Accepting opposition

We’ll never convince everyone. Thankfully we don’t have to.

A snapshot of reality

In a political debate, one of the more effective tactics is to find common ground with your opposition. “We want the same thing, we just disagree about how to get there.” And in many cases that mindset is constructive and helpful. Negotiating about how to achieve our mutual goal helps us explore ideas, experiment, test, and learn.

The problem is, we don’t always want the same things. One of the very hardest intellectual exercises I’ve experienced is talking with people who want something totally different than I do — not just as a polarized reflex, but sincerely and thoughtfully. This is challenging for many reasons, first of which is that it can be hard to even understand why someone would want something so different than I do. It’s even harder to seek to understand, and to have humility and empathy in the conversation, when you instinctively just want to scorn them.

Taking this concretely into the urbanist space: many of us are prone to imagine something like, “if only everyone could spend a summer abroad in Amsterdam, they’d get it.” And it’s true that most people have a hard time imagining what life might be like in a very different built environment, and that if they experienced it, many of them would “get” it. Many, but not all.

As we pursue progress in a democracy we have to work with people who want things we don’t want. If our proposals require us to overcome what other people want, to force them to accept our preferences instead of their preferences, we have a much, much harder road ahead of us, especially when they have the status quo on their side.

The good news is, I think there’s a fairly straightforward and workable path to compromise.

In short: the problem today is both that our cities are frozen in regulatory amber, and that a dedicated minority of people are motivated to fight intensely to prevent that from changing.

An under-explored compromise is to let them keep pockets of the city frozen in exchange for freeing the rest of it.

Deed Restrictions as a model

Earlier in this series we looked at Houston as evidence that we don’t need zoning. I discussed how Houston achieves the nuisance-control benefits of zoning without zoning by enumerating and regulating nuisances directly. This is a big lesson for other cities, but I think only the second biggest.

The most interesting thing about how Houston operates is the way they allow private subdivision regulations, called “deed restrictions,” to serve the purpose that city-wide zoning ordinances serve in most other cities, that is, to restrict the built environment and prevent change. Nevertheless, deed restrictions are less restrictive than zoning overall.

M. Nolan Gray

wrote a great explainer of three key differences:

1. Deed restrictions don’t apply to the entire city — in Houston they’re estimated to cover only 25% or so.

2. Deed restrictions are written by the people who will live under them, so there are much stronger incentives to make them reasonable.

3. Deed restrictions almost always expire. This means that many of them go away over time, and those that stay are usually renegotiated and revised by the neighborhood with each renewal — much more frequently than a typical city is able to update its blanket zoning ordinances.

The result is a dynamic and flexible city where development can respond to market pressure more effectively than in most of the country. And while prices there have increased over time, Houston remains one of the most affordable cities in the country, even as it has experienced sustained economic growth.

Exclusion Zones as a compromise

Reform-minded cities should take a simple lesson from this example. Rather than pick intense battles with anti-reform groups, find a way to let them opt-out.

The specific mechanism will differ from city to city. Houston’s deed restriction system emerged over time in an environment where the city did not adopt strong central planning to the degree that other cities did. For cities that want to work the other direction — from a more restrictive regime, to a more liberal one, opt-out probably means allowing people who are opposed to change to keep the old rules in effect. Or it could mean creating an alternative set of rules for a limited area, like many historic districts work today. Whatever the mechanism, we can refer to this approach as an “exclusion zone,” allowing one portion of the city to opt-out of change so that the rest of the city can move forward¹.

We can draw two key principles from Houston to maximize the gains of this approach:

First, make the process straightforward and deterministic, but non-trivial. There shouldn’t be a question of whether or not a sufficiently activated group of citizens will be allowed to opt out. The question should simply be whether they are willing to do the work.

In Houston the process of restricting an area involves a three-person committee drafting a set of rules and the lots they would apply to, then obtaining signatures from more than 50% of the property owners. Property owners who would be affected can opt-out and their lots will not be covered by the restrictions. Subsequently modifying the restrictions requires 75% approval of the covered property owners. I think these are pretty good baselines.

Second, make the restrictions expire over time. A good baseline is that restrictions last ten years, and then require the same work to renew that they required to create. People who are saying “no” to reform may change their minds if they see the city’s new rules are actually good.

One possible final consideration is to charge exclusion zones for the privilege. This feels prudent, since there will be administrative costs associated with these zones for the city to cover. It also feels morally justified since realistically we expect people will use an “opt out” mostly to continue excluding less affluent residents. But I think charging anything higher than a small administrative fee muddies the politics and makes compromise less likely, so it’s probably not worth it.

On the other hand, cities that move towards Land Value Tax shouldn’t have this problem. Under LVT, neighborhoods that were excluding significant housing need would naturally face an increase in their tax bill in proportion to how much they were underutilizing their land. And in places where this didn’t happen, it would indicate there was not a housing shortage, and the restrictions in that neighborhood weren’t a problem. So, in general, I think it would be better for cities not to try to price exclusion zones directly, and instead to work independently on improving the city’s tax equity.

Scaling down “NIMBY”

As advocates, it can feel difficult to stomach the idea of compromising with people whose attitudes feel morally wrong. When everyone says “not in my backyard” to housing and development, we end up with stifling exclusion and crises of housing and homelessness.

At the same time, we have to recognize that the one-size-fits-all, citywide approach to regulation is the heart of the problem and how we got into this mess in the first place. Some people care a lot about convenient parking, so every business has to provide a parking lot, then the historic downtown is decimated. Some people really care about having big front lawns, so every lot has a front setback and has to be spread apart from its neighbors, rendering townhomes and Main Street shops illegal. It doesn’t make a lot of sense to expect the system that created the problem to fix the problem if only it were wielded differently.

But what if “not in my backyard” literally only meant not in the back yard of the people who were angry enough to show up and shout at city hall? That’s not on the table when cities approach regulatory reform as city-wide all or nothing. But it could be. It’s often the case that opposition to reform is driven by a tiny number of very intensely motivated people. If we could redirect that small minority’s energy, letting them get what they want for their back yard — and only for their back yard — then we might suddenly have a lot more options for progress.

One important caveat is that this model has been highly effective in Houston in part because Houston city limits is huge, so there’s lots of other land left over even if a lot of pockets opt-out. In smaller landlocked cities (think of all the towns that collectively comprise “Boston”), I think this will be harder.

But I think the core principle still applies: consider if you can find a way to respond to the specific concerns of the opposition while shrinking the blast radius of the compromise. Not everyone is willing to make a deal, but most people are, and engaging in good faith negotiation in search of win-win solutions is a good way to turn down the temperature of any argument.

Conclusion

In this series I’ve written a set of four principles for cities to follow. Today I’ll append a fifth²:

Cities should plan roads, design streets, regulate interfaces, embrace change, and accept opposition.

Advocates should accept that there will be opposition to anything they want to do. That’s natural - there are few changes in the world that make everyone happy. Instead of being paralyzed by opposition, or believing we have to change everyone’s minds, or worst of all, focusing on how to “defeat” the opposition, we should look for ways to live and let live. Having the humility to incorporate pushback but still find a way forward will ultimately make our plans and programs better. And when we find creative ways to work with, or around, our opposition, we ultimately make reform easier and more durable.

1. I think calling this idea “exclusion zones” is also just being realistic about what it is. That being said, in actual implementation these should probably get some locally-tailored name that reads as neutral to the factions negotiating.

2. I’m pretty sure this is the last one :)