Zoning Regulations Empower Control Freaks—and Bigots

The Institute for Justice has launched a project to reform land use regulation.

Imagine you're a member of a religious minority that's on the receiving end of a lot of hate, and the local zoning board is giving you a hard time over plans to expand your house of worship. Is it regulators being their nitpicky selves? Are the neighbors weaponizing rules to squeeze out the cars and foot traffic that accompany any successful endeavor? Or could it be hostility directed at your faith? Zoning has been used and abused in all these ways, which underlines the need for reform.

Bigotry Through Red Tape

"A proposal to dramatically expand Harvard Chabad's Banks Street headquarters failed to win approval from the Cambridge Board of Zoning Appeals during a contentious Thursday public hearing," The Harvard Crimson reported last week. "The rejection leaves the Jewish student organization to revise and clarify the proposal before a follow-up hearing in June."

Harvard Chabad's Rabbi Hirschy Zarchi told me that opposition to the group's expansion has featured many "inappropriate comments" including suggestions that the group is "too visibly Jewish." Other criticism, he says, is more "classic NIMBY," though it sometimes touches on the nature of Chabad in the former of objections to the presence of security often required by Jewish organizations after October 7.

Zarchi and company aren't alone. Just last month, the U.S. Department of Justice warned officials in Hawaii about their efforts to block operation of a Chabad house. The plaintiffs in a lawsuit against Hawaii County "have established a likelihood of success on the merits" of their claims of bias, according to Kristen Clarke, assistant attorney general of the U.S. Justice Department's Civil Rights Division.

Part of the problem in Cambridge could be general opposition to houses of worship, which draw crowds but don't generate much money for revenue-hungry governments.

"Many land-use disputes aren't about explicit bigotry," Emma Green wrote in 2017 for The Atlantic. "They arise from concerns about noise, lost property taxes, and Sunday-morning traffic jams. The effect is largely the same, and can be just as devastating as outright hatred: A religious community is dragged into a lengthy, and costly, dispute with a city or town."

Use of zoning laws to block churches, synagogues, and mosques has been such a problem that it inspired the passage of the Religious Land Use and Institutionalized Persons Act in 2000. "Zoning codes and landmarking laws may illegally exclude religious assemblies in places where they permit theaters, meeting halls, and other places where large groups of people assemble for secular purposes," notes the Department of Justice in a commentary on the law. That the effort wasn't fully successful is apparent from the fact that the Justice Department is still cautioning jurisdictions over land use regulations that, as in Hawaii, explicitly discriminate against religious groups.

Control Freakery Through Red Tape

Perhaps an additional problem in Cambridge is that the zoning board is staffed by control freaks willing to let local NIMBY types wield their power against anything that might generate noise, pedestrians, or prosperity. Land use regulation is, all too often, seen by the pathologically bossy as a way to freeze neighborhoods as if they're snapshots in time or to mold them into desired new forms.

"Young families find themselves locked out of an increasingly expensive housing market. With a single crisis, low-income Americans can find themselves homeless. Entrepreneurs and those engaged in charitable works struggle to find affordable space to turn their ideas into reality," the Institute for Justice's (I.J.) Andrew Wimer wrote this week. "A common thread underlying these crises are the arbitrary lines of zoning codes; hardened rules that too often stand between people and their plans to use their property productively."

Ripe Time for Regulatory Reform

To address the abuse of zoning laws to freeze out housing, commerce, charitable work, and houses of worship, I.J. launched the Zoning Justice Project "to protect and promote the freedom to use property."

Among other cases, I.J. highlights those of Hinga Mbogo, who was forced to move his Dallas auto repair shop when city officials rezoned the area around his land because they preferred prettier businesses, and of Cindy Tucker, whose nonprofit's advocacy of smaller, affordable houses ran afoul of land use regulations in Calhoun, Georgia.

Tucker's case may especially resonate with Americans at a time of high housing costs, with further price increases to come, according to the latest New York Federal Reserve survey. That may help ease the way with what was already a fairly receptive audience for easing land use regulations.

"Americans are modestly supportive (51%) of zoning reforms that would allow more building of homes, condos, and apartments in their community," the Cato Institute's Emily Ekins and Jordan Gygi commented on polling results in December of 2022. "However, support rises more than 20 points to 72% in favor if construction made housing more affordable for young people and young families."

Chances are Americans will be increasingly open to zoning reform amid continuing worries about the prices of places to live and repeat headlines about constructions efforts tangled in red tape.

"17 years of false starts and delays are an extreme instance of how difficult it has long been to build affordable housing in California—for both the homeless as well as lower and middle-income workers—and in other states with complex regulations and high costs," according to a December 2023 article in The Wall Street Journal on challenges faced by a single planned 49-unit apartment complex.

But for those still unpersuaded, there's Harvard Chabad's battle with zoning officials, the similar situation in Hawaii, and the continued abuse of land use regulations to stifle houses of worship over two decades after the passage of federal law specifically intended to prevent such weaponization. That law remains widely ignored, and there's nothing to prevent officials from misusing regulations against other people, businesses, and organizations they dislike—especially since it's difficult to know what motivates bureaucrats already inclined to control-freakery. All sorts of animus can hide behind bland adherence to red tape.

Litigation and reforms of the sort sought by I.J.'s Zoning Justice Project can bypass the challenge inherent in delving into the motivations behind the enforcement of intrusive regulations by defanging the rules themselves. Everybody wins when people are free to exercise their liberty without seeking permission.