Zoning Versus the Good Samaritan. Again.
Plus: New York refreshes rent control, AOC and Bernie Sanders call for more, greener public housing, and California's "builder's remedy" wins big in court.
Happy Tuesday and welcome to another edition of Rent Free, where this week's stories include:
- New York City refreshes its housing emergency declaration, and with it, its system of rent stabilization.
- Congress' resident socialists, Rep. Alexandria Ocasio-Cortez (D–N.Y.) and Sen. Bernie Sanders (I–Vt.), have reintroduced their Green New Deal for Public Housing bill.
- California's "builder's remedy" wins big in court.
But first, it's another case of zoning against the Good Samaritan.
Arizona Town Fines Church for Feeding the Hungry
A church in the border town of San Luis, Arizona, is suing the city government after its pastor was fined for distributing food on church property. The Gethsemani Baptist Church argues in a new federal lawsuit that those fines are part of a campaign of "harassment and intimidation" officials are waging against the church's legal, longstanding food ministry.
"This has been a vital ministry helping people, ranging from people crossing the border to people as far as away as Tucson and food pantries around the area that rely on this church to feed people," says Jeremy Dys, an attorney with the First Liberty Institute, which is representing Gethsemani Baptist Church.
Gethsemani Baptist Church, and its pastor Jose Manuel Castro, have been distributing food, clothing, and other essential items to the poor, for over two decades from its property a few blocks from the U.S.-Mexico border.
You are reading Rent Free from Christian Britschgi and Reason. Get more of Christian's urban regulation, development, and zoning coverage.
For almost all that time, the city government was actively supportive of the church's ministry, according to its lawsuit. The city allowed the church to store food in a city-owned warehouse, and local elected officials participated in its food drives.
Since a 2012 zoning code update, the church's operation of a food ministry—which included receiving, storing, and distributing food and hot meals—in a residential area was considered a "legal non-conforming use" by the city.
Dys says the city's amicable relationship with the church ended with the election of San Luis Mayor Nieves Riedel, a named co-defendant in the lawsuit, in late 2022.
Riedel did not respond to Reason's emailed request for comment.
Following her election, the mayor told the church they could no longer store food at a city-owned warehouse nor use the public park across the street from the church to distribute food, per the lawsuit.
Throughout 2023, the church also received letters from the city saying that it couldn't accept semi-truck deliveries on its property and that its storage and distribution of food on-site changed the character of its food ministry from a legal, non-conforming use into an illegal zoning violation.
To appease the city, the church's pastor agreed to minimize the storage of food at the church and to have semi-truck food deliveries brought to a separate property, where they'd then be transferred to a smaller trailer and brought to the church.
Nevertheless, the city continued to assert that the church's food ministry was a zoning code violation. In February, Castro was twice cited by city officials. In the first incident, he received a ticket for handing out food to a crowd of ten people on the church property.
In the second incident, he was ticketed when a semi-truck driver mistakenly arrived at the church with a food delivery. The church's lawsuit claims that the driver was only there for a few minutes before Castro directed him to take the delivery to the off-site location. The next day, a city code enforcer came to the church and ticketed Castro for the incident.
After the second violation, the church stopped its food ministry completely. Its lawsuit notes that a third zoning violation would technically be a misdemeanor that would expose Castro to potential jail time. Already, the first two violations have netted the church $4,000 in fines.
The church's lawsuit accuses the city of San Luis, Riedel, and several other individual city officials, of violating the Church's First Amendment right to free exercise and the federal Religious Land Use and Institutionalized Persons Act (RLUIPA)—which limits the kinds of zoning laws that localities can enforce against religious organizations.
Reason has covered a number of cases where churches' charitable missions have been hamstrung by local zoning regulations and burdensome approval processes.
"The city has a specific target on the back of pastor Castro, trying to intimidate him into submission for engaging in otherwise protected activity. That's the kind of behavior the First Amendment and federal law stand against," says Dys.
Red Vienna, Green Public Housing
Speaking of trying old ideas again, progressive lawmakers, led by Rep. Alexandria Ocasio-Cortez (D–N.Y.) and Sen. Bernie Sanders (I–Vt.), have reintroduced their Green New Deal for Public Housing Act.
According to a press release, the bill would spend between $162 to $234 billion on public housing initiatives. That would include converting existing, aging public housing stock into all-electric, "climate resilient," renewable energy-generating complexes. All this work would be done with unionized labor (naturally).
The bill would also repeal a longstanding policy that prevents the federal government from building more public housing.
"We have seen our counterparts, everywhere from Vienna to Singapore, engage in truly revolutionary public and social housing policies," Ocasio-Cortez told Politico. "And the stigma around public housing has prevented everyday Americans from understanding that we can actually really have incredible housing in the United States under a public model."
Vienna's extensive stock of publicly owned, mixed-income housing developments is a lodestar for left-wing housing activists and policymakers. Even there, public housing units are suffering from deteriorating quality, long waitlists, and funding shortfalls.
In Ocasio-Cortez's own backyard, the U.S. Department of Justice just indicted dozens of public housing employees for allegedly accepting bribes and extorting contractors for smaller repair jobs. This endemic corruption might be adding to the public housing stigma the congresswoman complains about. Certainly, it would be an issue to address before funneling billions of more dollars to the same public housing agencies for green energy upgrades.
A Victory for California's Housing Weapon of Last Resort
California's "builder's remedy"—a weapon of last resort to get housing built in anti-development jurisdictions—just won a major legal victory.
The builder's remedy is a longstanding provision of state law that allows developers to build residential projects of theoretically unlimited density in communities that don't have a state-approved housing plan.
Provided a proposed "builder's remedy" project contains a set number of below-market-rate units, cities can't deny them permits, even if the project doesn't comply with local zoning standards.
Until recently, no one had gotten a builder's remedy project approved. Indeed, prior to a few years ago, few had ever been proposed. One reason for that was that cities can deploy all sorts of procedural tricks to stop builder's remedy projects.
Witness the small Los Angeles community of La Cañada Flintridge, which was refusing to process a developer's builder's remedy project—an 80-unit apartment development on the site of a former church—because it didn't comply with the city's zoning code.
As mentioned, the builder's remedy allows developers to ignore local zoning codes. La Cañada Flintridge tried to argue that they weren't denying the developer's application for violating the zoning code, they were merely refusing to process the application as incomplete because it didn't comply with the local zoning code.
A Los Angeles Superior Court rejected that argument last week, ruling that the city had unlawfully disapproved the builder's remedy project.
"By holding that Builder's Remedy projects cannot simply be defeated by procedural loophole, the court's ruling ensures that Builder's Remedy remains a meaningful and impactful consequence," reads a write-up of the decision by attorneys with the firm Holland & Knight (which litigated the case).
Quick Links
- Pennsylvania lawmakers have introduced a package of housing reforms that would reduce off-street parking requirements for new development, shrink minimum required lot sizes, and allow "middle housing" options like duplexes and triplexes on more residential land in the state.
- The latest Economic Report of the President includes a chapter on housing affordability that praises local zoning reforms and even cites works that argue for abolishing zoning altogether. The report's actual federal policy recommendations are much more modest.
- In a new editorial National Review argues President Joe Biden's proposal to subsidize home buyers will just raise prices.
- New York City Mayor Eric Adams released more details on his proposal to let churches and religious organizations build affordable housing on land they own.
- Another media report of a landlord-tenant dispute treats the fact that the tenant hasn't paid rent in almost as a year as a mere detail.
