A New Idea for State-Led Upzoning: Letting Cities Opt Out

As more and more states look for politically feasible ways to legalize housing amid an alarming new spike in home prices, new ideas keep emerging.

This year, Washington state introduced one such concept: local fiscal incentives. Three state bills there would have given cities extra chunks of tax money for legalizing greener, less expensive housing options like ADUs, fourplexes and apartments near transit. Though they didn’t pass, they did win support from the Association of Washington Cities. This organization had been the most visible enemy of state-led housing legalization. (Here’s a recap of the politics from my boss Dan Bertolet. And don’t miss our boss Alan’s new investigation of how similar laws help keep German housing less expensive.)

Late Thursday night, Connecticut pioneered a different new idea: local opt-outs.

The Senate of that deeply housing-scarce and zoning-segregated state just sent a bill to the Governor’s desk that legalizes ADUs on all one-unit lots. These newly legal accessory cottages could be up to 1,000 square feet or 30 percent of the size of the primary home, whichever is less, and can’t be required to have more than one on-site parking space of their own.

House Bill 6107 is mostly good. But there’s a catch. If two-thirds of a municipality’s planning or zoning commission and two-thirds of its city council (or the equivalent legislative body) agree to override this ADU legalization, they can. They have until Jan. 1, 2023 to do so.

Assuming Gov. Ned Lamont signs the bill, will some Connecticut enclaves manage to override it in their backyards? Yes, almost certainly. Would the bill have passed at all this year without this crucial concession? Presumably not.

It’s an interesting moral dilemma, especially in a state where the pro-housing movement has explicitly branded itself around the goal of desegregation. (Another relevant political note: Unlike in other states, where state housing legalization bills typically draw bipartisan support, HB 6107 passed on near-party-line votes. Most Democrats voted yes and every Republican voted no.)

Progress usually requires compromise

Here’s a case for Connecticut’s HB 6107 despite its big loophole:

• It gives housing the upper hand. Getting two-thirds of two different bodies to vote against housing in the next nineteen months will not be easy. Especially because (and this is clever, though possibly accidental) the bill takes effect 12 months before the opt-out deadline. By the time an opt-out proposal makes it through local government, ADUs may already have been legal for months and it will be obvious that the sky did not fall.
• It scrambles the status quo. As I wrote last year, sometimes the way to get local zoning reform is for the state to shake the Etch-a-Sketch. In many cities, the single hardest part of zoning reform is starting the conversation in the first place. Once cities are forced to break their inertia and start talking about what their residents actually want, they may realize that a lot of people actually do think you should be allowed to build an in-law apartment for your in-laws.
• It does other good things. The bill also includes a modest state-level parking reform. It caps local parking mandates at one on-site space per unit for studios and two per unit for 1-2 bedroom homes. That’s not exactly revolutionary, especially because there’s a local opt-out option for this provision, too. (Unlike with the ADU opt-out, cities have no deadline to nullify the parking rule.) But state-level parking legislation is very rare. Until now, only California, Oregon, and Washington have passed similar measures. And there are various other good provisions in the bill, like removing a state mandate that local zoning codes be designed to “prevent the overcrowding of land” and “avoid undue concentration of population.”
• It isn’t the end of the story. Once ADUs are legal in much of Connecticut—and once more people have seen first-hand that they are actually pretty nice—it will probably become politically easier to legalize them in exclusionary enclaves, too.

Connecticut seems likely to follow Washington, Oregon, California, Utah, Vermont, New Hampshire, and Rhode Island in legalizing ADUs at the state level. Many other states—Washington, California, Montana, Nebraska, Minnesota, Maryland, Virginia, North Carolina, New Hampshire, and Vermont—have recently considered bills that would legalize several full-size units on most residential lots.

However, only Oregon has yet succeeded in legalizing so-called “middle housing” at the state level. It did so in 2019. On Thursday, Oregon Gov. Kate Brown signed a very promising follow-up bill that allows “middle housing” lots—those with duplexes, triplexes, fourplexes, and cottage clusters—to be subdivided for individual sale regardless of local lot-size minimums.

Though Oregon’s middle housing legalization had passed with a single vote to spare in the state Senate, its lot-division follow-up sailed through both houses with near-unanimous support.

Housing advocates in Connecticut and elsewhere can take comfort in this. Each victory might make the next one a little easier. That’s as good a reason as any to keep trying new ideas.