Legalize It

The apartment has been banned in far too many places, deepening racial divides and driving up rents. Oregon is set to be the first state to fix that—and it won’t be the last.

Orange and red balconies on a modern concrete high-rise building.

Oregon moved on Sunday to legalize something that has been all but banned in most American communities for nearly a century: the apartment.

The Oregon Senate sent House Bill 2001 to Gov. Kate Brown’s desk on Sunday by a 17–9 vote, the latest and largest victory for a national movement to increase density in communities that have severely restricted what can be built—and as a result, who may live there. In Portland, Oregon’s largest city, 77 percent of residential land is set aside exclusively for single-family homes. In the suburbs, the share is higher.

What was once the bedrock social structure of the American city is shifting fast. Minneapolis voted to eliminate single-family home zoning last fall, citing the policy’s racial, environmental, and economic impact. California, which like Oregon has already legalized accessory dwelling units statewide (such as an apartment in a garage), has debated a state override of local zoning rules to permit apartments near transit lines and in job-rich areas. Other West Coast cities like Seattle and San Diego are also reexamining the wisdom of laws that restrict central neighborhoods to one-family houses. In some cities, the new buildings that result from such changes may not even look different than their neighbors, mammoth Victorians that date from an era of servants and huge families—they’ll just have more mailboxes out front.

Legalizing apartments is not a panacea. But it is a precursor to other solutions. If there are no apartments, there are no homeless shelters, no student housing, no senior housing, and no Section 8. That’s why California’s zoning override bill, the More HOMES Act, was endorsed by Habitat for Humanity and the Non-Profit Housing Association of Northern California, a coalition of 750 affordable-housing groups. More apartments would allow people to live closer to jobs, schools, and amenities, making transit more viable and reducing commute distances, which is good for the environment. Shorter, more-reliable commutes are also associated with greater economic mobility.

Most importantly, by upzoning entire cities and states at a time, these efforts could help make sure that it isn’t only low-income neighborhoods of color—the places vulnerable to gentrification and displacement—that become hot spots for development in cities that need more housing. Whiter, richer neighborhoods that have aggressively opposed any attempts to build more housing will finally have to bear their share of the supply.

Democratic presidential candidates have turned their eye toward reforming local land use from the top. New Jersey Sen. Cory Booker and former HUD Secretary Julian Castro have proposed tying local zoning reform to transportation funding. No progress toward allowing more housing units? No more funding for your roads.

Even the president last week signed an executive order establishing a White House Council on Eliminating Regulatory Barriers to Affordable Housing. But don’t hold your breath waiting for Trump to override suburban zoning. HUD Secretary Ben Carson once called the Obama administration’s efforts on the subject “social engineering” and has so far worked to reverse that progress. The makeup of the regulatory-barriers council suggests the administration is more interested in undoing workplace and environmental protections than usurping political power from suburbs.

For now, though, apartment legalization at the state level is chugging along.

Oregon’s House Bill 2001 will permit duplexes on all residential land in cities with more than 10,000 residents. In cities with more than 25,000 residents, the bill also legalizes triplexes, fourplexes, row houses, and cottage clusters. Those building types—sometimes referred to as the “missing middle” between tract homes and towers, the phrase being a once-popular American vernacular that has been legislated out of existence—will also be legal throughout the Portland metro area. Cities will have 16 months to revise their codes accordingly or else be governed by state law.

Tina Kotek, the bill’s author and the speaker of Oregon’s house, has framed the legislation as a breakthrough for affordability and housing choice. At Sightline, Michael Andersen runs down the diverse coalition of interests lined up behind the law, underscoring how many different constituencies have come around to the need for zoning reform:

AARP of Oregon, which said middle housing makes it easier to age in place; The Street Trust, a transportation group that argued HB 2001 would let more people live near good transit and walkable neighborhoods; 1000 Friends of Oregon, which said the law would advance the state’s long fight against exclusionary zoning; Pablo Alvarez of Lane County NAACP, who said the bill would start to undo some of the ways racism has undermined housing affordability for all; Sunrise PDX, which called energy-efficient housing an essential way to fight climate change; and Portland Public Schools, which described the bill as a long-term way to reduce school segregation.

In most places, advocates for more housing often point out that zoning was employed to preserve the whiteness of America’s all-white neighborhoods—and that it has performed that service. Still, the possibility of zoning overrides has rattled communities of color, which see restrictive zoning laws as a barrier to gentrification. It sometimes functions that way. High-profile upzonings in neighborhoods like D.C.’s Shaw and Brooklyn’s Williamsburg have been accompanied by race- and income-based displacement. Higher land values created by upzoning may encourage teardowns, and new buildings may bring amenities, such as a Whole Foods, that drive up the neighborhood’s perceived value to outsiders.

The apparent concentration of fancy new buildings in low-income neighborhoods and communities of color is not an illusion. Researchers at New York University tracked the impact of upzonings during the Bloomberg administration in New York City, a period of rapid transformation. Here’s what they found: “Upzoned lots and unchanged lots were more likely than downzoned lots to be located in tracts that were less than 20 percent white. Conversely, downzoned lots were much more likely than upzoned lots or unchanged lots to be located in tracts that were more than 80 percent white. Downzoned lots were also more likely than upzoned lots to be located in tracts with very low shares of black or Hispanic residents.” Studying the shrinking building envelope in Los Angeles, the planner Greg Morrow found “radical decreases in density in predominately white, affluent areas” as homeowner groups outmaneuvered civil rights organizations.

In other words, that the burden of development is often borne by centrally located, formerly redlined communities of color is a product of the current system, in which social capital and political connections determine who gets to keep their neighborhood the same. Black, brown, and poor neighborhoods have emerged as the weakest links against enormous pent-up demand for housing, and planners (“a caretaker profession—reactive rather than proactive,” as the planner Thomas Campanella caustically put it) go with the flow.

“It’s almost certainly true that more development happens in lower-income or minority communities because you can’t build any new housing—and certainly not apartments—in wealthy, white communities,” says Jenny Schuetz, a housing expert at the Brookings Institute. “Whether the rezoning changes that depends on how much opposition is straightforward zoning, and how much is the process of development.” In other words, city- and statewide rezoning might reverse the status quo, if governments succeed in stripping wealthy white neighborhoods of their powerful place in the local control system. But governments need to make sure the new rules don’t replicate the power imbalance that permeates development permitting now.

Back in Portland, consultants concluded in November that the city’s plan to allow slightly bigger buildings would over the next two decades triple the number of new units constructed and lower the average rent of new units by 56 percent. Want a good price on a new apartment? Legalize it.