Biden’s Infrastructure Bill Aims to End Single-Family Zoning

Published April 7, 2021

National Review Online

With the introduction of his massive, $2.3 trillion “infrastructure” bill, President Biden’s campaign to end suburban single-family zoning has begun. If you think this issue was debated and resolved during the 2020 presidential campaign, you are mistaken. It’s true that Biden’s campaign platform openly and unmistakably pledged to abolish single-family zoning. As soon as President Trump made an issue of that pledge, however, Biden went virtually silent on the issue and the Democrat-supporting press falsely denied that Biden had any designs on single-family zoning at all. Now that he’s president, Biden’s infrastructure bill openly includes programs designed to “eliminate” single-family zoning (which Biden calls “exclusionary zoning”).

How, exactly, does Biden plan to end single-family zoning? According to the fact sheet released by the White House, “Biden is calling on Congress to enact an innovative new competitive grant program that awards flexible and attractive funding to jurisdictions that take concrete steps to eliminate [‘exclusionary zoning’].” In other words, Biden wants to use a big pot of federal grant money as bait. If a county or municipality agrees to weaken or eliminate its single-family zoning, it gets the federal bucks.

The wildly overreaching Obama-Biden era Affirmatively Furthering Fair Housing (AFFH) regulation — which Biden has pledged to revive — works in a similar fashion. The difference is that by adding another gigantic pot of federal money to the Community Development Block Grants that are the lure of AFFH, Biden makes it that much harder for suburbs to resist applying — and that much more punishing to jurisdictions that forgo a share of the federal taxes they’ve already paid so as to protect their right to self-rule.

Are federal carrots enough, however? Prosperous suburbs may forgo the grants in an effort to secure their independence. The success of Biden’s initiative depends in part on exactly how much money gets allocated to grants tied to zoning reform. The details of that ask haven’t yet been released, but the $213 billion allocated to Biden’s total affordable housing initiative leave room for an awfully big pot for the anti-zoning portion.

If there aren’t enough carrots, however, how about sticks? During the campaign, Biden backed a draconian plan to withhold federal transportation grants for road repair from suburbs that refuse to kill off single-family zoning. That hasn’t been proposed by Biden, and the reason is fairly obvious. Democrats don’t yet have the votes to pass such a law. The only way they can get around the filibuster is to squeak spending bills through Congress under the rules on “reconciliation.” So, for now, it’s carrots all the way down. If Senate Dems expand their majority and kill the filibuster in 2022, however, out come the sticks and down goes suburban zoning.

There’s more danger in store for America’s suburbs in Biden’s current proposal than meets the eye, however. If I were administering Biden’s various federal housing programs, I would sucker well-off suburbs into accepting grants on lenient terms. The trick is that once a jurisdiction accepts a HUD grant, it has to sign a statement promising to “affirmatively further fair housing.” Now that Biden is going to revive the old Obama-Biden AFFH rule, that pledge can be used by activist non-profits or the administration itself to sue localities for failing to meet the outrageously expanded definition of that term set forth in Obama’s AFFH. It was suits like this that dragged Westchester County, New York through years of federal control and torment. Just the threat of such suits intimidated Democratic officials in Dubuque, Iowa into surrendering their city’s self-rule to the Obama administration.

Here’s the bottom line: Biden’s campaign to abolish suburban single-family zoning has well and truly begun. As during the Obama era, it will likely escalate in intensity with each passing year. At this point, any jurisdiction in the country that wants to keep control of its zoning and development should decline to apply for federal housing grants. No matter how good the money looks, sign that promise to “affirmatively further fair housing” — as the Biden administration will define it — and you are signing away your birthright.

There’s a pattern here. Biden and the Democrats are working overtime to undermine the federalist system in which zoning and education are local concerns. In each case — housing and education — the plan is the same: use federal grants to hook states and localities into conditions that will effectively override their authority. Kill suburban zoning and force leftist action civics and critical race theory on red-state schools. Siphon off taxes and return the money to taxpayers with conditions that effectively gut the foundational layer of our federalist system — the layer closest to the people.

If Republicans have the good sense to make an issue of Biden’s attack on single-family zoning, it will split the Democrats down the middle. The media will keep trying to cover for Biden. But once the administration begins enforcing AFFH, the reality of his policies will emerge. College-educated suburban Democrats won’t like that. Republicans are split on this issue as well, however, although the split is more politicians from the base than a split within the base. Under Obama, House Republicans overwhelmingly voted to defund AFFH, but Senate Republicans divided. This time, the GOP ought to get smart and expose Biden’s “infrastructure” bill as the anti-suburban zoning bill it in fact is. That would change the “infrastructure” narrative from a Christmas tree studded with goodies to a hammer to smash your way of life.

Naturally, this will all be called code for racial discrimination, but Democrats now lay that charge on pretty much every measure favored by Republicans. Curiously, earlier this week, the New York Times featured a story on opposition to an affordable housing initiative that would rezone New York City’s SoHo neighborhood. Residents worry that the rezoning proposal will bring more massive high-rises, tourists, and traffic into a neighborhood famous for low-rise, nineteenth-century architecture and narrow cobblestone streets. Many say the rezoning proposal is more about pleasing developers than affordable housing. It’s unlikely that many, or any, of these residents voted for Donald Trump in 2020. And the Times story prominently features an opponent of the rezoning initiative who is black. Nor is that an outlier case.

Last summer, when California floated a measure to kill single-family zoning, there was powerful opposition from residents who objected to a law that would make their neighborhoods denser, noisier, and more filled with traffic. Predominantly minority residents in South Los Angeles saw the bill as an “affront to how hard Black Americans fought to join single-family neighborhoods, battling redlining, racist covenants and even targeted violence. And they worried that suddenly relaxing zoning rules would not only ruin the low density they enjoyed, but also unleash an investment flood that would accelerate displacement of the Black community as developers scooped up old homes and built new ones unaffordable to most in the community.”

The zoning issue is tough and complex. It balances principled libertarian objections to zoning and the interests of developers, on the one hand, against core principles of federalism and local control, on the other. Massive spending and taxation are fundamental to the federal effort to override local zoning laws. Neighborhood preservation vies with “creative destruction.” There are plenty of complex, conflicting, and legitimate considerations in the balance. But reducing the zoning issue to bogus charges of “racism” is the way Democrats play the game nowadays.

If Republicans find the courage to stand up to the usual nonsense and oppose this big-government attempt to kill off the federalist system itself, they will find not only the vast majority of Republicans, but a great many independents and Democrats in their corner.

Stanley Kurtz is a senior fellow at the Ethics and Public Policy Center.

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