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It’s Hard for States to Force Housing Reform on Local Communities. Just Ask Colorado’s Governor.

A state can try to compel its cities to build more, but the results are at best modest. As Gov. Jared Polis learned, even getting zoning reforms enacted can be an insurmountable challenge.

Denver residential neighborhood
A residential neighborhood within view of downtown Denver. Gov. Jared Polis’ failed zoning reform bill would have placed a whole array of zoning and housing policy obligations on many of Colorado’s cities and counties. (Shutterstock)
There’s a time-honored principle in law that it’s very difficult, often impossible, to compel performance. It’s much easier to block a person or institution from doing something than it is to make them do it. Of course, there are counter-examples. When it comes to urban planning, we require developers to build parking spaces and install smoke detectors, and they have to comply.

By and large, though, the principle holds in the tenuous relationship between states and localities. Legislatures have kept themselves busy these last few years pre-empting localities from doing all sorts of things: raising the minimum wage, cracking down on fossil fuel emissions, teaching critical race theory — all sorts of things. But when they try to compel the locals to actually do something, the task becomes a lot harder.

It was extremely hard this spring in Colorado, where Gov. Jared Polis introduced a massive zoning reform bill known as More Housing Now, which as initially drafted would have placed a whole array of obligations on many of the state’s cities and counties in zoning and housing policy. They would be forced to allow construction of multifamily buildings with up to six residential units; permit larger buildings everywhere in the vicinity of transit stations; accept accessory dwelling units next to houses in all single-family neighborhoods; and eliminate mandates for minimum numbers of parking spaces in new developments. If they didn’t comply, the state Department of Local Affairs would cite them for a code violation.

The final legislation established tiers of Colorado cities. The largest cities, classified as Tier 1, would be held to all the density requirements near transit stations. But smaller Tier 2 cities would simply be asked to submit plans for how they might accommodate future density, although they would have to allow accessory dwelling units in their neighborhoods. Communities designated as “rural resort job center towns” would be exempted from most of the regulations. But if any local government failed to meet ”minimum standards,“ it could still be in trouble with the state.

It was a bold effort to address the housing shortage that had become endemic in most of Colorado. “We need to change the way we do things,” the Democratic governor explained to a local newspaper. “It only gets worse if we don’t change our course. … Local governments need to step up and be part of the solution.”

Colorado has some of the highest housing costs in the nation. Between 2017 and 2022, rents in the state went up by an average of 30 percent. In some cities, it was 50 percent. A study by the Pew Charitable Trusts concluded that rigid zoning rules were one of the most crucial factors driving up rents in the state.

Local elected officials, however, argued against the plan consistently and stridently. Faced with a backlash that intense, Polis and his allies made some significant modifications. The mandate to allow multi-unit housing, originally designed to apply to virtually all of a large city, was rewritten to focus only on communities within a half-mile of transit stations. It is estimated that two-thirds of rail stations in the Denver area are currently surrounded by vacant land, parking lots or low-density development.
Colorado Gov. Jared Polis
Colorado Gov. Jared Polis: “We need to change the way we do things” to address the state’s housing shortage, he said in pushing his zoning-reform plan. “Local governments need to step up and be part of the solution.” (RJ Sangosti/Denver Post/TNS)
In the end, though, it wasn’t enough. The amended bill died on the last day of the legislative session when the House and Senate failed to agree on the details. It was a major defeat for Polis — a relatively rare one — inflicted by a legislature whose chambers were both under his party’s control.

THIS HAS BEEN A BUSY COUPLE OF YEARS for zoning reform campaigns in the states, especially in the West. Oregon and California both have enacted laws allowing state agencies, in some cases, to impose mandates on local governments. Montana, surprising many observers in a mostly red state, passed similar legislation this year.

But 2023 has seen conspicuous failures. Arizona’s Legislature debated and rejected a bill that would have required cities of more than 30,000 population to allow new units on lots of less than 4,000 square feet. A study conducted at Arizona State’s Morrison Institute concluded that the state needed 270,000 new dwellings to meet the needs of its burgeoning population. But the plan was rejected by the state Senate.

More dramatically, New York Gov. Kathy Hochul suffered an embarrassing defeat in her effort to give the state broad powers over local zoning as a means of eventually creating 800,000 new affordable units. Hochul was forced to agree to a budget that essentially repudiated her housing reform policies.

As these things were happening, there was growing evidence that even when enacted into law, zoning reform mandates were achieving at best modest success. Portland, Ore., with about 160,000 single-family homes, recorded at most a few hundred permits for “missing middle” housing in 2021. The online magazine Slate reports that Los Angeles received 211 multifamily development applications in the year after its zoning reform law took effect. I can’t vouch for the pinpoint accuracy of those numbers, but they do reflect at least a rough reality.

According to Slate, the city of Minneapolis, a pioneer in passing broad-based zoning reforms, counted 48 new duplexes or triplexes on former single-family lots in the two-and-a-half years following its passage of a law loosening zoning restrictions. A study published in Urban Studies concluded that when governments ease development restrictions, the increase in housing supply over a period of three to nine years is 0.8 percent. Most of the new construction, the journal said, is high-end residential. Just last week, a study by the National Association of Home Builders reported that construction of multifamily housing has been lagging and will continue to do so even under current zoning reform experiments.

WHY IS THIS, EXACTLY? Is it because localities are dug in against new housing? Or is there some other explanation? In fact, there is something else at work. Local officials in Colorado, while generally acknowledging the need for more housing at affordable prices, were offended by what seemed to them an infringement of their sovereign rights. “I don’t think the state should tell any local community how to run their land-use planning,” said the mayor of Breckenridge. The executive director of the state Municipal League put it in more apocalyptic terms. He told reporters that the Polis plan “represents the most sweeping pre-emption of local land use and zoning authority that Colorado’s probably ever seen.”

Localities, whatever their ideological stripe, don’t like being told what to do by state legislatures. States don’t like to be mandated by the political establishment in Washington. Sometimes this is duplicitous. In the 19th century, the Confederate states claimed they fought the Civil War to protect states’ rights, but just about everyone else knew this was a fig leaf. They were fighting to protect slavery. In the aftermath of their defeat, they eventually were compelled to integrate their public facilities, but it took a hundred years to make them do it.

But these days, when locals claim that state legislatures are pushing them around, they have a point. Republican legislatures throughout the country have been pre-empting their cities on a wide variety of issues, ordering them not to pass gun control laws, environmental regulations, transgender protections and a raft of other enactments the lawmakers simply don’t like. In most cases, the localities can’t do much about this: States generally have the constitutional right to impose what they want.

Even so, there have been some instances of civil disobedience. A few local prosecutors in Florida have announced they would not bring cases enforcing the state’s new anti-abortion laws. On the other side, some sheriffs in Arizona have said they will ignore any newly enacted gun control statutes. These may be largely symbolic gestures, but they reflect genuine resentments that are not easy to ignore.

To get back to where we started, it’s important to point out that most of the time, states and feds are telling local elected officials what not to do. They aren’t trying to compel performance. Some critics will counter that we require motorists to wear seat belts, and that the vast majority of them do it. But this involves demands on individuals, not governments. Compelling performance by an individual is difficult, but occasionally doable. Compelling actual performance by a local government, and especially by a whole collection of local governments, is a trick that not many governors or legislatures are likely to pull off. Jared Polis found that out the hard way in Colorado.

Yogi Berra once said that “if the people don’t want to come out to the ballpark, nobody’s going to stop them.” I think I know what he meant. Politicians at all levels of government might want to pay attention to it.
Alan Ehrenhalt is a contributing editor for Governing. He served for 19 years as executive editor of Governing Magazine. He can be reached at ehrenhalt@yahoo.com.
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