Virginia won’t legalize duplexes statewide this year, but the urgency remains

A committee of the Virginia legislature held a hearing Thursday about three bills from Delegate Ibraheem Samirah (D-Fairfax): HB 150, 151, and 152. I testified for 151 and 152, which would have legalized across the state accessory apartments and duplexes, respectively.

The committee tabled both bills, which means they won’t pass this year but can be reworked and heard again during next year’s legislative session. Tabling is one legislative maneuver to quietly put bills to rest. Samirah says he is committed to continuing to pursue statewide land-use reform, so we hope to see a similar bill next year.

The opposition was bipartisan, and mostly rested on committee members’ discomfort with overriding local control on land-use decisions rather than questions of developer profits, land speculation, or rural-area conservation. The Home Builders Association of Virginia testified against it, as did some local officials.

Below are excerpts of my written testimony for 152 below. The Virginia legislature sadly does not livestream its hearings, but Ally Schweitzer of WAMU reported on the hearing.

Single-family zoning is segregation

Legalizing duplexes anywhere where housing is allowed to be built, which Del. Samirah has proposed, is the simplest and most elegant approach to beginning to reverse the wrongs wrought by the institution of single-family zoning in America. Those wrongs range from clear racial segregation to a drastic generational decline in children walking to school. Other, similar bills have passed or are underway in California, Oregon, Washington state, and Nebraska.

We could debate, quite possibly for eternity, just how much this bill will do. Will it really make housing more affordable? Will it really chip away at the economic and racially segregated patterns that are inherent in where we work, play, worship, and live our lives? Will it really staunch the severe, yet nebulous, effects of climate change? Will there be casualties, like rural areas subject to untrammeled development; or sensitive communities exploited by real-estate speculation; or one’s charming, quiet, and bucolic neighborhood, which might see more noise, more traffic, and more people?

In my experience as the housing program organizer for GGWash, where I’ve spent substantial time pushing for the reform or elimination of exclusionary land-use practices like single-family zoning, none of those horrors will come to pass. And you will struggle to do much of the good that you, as lawmakers, I think would like to do in order to make housing more affordable, and staunch the effects of climate change, with Virginia’s current land-use regime, which prioritizes and protects single-family housing in over 75% of the state.

Del. Samirah’s bill represents a decently fair way to reform single-family zoning specifically because it’s a statewide effort. Zoning can be used to manipulate the value of space; this system depends on adjacent space having some sort of varying quality. Smoothing this out statewide ensures that the baseline is uniform across the board. That the baseline is a duplex, and not a single-family home, is critical, because there’s no good reason for single-family zoning to be on any jurisdiction’s books.

Single-family zoning, as it is practiced in the US, is segregation. Its origins are far from benign. Euclid v. Ambler, the landmark 1926 case that confirmed the then-emerging practice of separating uses through zoning, famously includes a tirade against apartment buildings, referring to them as “a mere parasite, constructed in order to take advantage of the open spaces and attractive surroundings created by the residential character of the district.”

I think it is fair to say that this attitude, today, extends to anything denser than a single-family home. Frankly, HB 152 could go further, to legalize triplexes, fourplexes, or sixplexes statewide. We hope that this committee, and the Virginia General Assembly, will continue to take up land-use reforms that legalize, enable, and incentivize dense, accessible, and well-connected multifamily housing, which is more affordable than a single-family home.

As I noted above, single-family homes, merely by virtue of being what’s legal in the majority of the commonwealth, already receive this preferential treatment. This is a mistake. In case there’s any doubt about what Euclid has wrought, academic literature would like a word. In a 2019 working paper, University of California-Los Angeles professors Michael Manville, Paavo Monkkonen, and Michael Lens write, of single-family zoning:

[Single-family zoning] prevents housing development where development would be most beneficial, and instead pushes development—and conflict over it—into denser, lower-income neighborhoods, onto polluted commercial corridors, and into the undeveloped land outside city boundaries. [Single-family zoning] was borne from, and codifies, base and tribal instincts: a desire to set privileged in-groups apart, and keep feared or despised outgroups at bay (Nightingale, 2012). Its history is explicitly classist and deeply interwoven with racism, and its present form only barely conceals these origins (Rothstein, 2017; Weiss, 1987; Trounstine, 2018). It should have no future.

Del. Samirah’s bill comes at a time that the rest of the region, not just Virginia, is wrangling with the future of single-family zoning. Lawmakers in Maryland will consider a land-use reform bill similar to HB 152 this spring. Meanwhile, the District is in the process of amending its Comprehensive Plan, which can either continue protecting affluent neighborhoods from new development, or enable more density citywide.

All of this is good news, especially considering that the Metropolitan Washington Council of Governments voted, in September 2019, to adopt a regional housing production target of adding 320,000 new housing units between 2020 and 2030, which is 75,000 units beyond the amount already forecast for this period. Further, at least 75% of this new housing should be in activity centers or near high-capacity transit, and affordable to low- and middle-income households. HB 152 would better enable the Washington region to hit this desperately needed housing-production target by dropping the requirement that duplexes, at least, be granted a variance, or some sort of other discretionary allowance, to be built.

But it’s not just about the DC region, or even more homes. This committee faces a special decision today, given the commonwealth’s historical tangles with zoning. Euclid was decided in 1926. But before that, in 1911, Richmond adopted a zoning ordinance that made it illegal to sell a house on a majority-white block to a black person, or a house on a majority-black block to a white person. Per Christopher Silver’s 1997 paper, “The Racial Origins of Zoning in American Cities,” Norfolk, Portsmouth, and Roanoke, among others, enacted their own versions shortly thereafter.

Zoning ordinances take myriad forms, and their contents aren’t so on-the-nose anymore. That’s Euclid’s legacy: It took language that explicitly mandated racial and economic segregation and couched it in the more neutral phrasing of building form, and type. But the damage was done far earlier, with the same regulatory tools. In fact, that 1911 ordinance was enabled by the Virginia Supreme Court of Appeals upholding the constitutionality of even earlier legislation, Richmond’s 1908 act to regulate the height and arrangement of buildings.

Zoning’s application, no matter how soft or how harsh or how pointed an ordinance’s words are, continues to legally enshrine deep and persistent segregation in America. Excluding anything but single-family homes—which is the case in the majority of Virginia—is a proxy for excluding other people. Voting in support of HB 152 demonstrates that you are willing to wield land-use laws in a more inclusive way than this country has historically chosen to.