The Zoning Theory of Everything: Abortion Edition
Every political issue ultimately becomes a zoning issue.
Happy Tuesday, and welcome to another edition of Rent Free.
This week's newsletter takes a look at how even the successful passage of robust, state-level zoning reforms is merely a prelude to equally intense fights about implementation of those reforms.
In California, Democratic Gov. Gavin Newsom signed into law a major bill that allows apartment buildings near major transit stops. This has been a major goal of the state's housing reformers. Yet the new law is a complex animal with lots of staggered implementation dates and local flexibility built in. It'll be years before we have a real fix on how well it's working.
Rent Free Newsletter by Christian Britschgi. Get more of Christian's urban regulation, development, and zoning coverage.
Meanwhile, Texas, a new entrant in the field of state-level zoning reform, is also learning that the task of preempting local zoning rules is easier said than done. Earlier this year, the state Legislature passed a law allowing new apartments in nonresidential zones. Now, a growing list of cities there are attempting to undermine that reform by requiring that state-legal apartments come with expensive public art installations and Olympic-sized swimming pools.
But first, we have our lead item on how all issues are ultimately zoning issues, as evidenced by conservative communities in pro-choice Virginia using land-use regulations to implement de facto bans on abortion clinics.
Zoning Theory of Everything: Abortion Edition
In Virginia, localities have no authority to regulate abortion. But they do have pretty wide authority over zoning and land-use decisions.
Conservative cities and counties that don't like the state's permissive abortion policy are now using their land-use powers to effectively ban the practice within their borders.
As state news outlet Cardinal News reports in an in-depth story published Monday, the Lynchburg City Council will consider today a slew of new zoning restrictions on abortion clinics that would seem to amount to a de facto ban.
The zoning changes before the Council would ban abortion clinics in four of the six zoning districts where they're currently allowed, and require that clinics get special conditional use permits (which require individual City Council approval) in the two districts where they'd still be allowed.
Additionally, the proposed changes would forbid abortion clinics from operating within 1,000 feet of residential areas, houses of worship, schools, and public parks.
Lynchburg Councilmember Marty Misjuns told Cardinal News that the goal of the restrictions is not to impose a de facto ban, which he concedes would pose legal problems for the city. He did say he'd had to make sure there were parcels in town that would still be able to host abortion clinics.
The complexity of Lynchburg's zoning code makes it easier for it to pass a de facto abortion ban without stepping on the toes of the state's sole authority to regulate the practice.
The city of 80,000 people has 14 zoning districts and an established discretionary process for granting conditional use permits.
Under this zoning regime, the City Council can straightforwardly exclude abortion clinics from most of the city and make it impractical to open them in areas where they're technically still allowed, all without actually banning them.
These kinds of de facto bans would be much harder to pull off if Lynchburg had a simple zoning code where all businesses were allowed by right on commercially zoned land. A zoning change excluding them from commercial areas would be a much more transparent ban. Requiring that they get special permits when that's not required of other businesses would be much more obviously discriminatory.
My purpose in raising the Lynchburg example isn't to defend abortion clinics, but rather to point out how complex zoning codes—allegedly created to more rationally manage the impacts of development—are a recipe for arbitrary regulations that have nothing to do with the local impact of particular land uses.
Neither supporters nor opponents of abortion would argue that abortion clinics themselves produce neighborhood effects that are more severe than, say, a dentist's office. But since modern land-use regulations give so much stopping power to local officials, that's what's being used to stop abortion clinics.
Lynchburg's proposed regulations are notable only in that their legality is questionable given the status of abortion in Virginia law. But any number of other far more benign, noncontroversial land uses are subject to the same arbitrary restrictions while lacking many of the same legal protections.
In California, Newsom Signs Apartments-Near-Transit Bill Into Law
On Friday, Newsom signed into law Senate Bill (S.B.) 79, which, very broadly speaking, preempts local zoning codes to allow apartments near major transit stations and gives transit agencies the power to develop housing on their own land.
Supporters argue that enabling more apartments near transit focuses housing development where there's the infrastructure to support it and makes more productive use of the state's transit spending.
"For too long, California has poured billions into transit without building the housing density needed for those systems to reach their potential," said Newsom in a signing statement. "S.B. 79 helps change that by focusing more homes near rail stations."
As I noted when the bill passed the Legislature last month, enacting a state-level "transit-oriented development" bill has been a longtime priority of California's YIMBYs. Similar unsuccessful bills were considered in the Legislature in 2018, 2019, and 2020.
Even this year, S.B. 79's passage was a close-run thing. It was approved by the Legislature on the last day of its 2025 session and only after the bill went through over a dozen rounds of amendments to assuage the concerns of labor unions, tenant activists, and local control partisans.
Those amendments have made the new law a complex animal indeed.
While the law broadly legalizes apartments near transit stops, how many units can be built where depends on a long range of factors, including the type of transit stop a project is being built next to, how close to the transit stop that project is, whether the project site has had occupied rent-controlled housing on it in recent years, whether the site is in a very-high-fire-risk zone, and more.
The law has staggered implementation dates, too, meaning the law won't be in full effect everywhere until 2030.
Localities are also given flexibility in implementing the law. They are allowed to cap project sizes below what S.B. 79 says they have to allow, provided they allow more units to be built elsewhere.
Newsom's signing statement stresses this feature of the law. Contra the law's critics, he says that S.B. 79 still gives cities substantial local control to decide where new housing goes.
Over on Substack, Nolan Gray and Aaron Eckhouse have a comprehensive, plain-English rundown of what S.B. 79 will do that is worth reading if one wants to get really into the weeds on what exactly the law does.
A glass-half-empty perspective might be that all this added complexity will undercut the units yielded by the law.
A glass-half-full assessment would be that S.B. 79's complexities are a result of political compromises that were needed to finally get an apartments-near-transit bill over the finish line. And a California with S.B. 79 is going to build more housing than a California without it.
In Texas, More Luxury Housing Mandates To Undercut State Zoning Reforms
Earlier this year, the Texas Legislature passed S.B. 840, a good, clean, simple reform that requires larger cities in larger counties to allow apartment buildings by right on properties zoned for commercial, office, mixed-use, and warehouse uses.
Many of the cities affected by the law are making a good faith effort to implement it and inform developers of the new opportunities available to them.
A few are attempting to undermine the law by imposing a long list of what can only be described as "luxury housing" mandates for S.B. 840 projects.
The latest to do this is Grand Prairie, Texas, sandwiched between Dallas and Fort Worth. Today, the city's Planning and Zoning Commission will consider amendments to its unified development code that would require S.B. 840 projects to come with a long list of cost-increasing amenities and architectural features.
The proposed amendments would mandate new S.B. 840 apartments with an outdoor Olympic-sized swimming pool, pedestrian trails, and masonry walls of between eight and 10 feet tall.
Additionally, the proposed ordinance would require that 60 percent of units in S.B. 840 projects be three-bedroom apartments. Any one-bedroom apartments would have to be a minimum of 1,000 square feet.
New S.B. 840 buildings would also need to feature a public art installation that costs at least $4 per square foot of all the new housing units.
The city staff report on the ordinance says that its intent is to "encourage the continuation of high-quality growth in the City with design standards that will help preserve or improve the characteristics of surrounding developments."
OK. A consequence of these rules would be to raise the development costs of S.B. 840 projects. Inevitably, a lot of projects that would be allowed by the state law will be rendered infeasible by the city's proposed requirements.
Housing advocacy groups that supported the passage of S.B. 840 have already threatened litigation against other cities' new luxury amenity requirements.
"In order for local regulation to pass constitutional muster, it must at a minimum be rationally related to a legitimate government interest," Ari Bargil, an attorney with the Institute for Justice, a public interest law firm, told Reason last month. "There is no legitimate government interest that is furthered by silly and hyper-expensive requirements like swimming pools and yoga rooms."
Quick Links
- The Trump administration is using the government shutdown, now in its second week, to lay off employees at the Department of Housing and Urban Development (HUD). Bloomberg reports that over 300 employees spread across HUD's fair housing, public housing, and community planning and development offices have been let go.
- Washington fire officials are pushing for changes to the state's building code that would require wider pathways on properties that sport accessory dwelling units (ADUs). Per The Urbanist, housing advocates worry the requirements will stymie the construction of new granny flats and in-law suites.
- Over at City Journal, the Manhattan Institute's John Ketcham leans on his own experience installing gas stoves to argue that a new regulation passed by the New York City Council requiring such appliances to be installed by a licensed plumber is needless and expensive.
- Colorado Democratic Gov. Jared Polis' administration releases a new dashboard to track localities' compliance with new state housing laws that require them to allow ADUs and housing near transit, or risk the loss of state funds.
- Horse ranchers in Santa Clara County, California, are worried that proposed zoning changes that would exclude horses from the definition of livestock would effectively zone them out of business.
