All Zoning Is Exclusionary

How Much Exclusion Should We Accept?

While in business school, I spent a summer interning in Tokyo, living in a small but efficient apartment nestled among the sleek high-rises of the Roppongi district. A 20-minute walk away, some friends lived in a low-rise, mixed-use neighborhood in a four-bedroom house. In Japan, zoning is designed to permit flexibility rather than restrict it, allowing homes, shops, schools, and services to comfortably coexist in the same neighborhood. This permissive system has helped Tokyo absorb nearly 2 million new residents over the past twenty-five years while keeping housing broadly affordable for 14 million people.

In the United States, we argue about who should control zoning—cities, states, next-door neighbors. But what if the real problem isn't who controls zoning but zoning itself?

Addison Del Mastro

recently offered a thoughtful commentary¹ on zoning and “subsidiarity,” which holds that problems should be handled at the most local level capable of solving them. In zoning, this manifests as a debate over local versus state control, asking whether states should have the authority to preempt local zoning powers. As Addison rightly notes, zoning power is delegated by the states to localities, so they are within their rights to “de-devolve” it, especially when local law has been captured by neighborhood NIMBYism. He suggests that zoning should perhaps move up the power hierarchy.

I agree with much of that—but I offered a counterpoint:

Zoning should be devolved to the lowest level of all—to the individual property owner. In other words, there's no proper level of government at which zoning belongs.

The question isn’t who should control zoning—but whether zoning should exist at all.

At its root, zoning is about separating certain “incompatible” uses from each other. Zoning was originally justified as a means of protecting people from harmful uses, but almost immediately it was used as a tool for protecting favored neighborhoods from unwelcome people. While explicitly racist zoning was ruled unconstitutional by the Supreme Court, cities used zoning tools that banned apartments and small lots to effectively exclude those deemed “undesirable”—as recommended by Herbert Hoover's model zoning enabling act.

This has always been the point: zoning is inherently exclusionary.

Cities began to adopt relatively simple zoning codes beginning a century ago. For example, Austin’s original 1931 code had only five zones, moving in exclusivity from a single-family zone to an apartment-friendly zone to an “unrestricted” zone. New York’s 1916 zoning code only had three: residential, business, and unrestricted districts. Over time, cities have made their zoning codes extremely complex, layering on overlays, historic districts, conditional permits, density bonuses, and microzones. As a result, today’s land use maps are not orderly zones—they are chaotic patchworks of exceptions.

Here’s an example. As a member of Austin’s Zoning & Platting Commission, I saw a case where a restaurant owner was nearly forced to shut down because the underlying zoning banned liquor sales—even though the previous tenant had a license and nearby properties allowed it. Planning staff argued the area had “enough” liquor zoning already. We approved the rezoning, but the business still suffered months of delays, uncertainty, and considerable expense as it worked through the rezoning process.

Defenders often argue that zoning provides certainty. But if zoning were predictable, developers wouldn’t need armies of lawyers to interpret it. When the law doesn’t clearly spell out what a property owner can and cannot do, we don’t have the rule of law—we have lawlessness and subjectivity. This isn’t city planning. It’s arbitrary micromanagement.

It’s not working.

Thanks to zoning, cities have become luxury goods, provinces of exclusion that only the affluent can afford, pricing out workers from high-opportunity areas while reducing national economic output by trillions of dollars. Zoning has exported attainable housing to the exurbs, where sprawl reigns, while banishing historic housing types like small apartment buildings from urban cores. We’ve excluded the middle class from cities—and everyone else from the suburbs.

Would shifting this system to the state or national level be an improvement?

When I suggested that zoning should be devolved to the most hyperlocal of all levels—the property owner—I wasn’t being hyperbolic. Zoning is a blunt instrument for dealing with the challenges of urban planning. But before any urban planners’ heads explode, let’s be clear: eliminating zoning does not eliminate building codes, fire safety standards, environmental protections, nor the need for infrastructure planning.

The strongest argument for zoning, in my view, is the original if ostensible intent to preclude something like a pollution-emitting factory from setting up shop next to homes, schools, and parks. It hasn’t always worked this way. Austin, for instance, segregated Black residents into an East Side “Negro District,” then designated the adjacent area for heavy industry—exclusionary zoning was the tool that exposed generations of East Siders to toxins.

New York’s first zoning code banned forty-four noxious uses like ammonia manufacturing, fat rendering, and dead animal incineration from residential and commercial districts—and kept immigrant garment workers off fashionable Fifth Avenue. The law may have seemed comprehensive, but it could not anticipate future technologies like plastics or the spread of craft brewing: the code banned brewing and distilling—making much of today’s hipster Brooklyn illegal.

Banning specific uses locked cities into yesterday’s fears and phobias, rather than equipping them for tomorrow’s needs and possibilities.

A better approach is to regulate effects, not uses. Nuisance-based codes—measuring impacts like noise and pollution—are far more flexible and future-proof. Objective standards can set thresholds for noise, particulate matter, toxins, vibrations, runoff, odor, light pollution, and other real harms. If a use exceeds those thresholds, the harm must be mitigated or the use restricted—temporally or spatially—near sensitive areas. Nuisance-based codes would substantially reduce the time, cost, and uncertainty associated with zoning while still affording protections through clear standards and enforceable limits on actual harms.

The thing is, cities already do this.

Building, fire, environmental, and health codes rely on published standards—like the International Building Code or EPA guidelines—that are regularly updated as technologies change or new risks emerge. This system of evolving codes is flexible, scalable, and based on real-world impacts. If a proposed use is novel or complex, cities can require performance-based review tools like drainage studies or traffic impact analyses so that they don’t have to guess impacts. Cities like Austin impose street impact, parkland dedication, and water/wastewater hookup fees to pay for the infrastructure costs of new development. If cities are already well-equipped to protect people through other means, what is zoning actually protecting?

The reality is that modern zoning codes are not meant to protect people from smokestacks; they’re a smokescreen for “protecting” people from other people.

Still, unraveling zoning completely is an uphill battle. With any reform to a deeply-ingrained system, it’s important to be thoughtful about implementation—and for that reason I don’t think outright zoning abolition is the immediate policy goal, nor a practical one. There are alternatives.

Houston already operates without conventional zoning. Though it has other tools for shaping development—including deed restrictions, minimum lot sizes, and parking mandates—the city has grown quickly while keeping the cost of housing relatively low. Urbanists may critique Houston’s form, but its flaws stem from poor planning—not from a lack of zoning.

As we saw earlier, Japan offers another alternative. Its national zoning code includes twelve use-based zones that regulate building intensity while still allowing a wide range of uses. Each successive zone permits everything allowed in the one below, enabling flexible, mixed-use development without endless veto points or bureaucratic micromanagement. This “inclusive zoning,” as

J.K. Lund

calls it, stands in stark contrast to the typical American approach. While a national zoning regime may be politically unrealistic in the United States, any city could adopt a code this simple and effective.

Japan’s simple 12-step program (Source)

Andrew Burleson

proposes incremental zoning, allowing the “next increment” of development by right—such as duplexes on lots previously zoned for single-family homes. This is a sensible approach that allows municipalities, especially those paralyzed by single-family zoning, to gradually change. It’s similar to Austin’s legalization of three homes per single-family lot, the first citywide upzoning in decades.² I’m less convinced that incrementalism is the right approach for cities like New York City and San Francisco, where acute housing shortages demand major reform.

Other advocates prefer “form-based” codes, regulating a building’s height, shape, and frontage instead of its use. Form-based zoning emerged from the New Urbanist movement and has been implemented in cities like Seaside (FL), Miami, and Buffalo. Form-based codes have enabled greater density and walkability in communities, although the one-size-fits-all aesthetic is a bit too prescriptive for my tastes.

Each of these approaches improves on the status quo. “Inclusionary” zoning, by contrast, does not. This approach requires a percentage of units in residential buildings to be permanently income-restricted—market-rate tenants have to subsidize below-market units—often making would-be projects unbuildable. That provides homes for no one, what

Logan

Bryck calls a “tax” on city living. Inclusionary zoning requires an exclusionary framework.

That gets to the root of it: even if some of these models are major improvements over the status quo, all perpetuate some form of exclusion. Ultimately, I think, that means excluding people. That’s the moral premise at the root of all exclusionary zoning regimes.

I reject that premise outright. Still, I embrace incremental reform as a politically and practically necessary path toward a more ambitious and morally just end: inclusive cities governed by clear rules. We are nowhere close to that today.

Undoubtedly, municipalities have an obligation to protect the rights and well-being of their citizens, but our current zoning regimes fail at the task. Instead, they are systems of exclusion that enforce stasis and scarcity, while rarely protecting people from real harms. We have building codes, environmental laws, and nuisance standards that can—and in many cases already do—address these issues with more precision, flexibility, and certainty. Ultimately, the choice isn’t between zoning and chaos—it’s between exclusion and abundance, between arbitrary preferences and objective law. Cities don’t need zoning to maintain order. They need good governance—rules that protect people, not preferences.

All zoning is exclusionary. But our cities don’t have to be.

What do you think?

1. See his follow-up essay here.

2. Austin has undertaken a number of other reforms, too—check out the rest of my writing!