The Tyrant’s Veto

How Zoning Laws Invalidated Private Property & Local Democracy

American cities roared in the early 1920s as the engines of increasingly ubiquitous automobiles pushed the boundaries of where people could live beyond city limits. Herbert Hoover, Secretary of Commerce and an engineer by trade, watched this haphazard growth unfold with agitation. Cities were allowing “stores to crowd in at random among private dwellings, and factories and public garages to come elbowing in among neat retail stores or well-kept apartment houses.” This “stupid, wasteful jumble” was threatening the “health, safety, morals, [and] the general welfare” of Americans—and worse, the property values of homeowners. Hoover sought to impose order on this “savage” ethos of “dog eat dog,” offering a new vision for rapidly growing cities: “live and let live.”

He would tell you where you could live, and your neighbors would decide whether to let you.

From the halls of federal power, Hoover became a champion of zoning and city planning. He convened an all-star Advisory Committee on Zoning, which included Edward M. Bassett, who created New York’s first zoning law; Lawrence Veiller, a tenement “reformer” who once fantasized about burning down tenement buildings; and Frederick Law Olmsted Jr.¹, who is better remembered for creating some lovely parks than for segregating public housing.

This illustrious group produced, in 1924, the Standard State Zoning Enabling Act (SZEA)—a template that states could adopt to introduce zoning to their cities.

Zoning had spread quickly since New York City implemented the first modern regime in 1916. In 1921, when the advisory committee was formed “only 48 cities and towns, with less than 11,000,000 inhabitants, had adopted zoning ordinances.” That rose to 66 by 1922, and to 218 by the end of 1923, placing 22 million people under a zoning regime. By 1926, nineteen states had adopted the SZEA, covering 425 municipalities—half of America’s urban population. The advisory committee even published a Zoning Primer and a City Planning Primer to extol the virtues of orderly growth.

While zoning ostensibly sought to separate residential from industrial uses, the SZEA and Zoning Primer reveal another aim. Zoning was needed so that “no one can put up a large apartment house…overshadowing your home, stealing your sunshine and spoiling the investment of 20 years’ saving.” Apartment buildings were likened to “noisy, malodorous public garage[s]” and “giant airless hive[s], housing human beings like crowded bees.” Single-family homes and duplexes “were less subject to noise, litter, danger of contagion, and fire risk than multi-family houses.” Zoning was needed to protect homeowners from “unnecessary loss through intrusion of factories or apartments.”

As president, Hoover would sing the hosannas of zoning to the rafters: acknowledging a “wide distinction between homes and mere housing,” he argued that no “immortal ballads” were “written about tenements or apartments.” Songs like “Home Sweet Home” reflected “the independence, the security, and the pride in possession of the family's own home,” representing a “physical expression of individualism, of enterprise, of independence, and of the freedom of spirit.” This desire ran deep in the American character. After all, nobody would ever “sing songs about a pile of rent receipts.”

When the Supreme Court decided Village of Euclid v. Ambler Realty Co. in 1926, upholding the segregation of different types of residential uses, Justice Sutherland wrote that “very often the apartment house is a mere parasite” whose presence among single-family homes leaves the neighborhood character “utterly destroyed.” Apartments, in the court’s opinion, “come very near to being nuisances.” Of course, while the language focused on the types of buildings, a closer reading within the historical context of this era suggests that the segregation of buildings was a stand-in for the segregation of people, a theme I explored last week in “The Upward Mobility Crisis.” As Richard Rothstein describes in The Color of Law, Hoover’s efforts amounted to a “propaganda campaign directed at white middle-class families to persuade them to move out of apartments and into single-family dwellings.”

Indeed, Hoover ensured that, once those families moved out of their apartments, they would have a powerful tool to keep their new neighborhood’s character from being utterly destroyed, or changed even a little: the right to protest.

New York’s Zoning Resolution included the first such language for what would become known as the “valid petition.” If a change to a property’s zoning was proposed, 20 percent of the property owners “of any frontage proposed to be altered” could oppose the change, which could only be overcome with the unanimous vote of the city’s Board of Estimate, an eight-member body comprising the city’s most powerful officials. In other words, the property owner would have to obtain the votes of the Mayor of New York City, the Comptroller, the President of the City Council, and the five borough presidents—even if 80 percent of the neighbors supported the change.

With the author of New York’s zoning law on his advisory committee, Hoover’s State Zoning Enabling Act would further enshrine the right to protest zoning changes. The SZEA included language similar to that used in New York, but it reduced the threshold that an owner needed to defeat a valid petition to three-fourths of a municipal legislative body. While warning that inflexible zoning could become a “strait-jacket” rather than a community asset, the SZEA explained that “there must be stability for zoning ordinances if they are to be of value.” A simple majority would be required to make “ordinary routine” changes, but a “substantial proportion of property owners whose interests are affected”—a minority of neighbors—could prevent less ordinary changes entirely. Hoover considered this necessary for carrying out “reasonable neighborly agreements.”

Instead, the valid petition would come to be known as the tyrant’s veto.

The valid petition effectively enables a minority to subvert the will of the people as represented by their elected leaders, giving asymmetric power to a small group of neighbors at the expense of the property owner and the 80% who otherwise support or don’t oppose the rezoning. The 20% threshold can often be met by a single neighbor. Meanwhile, renters have no protest rights under this system. This system is profoundly undemocratic—even the bar for overturning a presidential veto is lower than what’s required to defeat a valid petition.

While many states have reformed their valid petition laws or done away with them entirely, the rule remains on the books in Texas. The valid petition was invoked last year to kill an 85-unit low-income housing development and preschool in San Antonio. Similarly in Austin, the law has enabled anti-development activists to kill dozens of multifamily apartment projects, including student and affordable housing. According to a Mercatus Center policy brief, “25 percent of rezonings to a multifamily use faced a valid petition, compared to just 5 percent for commercial use” in Austin, which leads the state in the deployment of this tactic (see the image below). As the brief’s author’s note, the threat of valid petitions has had a chilling effect on rezonings, relegating most of Austin’s multifamily development to high-traffic, high-pollution corridors or to the city’s outskirts.

Worse, in City of Austin v. Acuña, a judge ruled that the city’s comprehensive zoning rewrite was also subject to valid petition rules—and therefore invalidated. Thus, “1.4 percent of the city’s population” was able to mandate that a supermajority of city council members—9 out 11 votes—would be required to pass any citywide rezoning.

At long last, all this may be about to change.

The Texas State House of Representatives is considering House Bill 24, which would reform the valid petition law, restoring democratic representation and property rights to the zoning process. In particular, the bill would raise the threshold of neighborhood opposition to 60%, while lowering the number of council members required to defeat a valid petition to a simple majority. The law would also exempt citywide upzonings that allow more housing. It’s worth underscoring that even with these reforms, neighbors would still retain their right to protest and speak at public hearings accompanying standard rezonings. But it would remove their right to dictate the outcome.

For too long, this undemocratic law has stymied the ability of Texas cities to respond to change, allowing a super-minority of homeowners to keep their cities in the strait-jacket that Hoover cautioned against. Valid petition reform has been identified as a priority of Texas House Speaker Dustin Burrows, but the bill must still overcome resistance from legislators representing homeowners who understand that the valid petition remains a potent tool to exclude unwanted neighbors. While I was one of several dozen speakers who gave testimony in favor of the bill at a hearing last week, there’s no guarantee that HB 24 will enjoy similar levels of support as it makes its way through the rodeo of the Texas legislative process. Nevertheless, ending the tyrant’s veto and restoring balance to zoning changes is, in fact, a much better way to foster Hoover’s goal of “reasonable neighborly agreements.”

After leading America into the Great Depression and himself into electoral defeat, Herbert Hoover retired to post-presidential life. For someone who extolled the virtues of home ownership over “mere housing,” it may be surprising that Hoover did not return to his humble Quaker homestead in Iowa. Instead, he eventually took up residence in a penthouse at the Waldorf Astoria Hotel in Manhattan—which he rented for the last twenty years of his life. As it turned out, apartment living wasn’t so bad. Fellow resident Cole Porter even wrote a song about it—an immortal ballad, you might say, though technically about the Waldorf’s salad.

1. Not to be confused with his father, Frederick Law Olmsted Sr., designer of Central Park.