I strongly support the Simplifying Codes for Affordable Development (SCAD) text amendments to Durham’s zoning code. I helped initiate SCAD and think its small-scale changes to the zoning code will help lead to more small-lot housing, more neighborhood-scale retail, more mixed-use projects, more renters who can become owners, and more Missing Middle Housing. It will also help Durham become a more walkable, less automobile dependent, friendlier, and more interesting place to live.
This is the third time in the past 25 years that I sponsored or cosponsored code amendments. Four years ago, I was part of the team of small-scale development practitioners who helped bring the successful Expanded Housing Choices (EHC) amendments. The small lot reforms we initiated in 2019 bent the curve. Despite being the tightest market in the Triangle, the Bull City has 28 new homes under $400,000 currently for sale on the market. Raleigh has one. Chapel Hill has zero. These reforms, led by Mayor Steve Schewel, have resurrected starter-home markets that are otherwise non-existent in the Triangle’s three cities.
In 1998, Duke University asked me to build a new neighborhood on eight vacant acres they owned behind East Campus. As a new urbanist, I wanted to build a neighborhood that maintained the architectural character of its setting, but that turned out to be illegal. I had to introduce 12 code amendments to be able to build on smaller lots, to retain and build the platted alleys, to build single-family houses close to the street, to build townhouses that didn’t try to look like individual houses glued together, and even to plant street trees in the street tree planter strip between the curb and the sidewalk. Then, with these 12 amendments, we were told that our plan was still illegal: It was 20 percent denser than the rules allowed.
Fortunately, our planning director, possibly with a wink and a nod, declared that if the existing streets were called “buffer areas,” he would rule that we were a “suburban cluster subdivision” and qualified for a 20 percent density bonus. From that experience, I learned what a ridiculous obstacle course awaited anyone trying to do something that didn’t align with the rulebook.
When I came to Durham as a college student in 1965, Durham’s zoning code was 23 pages long. Compact walkable development wasn’t outlawed. In fact, the Durham code permitted “70 families per acre” in Trinity Park. (As a result, Trinity Park still has much-admired and sought-after multi-family apartment buildings “grandfathered in” on nearly every block.)
Then, the world changed.
On April 4, 1968, Dr. Martin Luther King, Jr. was assassinated.
On April 11, 1968, Congress passed the Fair Housing Act. It outlawed discrimination based on race, religion, and national origin in the sale, rental, and financing of housing. It appeared that America’s tradition of outright housing discrimination was no longer legal.
But communities quickly found a workaround, not only in the South but nationwide: Racial segregation could be maintained implicitly, if not explicitly. All a city had to do was down-zone. Aggressive down-zoning took place across America and across Durham, especially in affluent neighborhoods. The base zoning for the heart of Trinity Park was changed from 70 units per acre to eight.
For more information, please read Richard Rothstein’s groundbreaking book The Color of Law, which details how municipalities across America intentionally preserved racial segregation through their zoning codes. Or consult M. Nolan Gray’s book Arbitrary Lines: How Zoning Broke the American City and How to Fix It, which provides more specifics and offers solutions.
Within 11 months of the enactment of the Fair Housing Act, the size of Durham’s zoning code increased by 1,300 percent, successfully codifying economic discrimination as an effective substitute for racial discrimination. The creation of new affordable housing was effectively outlawed in all of Durham’s more affluent neighborhoods.
Today, Durham’s land-use regulations fill more than 2,300 dense pages. It’s become a corpulent Stay-Puft Marshmallow Man that gobbles up regulatory frontiers as fast as it can think them up.
It also hindered the Black community’s ability to rebuild itself.
The Fair Housing Act accompanied federal Model Cities and Urban Renewal programs that destroyed large swaths of Durham’s Hayti neighborhood as well as the beating heart of the Black community—the Pettigrew Street commercial district. The damage was irreparable. It remains so even today.
The worst parts of this urbicide were embedded in the zoning code. Today’s code fundamentally reflects the same set of values as the racist code that was implemented in 1969. It is built on the hallmarks of modern planning discrimination, including density maximums, parking mandates, and highly complex permitting regulations with unpredictable and arbitrary outcomes that are so expensive to negotiate that large national developers with deep pockets have a huge advantage over usually smaller local practitioners.
The good news is that Durham has been moving in the right direction. Four years ago, City Council directed our planning department to invite a group of smaller-scale local developers to discuss with them what was preventing the construction of more affordable housing. I was a member of this practitioners’ panel. It collaboratively worked with the city to produce the zoning code amendments included in Expanding Housing Choices (EHC), which reduced minimum lot sizes and eliminated single-family zoning in central Durham.
Zoning has a long history of discrimination that continues today. Lisa Prevost’s book Snob Zones: Fear, Prejudice, and Real Estate documents how suburban communities use zoning to exclude poor people, minorities, the young, and middle-class families. Zoning allows “not-in-my-backyard” NIMBYs to require that government planning departments enforce NIMBY prejudices. This is not a coincidence. Preventing affordable housing has long been a primary purpose of zoning.
The people lobbying to prevent zoning reform today also seek to prevent affordable housing, particularly near them. It’s not new. NIMBY groups will probably always exist, but they are on the wrong side of history. For example, earlier this year, Congress enacted and President Biden signed ten specific “yes-in-my-backyard” (YIMBY) provisions with funding for municipalities that remove barriers to affordable housing from their zoning codes. Last week, the Washington State House of Representatives passed a bill that would eliminate single-family zoning and legalize duplexes and four-plexes in virtually every city statewide. The question is: How does Durham deal with the anti-affordable housing provisions embedded in our own codes?
Zoning reform is perpetually necessary because codes are so incredibly complex, and practitioners are constantly learning new things. Frontline feedback should be processed into better codes and, ultimately, a better quality of life for all.
Durham is in a unique position to lead here. The small lot reforms in 2019 may have bent the curve, but there is always more to do. There are ways to make these small-lot homes better. Market feedback is showing that the zoning code requires driveways to be too large and thus undesirable. Gutter requirements leave builders unable to deal with downspouts in reasonable ways. Parking mandates turn what could have been nice courtyards into unneeded (and unwanted) parking lots. All are easily fixable through simple reforms.
SCAD reforms invest in the vision of a better city. The Japanese call it Kaizen—perpetual improvement. There is no perfect. There is no end. There is just constant learning and betterment. The post-1969 code was so bad, it might take 60-plus years to steam clean it. EHC was a start, SCAD is another step, and our planning director Sara Young’s Unified Development Ordinance (UDO) rewrite over the next few years should improve it further still. It will never be done. Cities never are. But the work must continue, and reform is inherent to that mission. Zoning exists to discriminate, and Durham does not. That’s why reform is necessary.
Bob Chapman lives in Durham and is involved in community projects including developing affordable housing and walkable neighborhoods.
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