Federal Zoning Bill Would Preempt Local Parking Mandates

The legislation would give property owners "sole discretion" in deciding how many parking spaces they want to build.

Parking mandates can be expensive.

Local regulations requiring that new businesses and apartments come with a set number of spaces mean developers are losing floorspace that could be revenue-generating residential units and shop fronts. Cramming the required number of parking spaces onto small properties can require "structured" above- or below-ground parking lots, which can cost as much as $75,000 a space.

Many projects on smaller lots are rendered infeasible by such requirements, even if the zoning code would otherwise allow them. Often, mandated parking goes unused.

To fix this situation, housing reformers are passing a flurry of local and state policies that liberalize or abolish minimum parking requirements. A new bill in Congress would take these ideas national.

On Tuesday, Rep. Robert Garcia (D–Calif.) will introduce the Homes for People Not Cars Act of 2023. The bill would give property owners "sole discretion" to determine how many parking spaces to include in new or substantially renovated buildings that are within half a mile of a major transit stop. This liberalization would apply to residential, commercial, retail, or industrial projects, provided the buildings are "in or affecting interstate or foreign commerce."

"We're obviously in a housing crisis in California and across the country. One of the largest barriers to developing housing is parking requirements," says Garcia. His bill, he adds, will "allow the market to dictate how much parking" is needed.

Garcia was inspired by California's A.B. 2097, which passed last year. That law generally forbids cities and counties from imposing parking requirements on development near transit. Localities can require parking on an individual project basis, but only after showing the absence of mandated parking would have a "substantially negative impact" on parking needs. Small apartments and projects with 20 percent affordable units are totally exempt.

Minneapolis, Minnesota, has gone further by eliminating parking minimums citywide. Planners say the policy change is producing a boom in smaller apartment buildings, which now tend to be built with fewer parking spaces than the old code required.

A similar story has played out in Buffalo, New York, and in Seattle, Washington. Most new homes being built in both cities would have been illegal under their old, pre-reform rules.

More than 200 cities have eliminated some of their mandated parking, according to the Parking Reform Network. A couple dozen communities—including a few large cities, such as San Francisco, California, and Portland, Oregon—have completely eliminated parking minimums.

Often, cities will eliminate parking minimums while maintaining parking maximum laws, which limit how many spaces developers can build. In Tennessee, Nashville's parking reformers left the old parking standards in place but say from now on they'll be interpreted as parking maximums instead of minimums.

Garcia's bill, interestingly, looks like it would invalidate parking maximums as well. It explicitly leaves it up to the property owner's discretion to determine how many spaces they want to build.

All things considered, it's a very straightforward, clean piece of deregulation. That should make free marketers happy. On the other hand, it is proposing to preempt local laws from D.C., which raises some serious federalism concerns.

"There is a deeply rooted sense at all levels of government that zoning and land use decision making is traditionally the province of local governments and ought to be the province of local governments," says Michael Pollack, a law professor at Yeshiva University's Cardozo Law School.

Federal proposals for looser zoning restrictions have generally taken the form of financial carrots and sticks attached to federal grant programs, not outright preemption of local laws.

But while "higher level intervention into local zoning is rare," Pollack says, "it's not unheard of." The 1996 Telecommunications Act puts limits on localities' ability to deny cellphone towers. And the Religious Land Use and Institutionalized Persons Act (RLUIPA) of 2000 forbids local governments from adopting land use rules that create substantial burdens on religious exercise without furthering a compelling governmental interest.

The former law is justified as an extension of the federal government's power to regulate interstate commerce. The latter is couched in the powers the 14th Amendment gives Congress to protect constitutional rights.

"There's probably no bigger component of a person or a family's spending than housing, so when you talk about the national consumer economy, housing would be the most substantial part of that economy," says Pollack. So preempting parking minimums could arguably fall under Congress' powers to regulate interstate commerce.

Ilya Somin, a law professor at George Mason University, agrees that under current jurisprudence, Garcia's bill would likely be considered constitutional. But "under the text and original meaning of the Constitution," he adds, "this would be very problematic."

Under an originalist view of the Constitution, regulating interstate commerce largely means regulating goods and services that are actually crossing state lines. That would exclude most inherently intrastate construction activity, Somin says.

On the other hand, Somin argues, an originalist understanding of the Constitution would consider parking mandates a taking of property in violation of the Fifth Amendment's Takings Clause protections, incorporated against state and local governments by the 14th Amendment. Congress would therefore be empowered to pass legislation to protect individuals' rights from these parking mandates—similar to how RLUIPA works.

Both RLUIPA and the Telecommunications Act were passed with wide bipartisan majorities. Federal preemption of parking minimums will probably face more opposition.

Garcia insists that America's housing crisis is America's housing crisis, necessitating national action. If cities and states aren't taking necessary actions to fix the problem, he argues, it's the federal government's role to step in.