouses, cold-frames, and similar structures so long as a they are specifically used to extend the growing season.

  1. Remove restrictions on farm stands and sidewalk sales of food grown on-site

Some local codes prohibit urban and suburban farm stands and sidewalk sales of fruits and vegetables or set forth onerous farm stand permit requirements, discouraging landowners from establishing a sidewalk farm stand. Requirements that discourage farm stands create barriers to local food sales and can be detrimental to the local economy and health. Requirements that discourage farm stands can also hamper efforts to address “food deserts” and “food swamps,” which may be prevalent in low-income urban areas, requiring individuals to drive significant distances to get healthy food.

To change this, some local governments are permitting farm stands and the selling of fruits and vegetables on sidewalks, in temporary structures, or on vacant lots. Allowing food stands and sidewalk sales can increase individual access to fresh produce. To increase the availability of farm stands, some communities allow them “by-right,” allowing farm stands without further approval or review. For example, Minneapolis allows farm stands as an accessory to a community garden, market garden, or urban farm, subject to several conditions. For additional ordinances see Hopkinton, RI, Code of Ordinances § 5.5-1 (Dec. 27, 2017); Contra Costa County, CA, Code of Ordinances tit. 8 § 88-20.202, (April 21, 2020).

  1. Permit “cottage food operations,” where a homeowner may produce or package food or drink for sale directly by the owner

Ordinances that separate residential and commercial zones often prohibit homeowners from selling goods from their homes. Ordinances that require a homeowner wishing to engage in “cottage food operations” to procure additional real estate or to renovate existing property to meet health codes disproportionately impacts lower income communities. It can deprive them of opportunities to earn a livelihood. States such as Texas have explicitly banned municipal zoning ordinances from prohibiting these “cottage food operations.”

  1. Remove restrictions on community gardens

Community gardens are defined as garden plots where a group grows and cares for plants for the purpose of consumption, neighborhood beautification, or education. Some local governments permit community gardens on private lots by-right or as an accessory use. Doing so can promote the local health, environment and economy of neighborhoods while creating cooperative environments.

Ordinances permitting community gardens on private property have included provisions that limit what can be sold, require water on-site, limit structures, and establish fair and open process for access and farming in the community garden. For examples of community garden ordinances see Fitchburg, WI, Code of Ordinances § 22-6(d) (2010) which permits community gardens in all of its zoning districts; Highland Park, MI, Code of Ordinances §1229 (2011) (same); Pueblo, CO, Code of Ordinances § 17-4-13 (2011) which allows community gardens by-right subject to additional regulations; and Peters Township, PA, Zoning Ordinance, § 440.601(Community Garden)(A-F) (2017) which permits community gardens in all zoning districts and providing details for a site plan application requirement, as well as maintenance, structure, and fencing requirements.

  1. Remove restrictions on the ability to plant fruit trees

Another step local governments can take to help alleviate urban food deserts and swamps is to permit or require the planting of fruit trees and to provide education around caring for such trees. Local governments can incentivize and promote fruit trees in landscaping requirements by including a landscape credit system in land use ordinances, creating a property tax exemption process supported by the state where permitted, or implementing a tree planting initiative.

Ordinances permitting or crediting fruit trees may encourage applicants to draft development plans that include planting, restoring, or maintaining fruit trees. They may also, however, increase ground-level, spoiled fallen fruit, and attract unwanted insects, such as wasps and hornets. Local governments should consider implementing gleaning requirements within their ordinances, which involve collecting excess fruit for those in need. See Banning, CA, Code of Ordinances § 17.32.030(D)(3) which allows comprehensive landscaping plans to include fruit trees; Carnation, WA, Code of Ordinances § 15.76.070(C)(4) which encouraging the use of fruit trees in all landscaping projects; and Ypsilanti, MI, Code of Ordinances § 122-632(e) which allowing fruit trees in areas where they do not over hang on sidewalks, parking lots, roadways, or walkways.

Increasing pedestrian mobility and safety

  1. Eliminate or limit minimum parking requirements

Local governments across the U.S. have routinely set parking minimums in their land development regulations for various types of uses. Increasingly, local governments recognize the need to limit parking. Some local governments have done so by establishing parking maximums, while others have eliminated parking requirements. Such regulations help control the amount of land and impervious surfaces associated with parking. In addition, parking lots can raise the cost of housing and create obstacles to affordable housing. Some jurisdictions permit developments to exceed maximums upon the performance of certain criteria, such as increasing permeable surfaces. See Hartford, CT, Zoning Regulations § 7.2.2 (B) (2018) which eliminates parking requirements; Charlotte, NC, Code of Ordinances, Zoning, § 9.1208 (6) (2018) which sets parking minimums and maximums in transit-oriented districts only; Flagstaff, AZ, Zoning Code § 10-50.80.040 (C) (1) (2018) which sets a maximum amount of parking at five percent higher than the minimum; and Vancouver, Canada, Parking Bylaws § 4 (2019)  which implements conventional parking maximums as wells as a total parking cap in the downtown area.

  1. Prioritize walking and biking over cars

American cities have largely been designed around automobiles. Often, this disproportionately impacts individuals unable to afford their own vehicles, preventing them from accessing amenities or accepting economic opportunities farther away. However, cities are increasingly promoting walking and biking to address issues of traffic congestion and air pollution.

In 2015, Los Angeles enacted the Mobility Plan to encourage alternatives to cars. The plan developed bike lanes and public transportation while making city infrastructure more pedestrian-friendly. An even less expensive solution can be found in Idaho and Colorado, where decriminalizing the “rolling stop” provides cyclists greater autonomy, decreasing stigmas associated with cycling and physically easing the burdens of sudden stops and starts. Other solutions might include providing bike shares and storage, expanding sidewalks, and discouraging urban sprawl with smart growth initiatives.

Increase inclusion in land use processes

  1. Create an inclusive permitting and zoning amendment process and proactively engage under-represented constituents and elicit perspectives and input from those communities

Unraveling the racial biases deeply interwoven in our legal system requires a more inclusive process to hear all perspectives. Fundamentally, this might involve widely disseminating accessible information on the process and inviting community members to engage. However, a mere invitation is likely insufficient, as are requests for consultation from under-represented communities. More important is generating the opportunity for these constituents to co-create their communities and easily access permitting.

A Sustainable Development Code

The examples in this article were taken from the Sustainable Development Code. The Sustainable Development Code ,, provides a free and searchable website containing best practices to increase sustainability across the development code and development process. The Sustainable Development Code was developed by an interdisciplinary group of practitioners and academics from across the U.S. The Sustainable Development Code supports its recommendations with 6-10 examples of enacted ordinances, and is divided into 32 chapters, which correspond to 32 areas of sustainability that are implicated in local development. Chapters cover topics including food security and sovereignty, climate change, affordable housing, and health and safety.

According to the U.S. Census, there are approximately 39,000 local governments in the U.S. Each faces uncertainty brought about by Covid-19, decreasing revenues, flooding, heat waves, wildfires, droughts, biodiversity loss, rapid population increases or decreases, and, most relevant to this article, racial and class-based injustice. Many local codes–written decades ago–exacerbate or, at times, encourage systemic inequalities and climate and spatial justice concerns, particularly in formerly redlined areas. Many local governments do not have the resources or finances to adapt to this uncertainty as it arises. The Sustainable Development Code is designed to fill this gap. It seeks to help disentangle zoning codes from having unsustainable impacts and inequitable treatment.

By: Jonathan Rosenbloom ’97 (Jonathan Rosenbloom is a Professor of Law at Vermont Law School.)


Redmond WA, Redmond Zoning Code § 21.20.040 (2011)

One thought on “Reducing Racial Bias Embedded in Land Use Codes

  1. Another major way to produce housing justice and sustainability would be to use land areas not traditionally thought of as viable. In addition to small, irregular lots not usually thought of as buildable, there are major open areas.
    For example, under bridges, overpasses, or even straddling tunnel entrances. Many dense urban areas are that way because they are hemmed in by water bodies. These are often multi-jurisdictional federal/state/city bodies, complicating zoning, but because they represent huge amounts of “free land” bridge-buildings should be allowed within community standards. Sometimes free views prevents affordable housing. Arched multiuse buildings can house thousands, using inverted elevators to span horizontal or diagonal spaces:

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