As Richard Babcock once observed about zoning, no one likes single-family zones except the people who live there. Certainly urban planners have identified the large-lot model as the enemy, to be tracked down and exterminated whenever possible. Even suburban planners, to the extent they are allowed any theory, are unhappy with the sterile inefficiencies resulting from their labors.
Although most single-family homeowners seem quite happy with their lot, both literally and figuratively, there is no question that single-family zones impose heavy burdens on their communities. They require huge investments in streets and utility infrastructure; they result in ever-increasing "vehicle miles traveled" as they push deeper into the countryside; and they drive up development costs, since most homes are occupied only a portion of the day, lying vacant and unused for the remainder. Additionally, the demands of weekends and holidays overwhelm nearby commercial and entertainment uses, unless they are islands built in an endless sea of parking lots.
It is unlikely that a satisfied homeowner in a code-restricted single-family zone can be convinced of the error of his or her ways, especially when the largest investment any homeowner makes is potentially at risk. Every land use lawyer has witnessed the political wars that erupt at the slightest hint of reconfiguring single-family zones, even many subdivisions away from the irate homeowner. It is a dedicated planner and a brave elected official who is willing to battle their own citizens for the sake of a specific development project, much less the theoretical constructs of "mixed-use," "smart growth," or "climate change."
Does that mean that no change is possible? Not at all. We know that many communities are demanding that new development meet "smart growth" standards. These standards promote an urban planning and transportation theory that concentrates growth in compact, walkable urban centers to avoid sprawl and that advocates compact, transit-oriented, pedestrian-centered, bicycle-friendly land use, including mixed-use development with a range of housing choices. Smart growth development values long-range, regional considerations of sustainability over a short-term focus. Cities now aim to achieve a unique sense of community and place; to expand the range of transportation, employment, and housing choices; to equitably distribute the costs and benefits of development; preserve and enhance natural and cultural resources; and to promote public health. In furtherance of this, even more communities are trying to revitalize their historic downtowns with mixed-use infill and three-dimensional vertical separation of uses. Finally, housing has been popping up in non-traditional places, such as industrial zones, warehouses, office parks and commercial centers.
These types and locations of mixed-use development pose neither political nor physical threats to the existing single-family zone, isolated by wide arterials and "compatible" buffers. As long as mixed-use developments stay in their place – either downtown or at the intersections of major roadways – they can be accepted as unrelated developments, whose occupants have simply chosen a different lifestyle. Yet, let them venture nearer to single-family zones and the not-in-my-neighborhood mentality of many suburbs emerges.
Is there any way to bring mixed-use concepts to the single-purpose single-family zone? The idea is a political minefield, and is extraordinarily difficult to traverse for a specific project or single site. The full wrath of a neighborhood, especially adjacent homeowners, can be aimed at preventing any breach in the single-family zoning wall, which they view as if secured by an immutable oath from the responsible public agency. Small projects, likely located in an existing neighborhood, are often besieged by this kind of concentrated public opposition. Larger projects, more likely to be located between two single-family zones or at the edge of one, simply attract more opposition.
The best approach to "mixing" uses in a single-family zone, though still difficult, is to incorporate the different uses through local ordinance or state law. Few states have led the way in encouraging mixed-use, though some, like California, have backed into it through climate change or redevelopment policies. In more cases, cities have flirted with, or even embraced, mixed-use as a panacea for blight conditions, such as crowded streets, vacant downtowns and other urban ills. Nevertheless, very few city governments have seriously taken on the problem of retrofitting the suburban residential sprawl epidemic that has blanketed the landscape over the past fifty years.
In the spirit of encouraging discussion, the following is a short list of some modest proposals for breaking the stranglehold of the existing single-family zone through advance planning and regulation.
Prohibit Single-Family Use Restrictions in Covenants, Conditions & Restrictions
Many planned communities are governed by highly restrictive covenants, conditions & restrictions ("CC&Rs") that prohibit all but single-family uses. Restricted uses include multi-family, office or small-scale commercial uses, long-term leases, home occupations and, occasionally, new construction. Even where zoning or subdivision regulations would allow mixed-use, these CC&Rs prevent any change in the original development patterns. As contracts, they are enforceable by the residents, unless contrary to state law or public policy. They are also entitled to special protection under the First and Fourteenth Amendments to the Constitution, which prohibit states and municipalities from impairing existing contracts. However, given the extensive literature on the communal costs of single-family zones, especially in the context of greenhouse gas emissions, a legislature or court could find support for holding that single-family zone, as required under applicable CC&Rs, is against public policy. A precedential determination was achieved in Shelly v. Kraemer, the most famous example of a court refusing to enforce restrictive covenants as against public policy. 334 U.S. 1 (1948). As racial segregation was finally condemned by a political majority in the middle of the twentieth century, a consensus that was ultimately reflected in court decisions, perhaps it is time to similarly reject single-family zones as demonstrably harmful to the body politic today.
California state law does not allow a homeowners association to unreasonably prevent the installation of rooftop solar panels, despite CC&Rs for the subdivision that give the association the power to prohibit all rooftop construction. See Cal.Civ.Code Section 714. Therefore, state law or local ordinance could likewise prohibit enforcement of CC&Rs that prevent use of existing properties for office, small-scale commercial or home occupations, provided that the proposed use was allowed under current zoning, did not exceed a certain percentage of square footage, and did not alter the exterior appearance of the structure.
Allow Mixed-Use Through Conditional Use Permits
Conditional use permits ("CUPs") are the generally accepted technique for pre-approving potentially incompatible uses, contingent on project-specific review by the local government. Although subject to the same political pressures as re-zonings, CUPs could be used to allow offices, small-scale commercial and multi-family projects in existing single-family zones, subject to the same conditions proposed for limitations on CC&Rs. Scale is often a particular challenge in introducing non-residential uses in a residential zone, as many small-scale commercial uses died a natural death due to prevailing economic forces. While a CUP process does not change the basic economics of retail, or the efficiencies of size, it may allow some commercial uses to survive by sharing residential neighborhoods and even structures.
Candidates for an expanded CUP process include professional offices, small markets, and preschools. Potential issues with parking and available space can be abated through limitations to [pre-packaged foods] or caps on the number of allowable employees may address some concerns. Cities with recent experience in live/work development may be especially well-positioned to implement this kind of CUP. Churches are already favored uses under RLUIPA and similar state laws, and small-scale houses of worship were a common presence in pre-World War II single-family neighborhoods.
Encourage Home Occupations
The recent recession has led to an explosion in the number individuals engaged in stay-at-home employment who faced a choice between working at home or no work at all. However, most home occupations exist under the local political radar, regulated by complaint, at which time the hapless homeowner may become lost in a maze of business licenses, inspections and HOA citations. The simplest way to encourage mixed-use in existing neighborhoods is to expand the definition of home occupations to allow customers and employees as long as the physical structure is suitable.
Planners have predicted that telecommuting will replace automobile commuting in some industries in the not-so-distant future, but there is no reason that the tele-workers must be subjected to relative isolation while working from their own homes. Many communities have stories about a Fortune 500 company that started in a garage, or the single mother who put her children through college on her grandmother’s cherished pie recipe or the successful entrepreneur who began by hosting buying parties at home. Under the existing system, these arrangements are often forced into hiding instead of allowed to flourish with the express approval of the zoning code.
Plan for Densification
“Densification” is a fighting word in every single-family zone. But the greatest physical obstacle to mixed-use in existing residential neighborhoods is the low densities that make it impossible to support even small-scale service uses within walking distance. Most suburban subdivisions could be retrofitted to accommodate higher density, even those with lots as small as 7200 square feet, and thereby decrease sprawl. California has experimented with allowing “granny flats” by right in single-family zones as a way to increase the supply of affordable housing. Though unpopular in most cities, the obstacles have not been primarily physical or economic, but rather political. To minimize obstacles, instead of requiring minimum setbacks, cities could take a page from the New Urbanist playbook and establish maximum setbacks so that new homes are not built squarely on the center of the lot, to allow some room for later development. In some particularly over-designed, or excessively complex, neighborhoods, street right-of-way is unnecessarily large, so much so that it could be used for development with a minimal redesign.
Use Parks For More Than Play
Many planned communities of the past few decades have been designed with an array of plentiful neighborhood parks, tot lots, community centers and schools, connected by extensive trails providing recreational access. There is again no reason that the trails cannot provide a path to mixing uses in the single-family neighborhood. The current fashion for food trucks suggests that there may be a place for mobile service providers, mini-markets and eateries. Traveling salesmen were a staple of Midwestern comedians for decades, but they meant that isolated residents did not have to make the long trip to the city for commonly needed supplies. Cities may consider opening parks, and their sizable parking lots, to mobile commercial or even temporary office uses. Twitter, or the next big thing in social media, can alert customers to the arrival of mixed-use in the form of a mobile van. Parks typically have large paved spaces and are located in or near residential areas, but there may be less politically loaded or more suitable locations that are equally accessible to the single-family homeowner.
Some of the above suggestions may generate political firestorms, while others may be relatively non-controversial. Regardless of the difficulty, it is time for cities and residents to start re-inventing their neighborhoods by breaking the stranglehold of the single-family zoning and reducing the suburban sprawl.