Well said. To lean into the Strong Towns parlance, we all want to restore bottom up community planning. Which means restoring agency over residential land use to the lowest level of decision-making possible, the individual property owner
State legislation that helps restore decision-making to the individual landowner isn’t the same as state-driven highway planning or other top down policies, it’s a fundamental part of reviving true bottom-up planning. State-level advocacy doesn’t replace the local organizing, it’s a complement
Shout out Ryan Pyzucki from City of Yes and Strong Towns board president Andrew Burleson for making similar arguments about the “lowest level of decision making” in the past
Just quickly -- I don't agree with the notion that the lowest level of decision-making on land use issues should be the individual property owner. The most conservative Supreme Court rulings of the last 100+ years also don't agree. And, I would estimate at least 95% of Americana don't agree as applied to their neighborhood.
It's going to be really problematic if central to the YIMBY project is pushing what nearly everyone outside of it will view as a radical, extreme position.
This is a thoughtful letter, and I appreciate the effort to genuinely quote me using my own words in a strong version of my arguments. Much respect.
I am walking out the door for some time off and won't engage with this at the level it deserves for a while, but I do want to engage. In a deeply philosophical sense, we might be way off from each other, but in a practical sense, probably not. I'm excited to explore that.
Appreciate the engagement in the spirit of good debate! I think I see it similarly that we may have philosophical differences, which land us in similar places in practice.
We had a whole bit about how state legislation actually requires winning hearts and minds in numerous places, and how "all politics is local" because state legislators must care about how things play in their home jurisdiction, so state bills can't get too far into "top down" legislating. But it was already getting a bit long. That's another angle where I think we end up in a very similar place, ie organizing locally.
I am a long time Strongtowns guy, and cofounder of a local chapter. . . and I honestly don't really get the point of the apparent critique crusade against Abundance and YIMBYs. I am also happy to place myself in both of those camps. Also, it is not as if YIMBYism is some specific and narrow doctrine [expect maybe of Twitter/X, but who cares, that's not reality]. IRL, I know self-described YIMBYs who disagree on all manner of related details.
In Michigan the current city-township system was created for explicitly racist purposes, and the existing - sometimes almost comical - boundaries exist to service those purposes. For heaven's sake, my own city of Grand Rapids, MI **contains** another city (East Grand Rapids) for this reason. These boundaries are not logical, and they are not laid out with any idea of coherence or efficiency. The power of land-use is delegated to cities and townships **by** the state, so even describing state action as "preemption" is IMNSHO disingenuous, the state is simply the superior in the hierarchy. By such logic the state is exercising "preemption" in nearly everything it does; it does not, for example, allow cities to modify the building code(s), have ranked-choice voting, levy a sales tax, operate a fiscal deficit, impose rent control, etc...
I agree that for this topic the state is the arbiter of policy more so than the city; and the purpose of local governments is primarily to diffuse power down to what are little better than cabals which use those rules to protect their own privileged position.
I agree with all the arguments in The Housing Trap about financing, and that is a real factor in the housing affordability crisis. But I don't see clearly how the Abundance and YIMBY crowds are denying that reality - at least in IRL conversation people under the various banners all seem to "get" that.
Well said. I am likewise in both camps and baffled by some of the fighting.
I’ve come to wonder if we shouldn’t underestimate how damaging the fights between Chuck and certain very online Twitter YIMBYs have been over the years.
There are meaningful, useful intellectual debates rendered into something else by hard personal feelings.
Seth, I think you're saying -- and you've said before to me -- that there is some kind of emotional reaction I'm having to the YIMBY Twitter hordes that prevents me from hearing other assertions and considering them. In the moment, maybe, but overall that's kind of demeaning. It might not be that my emotions prevent me from hearing you -- I might just disagree. And that's okay; we don't have to see this the same way.
I think the YIMBY movement (probably like literally all of our politics) has been damaged deeply by the gap between the people doing the most work and the people doing the most posting. The impressions people have of perspectives they mildly disagree with get completely absurd.
I don't think it's just that the emotions prevent us from seeing clearly, I think we end up with misunderstandings about who is influential in a movement and what do they actually think and prioritize. I think it's a huge problem for everyone in movement politics.
Adam, I appreciate the work you're doing. I hope you're being hyperbolic in suggesting I've been on a "critique crusade." Central to the Strong Towns project is a question of who makes decisions, of building local capacity, and of making local government the highest form of collaboration for people (not merely an implementation tool of state and federal policy). These are difficult conversations where people have a lot of sensitivities -- I hope you've seen me engaging with them with an awareness of that sensitivity.
Looking at these relationships primarily through the lens of privilege and power is distorting. For example, the city/township system in Michigan was created in the Land Ordinance of 1785 as a way to settle the new Louisiana Territory, not by modern people to institutionalize racism. That doesn't mean the system is great or can't be reformed, but more that the rhetoric of BITFD is rather distorted.
But this is the exception, not the rule. The historical reality is that, almost everywhere, land use decisions were governed by state law (and as we do today for almost all other property rights ex-land use), as derived from English common law. While there were controls on those decisions (e.g., private suits for nuisance), those were not locally-created claims, and the law was defined largely by the absence of prescriptive regulation. There is no longstanding legal or historical principle supporting local land use in the way we use it today, which did not emerge in anything resembling its current form until the 20th century.
I've seen this asserted over and over -- that land use is state enabled and thereby solely a function of the state. If this is a description of the current state of things, I agree that this is a defensible assertion (though I would argue there is a lot of nuance). When this is asserted as an historical fact, it is wildly off the mark. Land use law in the US grew out of local action, centuries of local planning and regulating land use. It was not created by the state and then bestowed upon cities. It is subsumed by the state.
There is a lot of overlap between Bitcoin people and YIMBYs, which makes this historical lesson even more interesting. The former make this assertion about bottom-up power in crypto not recognizing that (obviously) it will be subsumed by the state when it rivals the state's interests. We already see that happening. The latter treat state enabling like that is where zoning started, blind to the centuries of history that show otherwise. It's always been an odd mental pairing to me.
If you’re willing to post your sources I’m more than willing to read them and reevaluate my understanding. My knowledge comes principally from casebooks written by law professors on land use regulation and property, and particularly on their explanation of the evolution and development of property and land use law in the US. I don’t think it’s likely that scholars in the field completely missed what you describe when they covered many less important topics in the same time period, but maybe I’m wrong and am willing to be shown so. In any event I don’t deny (and never claimed) that there are bottom-up forces at work as well; a lot of our law begins as non-legal processes originating from local communities discovering pragmatic solutions to immediate issues, which are later formalized and imposed as laws to address the challenges that come with scale.
The Puritans landed with laws and plans that governed how they would live, including how they would divide and develop land. I mean, I don't think we're talking about the same thing here, or at least not in the same way.
Contra point, it hasn’t been great aggregating too much transportation infrastructure and decisions making up into the state DOT level. Is that a fundamental feature of scaling? Or because US engineering is captured by some really bad ideas? Idk
I do think that we see quite different results internationally, and my anecdotal read is that it has more to do with ideas and culture than scale.
(Electoral legibility is also an important concern—it’s often not clear what you’ll get out of your elected parties/reps). Ie if you don’t like your DOT putting a highway thru town, who can I vote for / pressure to stop that. And it’s like… not supper clear other than (maybe) the governor.
So this is an interesting point. Going to take my YIMBY Action hat off for a second - we love transit, but it’s officially outside our remit - and respond just as an individual urbanist.
I think you’re right that state level DOTs have been meh (assuming we’re broadly talking about the same thing), but I don’t think that’s an issue of scale; instead I think it’s an issue of them having the wrong “business model” and therefore the wrong incentives.
Gov, at whatever level, doesn’t have the opportunity to fully internalize the (land) value they create by building transit infra, so we get the wrong kinds, or in the wrong places, or the wrong amount, etc.
So, here, I feel like I’m kinda putting a Strong Towns hat on and thinking about the financing model and the success metrics that create whatever feedback look govs are responding to.
US Engineering is *definitely* captured by some really bad ideas, so this is, indeed, something to think about w/r/t scaling up decision making on housing. That said, I just think the incentives at the local/town level are *always* against building sufficient housing to align with demand. If anything, transportation is the opposite in the sense that the state/region wants to prioritize through movement while the locality may want to prioritize safety/placemaking/walkability.
I agree with state DOTs being often being dysfunctional, although it's difficult to tease out how much of that is attributable to scale issues or bad ideas vs. the bizarre funding mechanisms we've established across levels of government.
I think scale has some effect, but the scale we impose legally (e.g., city -> county -> state -> federal) is different than what emerges economically, and the resulting misallocation of power across and between levels results in poor outcomes. This is why some folks idealize city-states or Swiss cantons as a superior organizational unit to what we have today. Of course we can't change our fundamental organizational units of government, but we can implement regional authorities (subject to some constraints) as discussed elsewhere in this thread.
If you look at a good transit system anywhere in the world, it _is_ planned regionally. Even in the US, where our transit systems are pretty terrible, if you look at the ones that work even remotely well (basically NYC and Boston), there is a regional authority that coordinates a system across city and county boundaries.
You _need_ a regional authority, in order to make intelligent decisions about capital investments in any one location that benefit the system as a whole.
This doesn't mean you want to shut local authorities out entirely, but the problem with US transit is that it refuses to learn anything from Europe and Asia, and it's caught in the delusion that privatization / outsourcing will improve efficiency.
1) We need decisions made at an appropriate scale (the deciding entity). (I htink this cuts two ways, one there's the scope of power required and impacts; second, there is the "sufficient competence" which is really more about the presence of adequate resources/expertise. (This is tricky in part because the expertise needed (and present in the populace) has changed with time--consider all the beautiful buildings built without architects; parks without landscape architects).
2) We need a business model for the deciding entity (fiscal and accountability (either direct electoral or reporting to elected)) that is responsive to things we care about (economic, inclusion, environment, etc.)
3) We need the culture of the deciding entity to embrace the virtues of stewardship, humility, and curiosity.
Does this sound roughly right?
If we consider transportation (not even transit per se):
1) Network decisions should be at a regional scale (the level of interconnection); but interface decisions should be made at a local scale (the level of effect). Local entities may be limited in capacity (and so might regional entities frankly), and so might benefit from regional standards locally applied (but how is that different than status quo?)
2) who do the engineers work for? Where does their funding come from? Here chucks point shines out, if federal dollars are the big source, who cares about local performance. It’s a kind of resource curse.
3) what is the culture of transportation engineering? Here we look at the training (where they get more semesters of chemistry than transportation), the apprenticeship (in firms that follow the dollars to large highway projects).
I think it’s possible that it can be both the case that we have a system that is over scaled and top down (business model), but that it doesn’t follow that we should flip everything upside down.
I greatly appreciate the thoughtful dialog in your piece. I think recent events here in Washington highlight the virtues and drawbacks of both sides of this issue. WA house bill 1110 was a major victory for middle housing in the state. While I've been hesitant about state preemption, I feel HB 1110 was necessary to break through the logjam. I think it's successful in large part because its primary effect is fairly simple:
1: cities shall allow not less than 4-6 units on all residential lots
2: cities shall not impose requirements on middle housing that it doesn't also apply to single-family homes
There are additional details, and the bill deals with some ancillary issues like parking, but the main thrust is straightforward.
More recently, the state adopted HB 1491 (the "TOD bill"). While I appreciate what it was trying to do, I see it as a pretty bad bill that exemplifies the downsides of top down mandates. For starters, we recently fought in Spokane to eliminate FAR as a limiting factor on development. Through the TOD bill, the state has now decided that cities have to allow a specific FAR in areas near transit--we're still trying to figure how to comply. The bill is extremely complicated and lengthy--no doubt a result of trying to please various constituencies, so we're still trying to digest the implications. In addition to zoning requirements, there are affordability requirements and tax abatement programs included. It's the opposite of the "do one thing and do it well" approach that makes for effective scaling of a system.
If we think about how various levels of government are supposed to work, it has always been the case that bigger levels of government exist in tension with smaller levels as people's rights are in tension with a local majority's desires. No one should be decrying a big government takeover when the feds tell southern towns they can't pass anti-black laws. So when a state steps in and says that local zoning infringes on the rights of property owners, that's a perfectly normal conflict between state and local governments. "Local control" always exists within the limits of what is legally controllable, to the annoyance of many cities that would love to buldoze "blighted" areas but can't because top-down government says they can't. "No, you cannot kick poor people out of your town" and "no, you cannot outlaw apartments" are not fundamentally different types of top-down lawmaking.
I think a key weakness of Marohn applying the knowledge problem to housing is that it assumes local landowners & builders who want to build housing are lacking in some knowledge about what would work locally. If a specific building isn't going to find enough tenants there is already a very strong & built-in disincentive against building it. It's not clear that local or state actors who aren't either the landowner or builder can add anything of value to the decision. A world with no zoning (or total state pre-emption of local control) is a maximally local control world - the lot owner is the most local decision maker with respect to any potential change on their lot.
I didn't understand this comment and had to read it numerous times before I realized you were advocating on behalf of developers (local landowners and builders). I think developers are really important, and force them to be heroic to do things that should be very simple and straightforward, but I'm not going to canonize them or ascribe to them some level of insight beyond a normal human.
In my decade+ doing local permitting work, I ran into a LOT of really dumb developers. The intelligence is kind of a Darwinian, collective intelligence that comes from the market destroying the maladapted. I am all in favor of that kind of system, but I don't think we get there -- or anywhere close -- by removing all zoning.
TBC I am not suggesting the people who build buildings are more insightful or intelligent that the rest of us.
I am suggesting that within a given municipality (assuming we are not talking about annexation or sprawl, just straight up infill - replacing a house with a duplex or a townhouse or yes, god forbid, apartments). whether or not a give building should exist can & should be mostly a private decision. Not because the homeowner or builder involved know better but because they are the ones with skin in the game - they will lose money or go bankrupt if they make a bad decision.
When it comes to land use, broad definitions of skin in the game lead to building & floorspace shortages. If we believe that everyone with 100 miles has a stake in whether a building can be 1000 sqft or 2000 sqft, I'm not sure there's a way back from that.
Why do you go to such extremes? I've never asserted anything like a 100 mile radius. If we can agree that state preemption is the largest radius of decision-making -- and we want a smaller radius -- than I think we can talk about how we empower collections of neighborhoods (and empower means with both rights and responsibilities).
My experiences over the last eight years of public hearings and other public events about housing have not made me optimistic about neighbourhoods being the lowest level or the correct level for land use decision decisions. To be clear I don’t think they belong at the state or federal level either, I think they largely belong at lowest level - the lot level. State preemption is only useful in my opinion to the extent that it can prevent cities from raising the circle of decision-making, too high, or too large.
There are risks with pushing this at the state level. If the notion is the state government has a say on these things, it very well may have a say in ways we'd rather not see. The same state government that can say municipalities may not have parking minimums may also set parking minimums in state law.
That kinda makes our point, no? State governments already do have a say. Sure, they typically farm out the decision to municipalities, but local government only ever has the powers gifted to it by state legislatures.
So, the fact that this is the case and that, to my knowledge, no state government has ever set parking minimums statewide buttresses the argument that state governments - because they have to take the bigger picture and longer run into account - are structurally less NIMBY than local governments.
I would be very cautious with this. Whatever say state governments may have, the paradigm as a whole has been that they will leave certain matters up to the local governments. The end of that could result in adding restrictions at the state level that will prevent local reforms.
To stick with Chuck's neck of the woods, 92% of households in Minnesota have at least one car. It's one thing in a place like Minneapolis or St. Paul where ownership is lower and more people w/ cars can at least envision being able to do things without one. But if anything rural towns and regional cities are much more dependent on autos, if not down right toast without them.
Opening up the state having a say in local things like how many housing units may be on a property, could also open up to the state deciding to have a say in off street parking requirements, offsets, et al. That very well could go the wrong way, especially if something things are mischaracterized. And those of us who remember Willie Horton know all too well that sort of thing happens in politics.
Point taken, I think there's another part of our argument that comes up here, though. Namely, that we don't see state governments as doing random stuff; or, perhaps more to the point, we don't see them as being nearly as aloof and technocratic as this fear makes them out to be.
In the broader YIMBY movement, YIMBY Action is very much in the bottoms up camp. We have a whole local chapter system we use to help folks organize to elect both local and state-level politicians. Importantly, there's a lot of pressure applied to and collaboration with electeds once in office. That being the case, the policy ideas that state-level legislators are getting pushed on are policies with grassroots support in communities across a given state. Moreover, if a state law gets passed and there's no organized local support for the reform, cities will often maliciously comply or sometimes simply break the new law state law.
In our view, the process of state-level reform is bottoms up, because it simply has to be.
Circling back to the original argument, we don't believe local reform in isolation is possible because the fight at the local level is so structurally biased. That said, state level action isn't just ceding power to a distant set of bureaucrats - all the people that want to see local reform have to be involved at doing the work at the state level as well, otherwise nothing happens.
More directly, it's much less plausible that a state would do these evil things, because it is much more difficult for local interests to dominate a state legislature the way they can dominate local government.
The resources required for a NIMBY group to convince Karen Bass that a rich LA neighborhood shouldn't have any new dense housing post-wildfires are of a totally different scale than those needed to win over the entire legislature of California.
First off, with all due respect, if you think the state setting parking minimums is "evil", you may be out of touch with the other 96% of the world. I don't say this to be snarky. It's important in the sense of explaining why you appear to be quite confident that any changes at the state level will only go in the direction of the policy you desire. That's not a given.
I do not see any evidence that there's a group of people in Marshall, Minnesota or Thief River Falls are pushing for their representatives to end parking minimums or allow multiple housing units on a single property. I do see folks in Mankato and Cloquet telling their reps to not turn their city into Minneapolis.
Maybe the support for your favored reforms is there statewide. From what I've seen, I would say if this becomes accept that the state weighs in on street parking and set backs, chances are the law is swinging the other way. Minneapolis does those things and we don't want to become Minneapolis, after all.
I feel like a compromise could be made with states setting targets and localities deciding how to meet them with carrots as well as a few sticks. Perhaps also states could provide funding for architects to offer design suggestions. You, town, tell us your empty lots, redevelopable areas, and ugly houses that people are willing to sell or change.. We will provide mockups to show the community. Also, much more could perhaps be done with incentives. If you agree to a larger building near you, you get a meaningful break on your property taxes for a couple years. Communities that meet targets collectively get a small break on property taxes or state income taxes. After all, they are making it possible for more taxes.
I don't think you're naive at all, and in fact this is how many states end up with “fair share” laws, and how California ended up with their version called Regional Housing Needs Assessment (RHNA) and Housing Elements.
Unfortunately, in practice they frequently end up as complete disasters because you don't actually solve the “cold war” problem. Cities come up with ever elaborate ways to appear to comply without actually complying, while the state regulator lacks the political juice to sufficiently crack down on cities. They frequently create implementation and enforcement nightmares.
I'm a Land Development Planner for a homebuilder in Asheville, NC, so from a homebuilder/developer perspective, the whole local control vs. state preemption debate has definite pros/cons.
"Preemption" tends to be a triggering term, but another word could be "standardization", as in, "State law allows (i.e. standardizes) 1-4 unit residential construction on any residentially-zoned parcel pending performance zoning factors like water/wastewater capacity, etc." That was essentially the focus of N.C. Senate Bill 349 (Increase Housing Opportunities, 2021, never adopted) and N.C. Senate Bill 497 (Expand Middle Housing, 2025, never adopted, and admittedly more clumsily drafted than SB 349 in 2021).
And directly relevant to zoning codes across the state, the North Carolina Residential Code (i.e. residential building code) now allows 1-4 unit residential construction (was previously 1-2 units).
Aligning local zoning residential districts (i.e. "General Residential" zoning district that allows 1-4 unit residential) with the N.C. Residential Code (1-4 units is residential; 5 units or more still subject to N.C. Building Code [i.e. commercial code] with could be a way to broadly increase housing capacity across the state.
I view state-wide "standardization" as a pro, as it creates greater predictability and consistency for what Permitted Uses can be built and where they can be built.
Well said. To lean into the Strong Towns parlance, we all want to restore bottom up community planning. Which means restoring agency over residential land use to the lowest level of decision-making possible, the individual property owner
State legislation that helps restore decision-making to the individual landowner isn’t the same as state-driven highway planning or other top down policies, it’s a fundamental part of reviving true bottom-up planning. State-level advocacy doesn’t replace the local organizing, it’s a complement
Shout out Ryan Pyzucki from City of Yes and Strong Towns board president Andrew Burleson for making similar arguments about the “lowest level of decision making” in the past
Well said.
Just quickly -- I don't agree with the notion that the lowest level of decision-making on land use issues should be the individual property owner. The most conservative Supreme Court rulings of the last 100+ years also don't agree. And, I would estimate at least 95% of Americana don't agree as applied to their neighborhood.
It's going to be really problematic if central to the YIMBY project is pushing what nearly everyone outside of it will view as a radical, extreme position.
Thanks for your reply Charles, enjoy your vacation! More to discuss when you return
Thanks for writing this, it's really good!
This is a thoughtful letter, and I appreciate the effort to genuinely quote me using my own words in a strong version of my arguments. Much respect.
I am walking out the door for some time off and won't engage with this at the level it deserves for a while, but I do want to engage. In a deeply philosophical sense, we might be way off from each other, but in a practical sense, probably not. I'm excited to explore that.
Appreciate the engagement in the spirit of good debate! I think I see it similarly that we may have philosophical differences, which land us in similar places in practice.
We had a whole bit about how state legislation actually requires winning hearts and minds in numerous places, and how "all politics is local" because state legislators must care about how things play in their home jurisdiction, so state bills can't get too far into "top down" legislating. But it was already getting a bit long. That's another angle where I think we end up in a very similar place, ie organizing locally.
Looking forward to it!
I am a long time Strongtowns guy, and cofounder of a local chapter. . . and I honestly don't really get the point of the apparent critique crusade against Abundance and YIMBYs. I am also happy to place myself in both of those camps. Also, it is not as if YIMBYism is some specific and narrow doctrine [expect maybe of Twitter/X, but who cares, that's not reality]. IRL, I know self-described YIMBYs who disagree on all manner of related details.
In Michigan the current city-township system was created for explicitly racist purposes, and the existing - sometimes almost comical - boundaries exist to service those purposes. For heaven's sake, my own city of Grand Rapids, MI **contains** another city (East Grand Rapids) for this reason. These boundaries are not logical, and they are not laid out with any idea of coherence or efficiency. The power of land-use is delegated to cities and townships **by** the state, so even describing state action as "preemption" is IMNSHO disingenuous, the state is simply the superior in the hierarchy. By such logic the state is exercising "preemption" in nearly everything it does; it does not, for example, allow cities to modify the building code(s), have ranked-choice voting, levy a sales tax, operate a fiscal deficit, impose rent control, etc...
I agree that for this topic the state is the arbiter of policy more so than the city; and the purpose of local governments is primarily to diffuse power down to what are little better than cabals which use those rules to protect their own privileged position.
I agree with all the arguments in The Housing Trap about financing, and that is a real factor in the housing affordability crisis. But I don't see clearly how the Abundance and YIMBY crowds are denying that reality - at least in IRL conversation people under the various banners all seem to "get" that.
Well said. I am likewise in both camps and baffled by some of the fighting.
I’ve come to wonder if we shouldn’t underestimate how damaging the fights between Chuck and certain very online Twitter YIMBYs have been over the years.
There are meaningful, useful intellectual debates rendered into something else by hard personal feelings.
Seth, I think you're saying -- and you've said before to me -- that there is some kind of emotional reaction I'm having to the YIMBY Twitter hordes that prevents me from hearing other assertions and considering them. In the moment, maybe, but overall that's kind of demeaning. It might not be that my emotions prevent me from hearing you -- I might just disagree. And that's okay; we don't have to see this the same way.
I think the YIMBY movement (probably like literally all of our politics) has been damaged deeply by the gap between the people doing the most work and the people doing the most posting. The impressions people have of perspectives they mildly disagree with get completely absurd.
I don't think it's just that the emotions prevent us from seeing clearly, I think we end up with misunderstandings about who is influential in a movement and what do they actually think and prioritize. I think it's a huge problem for everyone in movement politics.
Adam, I appreciate the work you're doing. I hope you're being hyperbolic in suggesting I've been on a "critique crusade." Central to the Strong Towns project is a question of who makes decisions, of building local capacity, and of making local government the highest form of collaboration for people (not merely an implementation tool of state and federal policy). These are difficult conversations where people have a lot of sensitivities -- I hope you've seen me engaging with them with an awareness of that sensitivity.
Looking at these relationships primarily through the lens of privilege and power is distorting. For example, the city/township system in Michigan was created in the Land Ordinance of 1785 as a way to settle the new Louisiana Territory, not by modern people to institutionalize racism. That doesn't mean the system is great or can't be reformed, but more that the rhetoric of BITFD is rather distorted.
But this is the exception, not the rule. The historical reality is that, almost everywhere, land use decisions were governed by state law (and as we do today for almost all other property rights ex-land use), as derived from English common law. While there were controls on those decisions (e.g., private suits for nuisance), those were not locally-created claims, and the law was defined largely by the absence of prescriptive regulation. There is no longstanding legal or historical principle supporting local land use in the way we use it today, which did not emerge in anything resembling its current form until the 20th century.
I've seen this asserted over and over -- that land use is state enabled and thereby solely a function of the state. If this is a description of the current state of things, I agree that this is a defensible assertion (though I would argue there is a lot of nuance). When this is asserted as an historical fact, it is wildly off the mark. Land use law in the US grew out of local action, centuries of local planning and regulating land use. It was not created by the state and then bestowed upon cities. It is subsumed by the state.
There is a lot of overlap between Bitcoin people and YIMBYs, which makes this historical lesson even more interesting. The former make this assertion about bottom-up power in crypto not recognizing that (obviously) it will be subsumed by the state when it rivals the state's interests. We already see that happening. The latter treat state enabling like that is where zoning started, blind to the centuries of history that show otherwise. It's always been an odd mental pairing to me.
If you’re willing to post your sources I’m more than willing to read them and reevaluate my understanding. My knowledge comes principally from casebooks written by law professors on land use regulation and property, and particularly on their explanation of the evolution and development of property and land use law in the US. I don’t think it’s likely that scholars in the field completely missed what you describe when they covered many less important topics in the same time period, but maybe I’m wrong and am willing to be shown so. In any event I don’t deny (and never claimed) that there are bottom-up forces at work as well; a lot of our law begins as non-legal processes originating from local communities discovering pragmatic solutions to immediate issues, which are later formalized and imposed as laws to address the challenges that come with scale.
The Puritans landed with laws and plans that governed how they would live, including how they would divide and develop land. I mean, I don't think we're talking about the same thing here, or at least not in the same way.
Contra point, it hasn’t been great aggregating too much transportation infrastructure and decisions making up into the state DOT level. Is that a fundamental feature of scaling? Or because US engineering is captured by some really bad ideas? Idk
I do think that we see quite different results internationally, and my anecdotal read is that it has more to do with ideas and culture than scale.
(Electoral legibility is also an important concern—it’s often not clear what you’ll get out of your elected parties/reps). Ie if you don’t like your DOT putting a highway thru town, who can I vote for / pressure to stop that. And it’s like… not supper clear other than (maybe) the governor.
So this is an interesting point. Going to take my YIMBY Action hat off for a second - we love transit, but it’s officially outside our remit - and respond just as an individual urbanist.
I think you’re right that state level DOTs have been meh (assuming we’re broadly talking about the same thing), but I don’t think that’s an issue of scale; instead I think it’s an issue of them having the wrong “business model” and therefore the wrong incentives.
Gov, at whatever level, doesn’t have the opportunity to fully internalize the (land) value they create by building transit infra, so we get the wrong kinds, or in the wrong places, or the wrong amount, etc.
So, here, I feel like I’m kinda putting a Strong Towns hat on and thinking about the financing model and the success metrics that create whatever feedback look govs are responding to.
US Engineering is *definitely* captured by some really bad ideas, so this is, indeed, something to think about w/r/t scaling up decision making on housing. That said, I just think the incentives at the local/town level are *always* against building sufficient housing to align with demand. If anything, transportation is the opposite in the sense that the state/region wants to prioritize through movement while the locality may want to prioritize safety/placemaking/walkability.
I agree with state DOTs being often being dysfunctional, although it's difficult to tease out how much of that is attributable to scale issues or bad ideas vs. the bizarre funding mechanisms we've established across levels of government.
I think scale has some effect, but the scale we impose legally (e.g., city -> county -> state -> federal) is different than what emerges economically, and the resulting misallocation of power across and between levels results in poor outcomes. This is why some folks idealize city-states or Swiss cantons as a superior organizational unit to what we have today. Of course we can't change our fundamental organizational units of government, but we can implement regional authorities (subject to some constraints) as discussed elsewhere in this thread.
This is definitely raising an important issue, but I think my response is basically just "listen Alon Levy".
https://www.volts.wtf/p/us-transit-costs-and-how-to-tame
If you look at a good transit system anywhere in the world, it _is_ planned regionally. Even in the US, where our transit systems are pretty terrible, if you look at the ones that work even remotely well (basically NYC and Boston), there is a regional authority that coordinates a system across city and county boundaries.
You _need_ a regional authority, in order to make intelligent decisions about capital investments in any one location that benefit the system as a whole.
This doesn't mean you want to shut local authorities out entirely, but the problem with US transit is that it refuses to learn anything from Europe and Asia, and it's caught in the delusion that privatization / outsourcing will improve efficiency.
Indeed. If I can synthesize:
1) We need decisions made at an appropriate scale (the deciding entity). (I htink this cuts two ways, one there's the scope of power required and impacts; second, there is the "sufficient competence" which is really more about the presence of adequate resources/expertise. (This is tricky in part because the expertise needed (and present in the populace) has changed with time--consider all the beautiful buildings built without architects; parks without landscape architects).
2) We need a business model for the deciding entity (fiscal and accountability (either direct electoral or reporting to elected)) that is responsive to things we care about (economic, inclusion, environment, etc.)
3) We need the culture of the deciding entity to embrace the virtues of stewardship, humility, and curiosity.
Does this sound roughly right?
If we consider transportation (not even transit per se):
1) Network decisions should be at a regional scale (the level of interconnection); but interface decisions should be made at a local scale (the level of effect). Local entities may be limited in capacity (and so might regional entities frankly), and so might benefit from regional standards locally applied (but how is that different than status quo?)
2) who do the engineers work for? Where does their funding come from? Here chucks point shines out, if federal dollars are the big source, who cares about local performance. It’s a kind of resource curse.
3) what is the culture of transportation engineering? Here we look at the training (where they get more semesters of chemistry than transportation), the apprenticeship (in firms that follow the dollars to large highway projects).
I think it’s possible that it can be both the case that we have a system that is over scaled and top down (business model), but that it doesn’t follow that we should flip everything upside down.
Buildings without architects … I did not realize
This is true. State DOTs primarily are focused on state roads.
I did manage to put together a follow-up article to this. You can read it here: https://clmarohn.substack.com/p/is-the-city-the-problem-or-the-solution
I greatly appreciate the thoughtful dialog in your piece. I think recent events here in Washington highlight the virtues and drawbacks of both sides of this issue. WA house bill 1110 was a major victory for middle housing in the state. While I've been hesitant about state preemption, I feel HB 1110 was necessary to break through the logjam. I think it's successful in large part because its primary effect is fairly simple:
1: cities shall allow not less than 4-6 units on all residential lots
2: cities shall not impose requirements on middle housing that it doesn't also apply to single-family homes
There are additional details, and the bill deals with some ancillary issues like parking, but the main thrust is straightforward.
More recently, the state adopted HB 1491 (the "TOD bill"). While I appreciate what it was trying to do, I see it as a pretty bad bill that exemplifies the downsides of top down mandates. For starters, we recently fought in Spokane to eliminate FAR as a limiting factor on development. Through the TOD bill, the state has now decided that cities have to allow a specific FAR in areas near transit--we're still trying to figure how to comply. The bill is extremely complicated and lengthy--no doubt a result of trying to please various constituencies, so we're still trying to digest the implications. In addition to zoning requirements, there are affordability requirements and tax abatement programs included. It's the opposite of the "do one thing and do it well" approach that makes for effective scaling of a system.
Thanks for writing this. Important alliance with a lot of us in both camps. I’ve been trying to grapple with this too. https://open.substack.com/pub/collegetowns/p/college-towns-strong-towns-yimby?r=7f4tk&utm_medium=ios
If we think about how various levels of government are supposed to work, it has always been the case that bigger levels of government exist in tension with smaller levels as people's rights are in tension with a local majority's desires. No one should be decrying a big government takeover when the feds tell southern towns they can't pass anti-black laws. So when a state steps in and says that local zoning infringes on the rights of property owners, that's a perfectly normal conflict between state and local governments. "Local control" always exists within the limits of what is legally controllable, to the annoyance of many cities that would love to buldoze "blighted" areas but can't because top-down government says they can't. "No, you cannot kick poor people out of your town" and "no, you cannot outlaw apartments" are not fundamentally different types of top-down lawmaking.
I think a key weakness of Marohn applying the knowledge problem to housing is that it assumes local landowners & builders who want to build housing are lacking in some knowledge about what would work locally. If a specific building isn't going to find enough tenants there is already a very strong & built-in disincentive against building it. It's not clear that local or state actors who aren't either the landowner or builder can add anything of value to the decision. A world with no zoning (or total state pre-emption of local control) is a maximally local control world - the lot owner is the most local decision maker with respect to any potential change on their lot.
I didn't understand this comment and had to read it numerous times before I realized you were advocating on behalf of developers (local landowners and builders). I think developers are really important, and force them to be heroic to do things that should be very simple and straightforward, but I'm not going to canonize them or ascribe to them some level of insight beyond a normal human.
In my decade+ doing local permitting work, I ran into a LOT of really dumb developers. The intelligence is kind of a Darwinian, collective intelligence that comes from the market destroying the maladapted. I am all in favor of that kind of system, but I don't think we get there -- or anywhere close -- by removing all zoning.
TBC I am not suggesting the people who build buildings are more insightful or intelligent that the rest of us.
I am suggesting that within a given municipality (assuming we are not talking about annexation or sprawl, just straight up infill - replacing a house with a duplex or a townhouse or yes, god forbid, apartments). whether or not a give building should exist can & should be mostly a private decision. Not because the homeowner or builder involved know better but because they are the ones with skin in the game - they will lose money or go bankrupt if they make a bad decision.
I think your definition of skin in the game is too narrow.
When it comes to land use, broad definitions of skin in the game lead to building & floorspace shortages. If we believe that everyone with 100 miles has a stake in whether a building can be 1000 sqft or 2000 sqft, I'm not sure there's a way back from that.
Why do you go to such extremes? I've never asserted anything like a 100 mile radius. If we can agree that state preemption is the largest radius of decision-making -- and we want a smaller radius -- than I think we can talk about how we empower collections of neighborhoods (and empower means with both rights and responsibilities).
My experiences over the last eight years of public hearings and other public events about housing have not made me optimistic about neighbourhoods being the lowest level or the correct level for land use decision decisions. To be clear I don’t think they belong at the state or federal level either, I think they largely belong at lowest level - the lot level. State preemption is only useful in my opinion to the extent that it can prevent cities from raising the circle of decision-making, too high, or too large.
There are risks with pushing this at the state level. If the notion is the state government has a say on these things, it very well may have a say in ways we'd rather not see. The same state government that can say municipalities may not have parking minimums may also set parking minimums in state law.
Hey Carl, thanks for the read!
That kinda makes our point, no? State governments already do have a say. Sure, they typically farm out the decision to municipalities, but local government only ever has the powers gifted to it by state legislatures.
So, the fact that this is the case and that, to my knowledge, no state government has ever set parking minimums statewide buttresses the argument that state governments - because they have to take the bigger picture and longer run into account - are structurally less NIMBY than local governments.
I would be very cautious with this. Whatever say state governments may have, the paradigm as a whole has been that they will leave certain matters up to the local governments. The end of that could result in adding restrictions at the state level that will prevent local reforms.
To stick with Chuck's neck of the woods, 92% of households in Minnesota have at least one car. It's one thing in a place like Minneapolis or St. Paul where ownership is lower and more people w/ cars can at least envision being able to do things without one. But if anything rural towns and regional cities are much more dependent on autos, if not down right toast without them.
Opening up the state having a say in local things like how many housing units may be on a property, could also open up to the state deciding to have a say in off street parking requirements, offsets, et al. That very well could go the wrong way, especially if something things are mischaracterized. And those of us who remember Willie Horton know all too well that sort of thing happens in politics.
Point taken, I think there's another part of our argument that comes up here, though. Namely, that we don't see state governments as doing random stuff; or, perhaps more to the point, we don't see them as being nearly as aloof and technocratic as this fear makes them out to be.
In the broader YIMBY movement, YIMBY Action is very much in the bottoms up camp. We have a whole local chapter system we use to help folks organize to elect both local and state-level politicians. Importantly, there's a lot of pressure applied to and collaboration with electeds once in office. That being the case, the policy ideas that state-level legislators are getting pushed on are policies with grassroots support in communities across a given state. Moreover, if a state law gets passed and there's no organized local support for the reform, cities will often maliciously comply or sometimes simply break the new law state law.
In our view, the process of state-level reform is bottoms up, because it simply has to be.
Circling back to the original argument, we don't believe local reform in isolation is possible because the fight at the local level is so structurally biased. That said, state level action isn't just ceding power to a distant set of bureaucrats - all the people that want to see local reform have to be involved at doing the work at the state level as well, otherwise nothing happens.
More directly, it's much less plausible that a state would do these evil things, because it is much more difficult for local interests to dominate a state legislature the way they can dominate local government.
The resources required for a NIMBY group to convince Karen Bass that a rich LA neighborhood shouldn't have any new dense housing post-wildfires are of a totally different scale than those needed to win over the entire legislature of California.
First off, with all due respect, if you think the state setting parking minimums is "evil", you may be out of touch with the other 96% of the world. I don't say this to be snarky. It's important in the sense of explaining why you appear to be quite confident that any changes at the state level will only go in the direction of the policy you desire. That's not a given.
I do not see any evidence that there's a group of people in Marshall, Minnesota or Thief River Falls are pushing for their representatives to end parking minimums or allow multiple housing units on a single property. I do see folks in Mankato and Cloquet telling their reps to not turn their city into Minneapolis.
Maybe the support for your favored reforms is there statewide. From what I've seen, I would say if this becomes accept that the state weighs in on street parking and set backs, chances are the law is swinging the other way. Minneapolis does those things and we don't want to become Minneapolis, after all.
I feel like a compromise could be made with states setting targets and localities deciding how to meet them with carrots as well as a few sticks. Perhaps also states could provide funding for architects to offer design suggestions. You, town, tell us your empty lots, redevelopable areas, and ugly houses that people are willing to sell or change.. We will provide mockups to show the community. Also, much more could perhaps be done with incentives. If you agree to a larger building near you, you get a meaningful break on your property taxes for a couple years. Communities that meet targets collectively get a small break on property taxes or state income taxes. After all, they are making it possible for more taxes.
This is probably very naive.
I don't think you're naive at all, and in fact this is how many states end up with “fair share” laws, and how California ended up with their version called Regional Housing Needs Assessment (RHNA) and Housing Elements.
Unfortunately, in practice they frequently end up as complete disasters because you don't actually solve the “cold war” problem. Cities come up with ever elaborate ways to appear to comply without actually complying, while the state regulator lacks the political juice to sufficiently crack down on cities. They frequently create implementation and enforcement nightmares.
This.
I'm a Land Development Planner for a homebuilder in Asheville, NC, so from a homebuilder/developer perspective, the whole local control vs. state preemption debate has definite pros/cons.
"Preemption" tends to be a triggering term, but another word could be "standardization", as in, "State law allows (i.e. standardizes) 1-4 unit residential construction on any residentially-zoned parcel pending performance zoning factors like water/wastewater capacity, etc." That was essentially the focus of N.C. Senate Bill 349 (Increase Housing Opportunities, 2021, never adopted) and N.C. Senate Bill 497 (Expand Middle Housing, 2025, never adopted, and admittedly more clumsily drafted than SB 349 in 2021).
And directly relevant to zoning codes across the state, the North Carolina Residential Code (i.e. residential building code) now allows 1-4 unit residential construction (was previously 1-2 units).
Aligning local zoning residential districts (i.e. "General Residential" zoning district that allows 1-4 unit residential) with the N.C. Residential Code (1-4 units is residential; 5 units or more still subject to N.C. Building Code [i.e. commercial code] with could be a way to broadly increase housing capacity across the state.
I view state-wide "standardization" as a pro, as it creates greater predictability and consistency for what Permitted Uses can be built and where they can be built.