Buried in the current Social Spending bill in Congress is a controversial question considered 50 years ago in Bucks County: Can local governments control their own zoning ordinances?
Since April 2021, the Biden administration has sought to curtail single-home zoning and other local zoning powers. Back in October 1971, Bucks County’s 54 municipalities and the county’s commissioners faced the same question in a lawsuit from the Bucks County Legal Aid Society and the Milton Schapp administration.
The Legal Aid Society claimed the extensive use of single-home zoning in Bucks County promoted discrimination against minorities and against those seeking low-income housing. The Bucks County commissioners did not oppose the lawsuit, leaving the municipalities on their own to fight. The Legal Aid Society’s director, Lorry W. Post, asked that the courts, and not the municipalities, change local zoning rules.
However, the municipalities won in court. In April 1972, Bucks County President Judge Edwin H. Satterthwaite rejected the Society’s demand that the Bucks County planning commission take over local zoning across the county. A year later, the state Commonwealth Court reached the same opinion.
Today, the Biden administration is raising a similar argument, claiming suburbs use zoning rules to block minorities and low-income groups from housing. The White House Council of Economic Advisers wrote in September that “rigid single-family zoning [is] a practice linked with racial segregation, [and] has prevented the construction of multi-family units, which would allow for higher density and an increased supply of housing.”
On Sept. 1, 2021, the White House defined other unacceptable local zoning practices: “minimum lot size requirements, minimum square footage requirements, unnecessary parking requirements, prohibitions on or differing treatment for multi-family homes, accessory dwelling units, and manufactured housing, and limits on the height of buildings.”
Back in April, the White House started a campaign to tie federal funding of local government projects to local zoning practices. The administration wanted to set up a $5 billion fund that would issue grants for roads, bridges and schools only if towns adopted federally approved zoning changes. Since then, the guidelines changed to eliminate the direct threat of defunding local governments. Now, the Biden administration is taking the “carrot” approach by proposing a $4.5 billion Unlocking Possibilities program.
The program’s details show that HUD will have considerable leeway to establish requirements that local governments get rid of some zoning regulations to qualify for program funds.
What does all that mean for local governments? In Perkasie Borough, where I serve on borough council, we have a mostly built-out walkable town with about 9,100 residents in a 2.56-square-mile area. About 30 percent of households are rentals and about 28 percent of buildings fall under multi-family, row home, town home, duplex and apartment usage. We have little room to build, and we locally finance roads, water, sewer, and stormwater systems. The loss of any federal funding would hurt greatly.
In the end, the question as in 1971 will come down to the ability of local governments to define zoning. In Pennsylvania, the state and local governments control zoning through the Municipalities Planning Code and the Fair Share Doctrine, legal precedents that require towns to zone for land uses that include multi-family properties. There are also state court remedies if local zoning policies discriminate.
The Biden administration’s push for federal influence over local zoning policies clearly conflicts with zoning powers reserved to the states in the federal constitution. Back in September 1971, the Legal Aid Society’s Lorry Post told the Philadelphia Inquirer much the same thing. “We decided this was more of a state than a federal problem. I know that I personally wouldn’t want the federal government to get into the local zoning business.”
Scott Bomboy serves on Perkasie Borough Council as the chair of its public safety and historical committees.