Nudging Smart Growth

Homeowners might actually welcome density in their neighborhoods — they just need a Nudge to find it out.

There are lots of problems with Sunstein and Thaler’s book Nudge, but its central premise has potentially powerful applications to a host of problems. Sunstein and Thaler posit that in many policy areas, “choice architects” can help people make better choices without impairing their actual ability to make that choice — a philosophy that they call (misleadingly but ingeniously) “libertarian paternalism.”

The land use and smart growth area could serve as a fruitful place to look at nudges, because it is so highly regulated that there is no politically feasible way to simply leave things alone even if you wanted to (which I don’t).

Consider the case of Accessory Dwelling Units, better known as “granny flats.” Granny flats are an attractive way to add density in a city (thus advancing Smart Growth goals) while not changing the character of single-family neighborhoods. The City of Los Angeles needs to add roughly 112,000 new housing units of the next five years to meet anticipated demand, but is mostly built out, and few want massive new skyscrapers all over the city.

So why aren’t there more granny flats in Los Angeles? Simple: it’s essentially illegal to build them unless you have a very large lot (more than 7,500 square feet). And why is it illegal? Because, so the conventional wisdom goes, the neighbors hate them and will do anything to block them.

But will they? We don’t really know. In fact, if anything, we only know that a small group of homeowners don’t like them. And that’s where the Nudge comes in.

Right now, on the assumption that homeowners hate granny flats, most zoning laws prohibit them. But instead of the extremes of either banning them or allowing them, it would make more sense to allow them unless a majority neighborhood residents within a certain radius write protest letters to the local council member.

This would not deprive local residents of the entitlement that they current have, but it would make them exercise that choice. In this sense, it is very similar to the famous Nudge of automatically signing people up for 401(k) plans but allowing them to opt out.

One of the (many) flaws of Smart Growth critics is that they assume current land use patterns exist because that’s the way people like them. Smart Growth proponents counter that they don’t have any other choice. “Smart Growth Nudges” could provide a fruitful method of experimenting to see who is right — as well as making neighborhoods better in the process.

Author: Jonathan Zasloff

Jonathan Zasloff teaches Torts, Land Use, Environmental Law, Comparative Urban Planning Law, Legal History, and Public Policy Clinic - Land Use, the Environment and Local Government. He grew up and still lives in the San Fernando Valley, about which he remains immensely proud (to the mystification of his friends and colleagues). After graduating from Yale Law School, and while clerking for a federal appeals court judge in Boston, he decided to return to Los Angeles shortly after the January 1994 Northridge earthquake, reasoning that he would gladly risk tremors in order to avoid the average New England wind chill temperature of negative 55 degrees. Professor Zasloff has a keen interest in world politics; he holds a PhD in the history of American foreign policy from Harvard and an M.Phil. in International Relations from Cambridge University. Much of his recent work concerns the influence of lawyers and legalism in US external relations, and has published articles on these subjects in the New York University Law Review and the Yale Law Journal. More generally, his recent interests focus on the response of public institutions to social problems, and the role of ideology in framing policy responses. Professor Zasloff has long been active in state and local politics and policy. He recently co-authored an article discussing the relationship of Proposition 13 (California's landmark tax limitation initiative) and school finance reform, and served for several years as a senior policy advisor to the Speaker of California Assembly. His practice background reflects these interests: for two years, he represented welfare recipients attempting to obtain child care benefits and microbusinesses in low income areas. He then practiced for two more years at one of Los Angeles' leading public interest environmental and land use firms, challenging poorly planned development and working to expand the network of the city's urban park system. He currently serves as a member of the boards of the Santa Monica Mountains Conservancy (a state agency charged with purchasing and protecting open space), the Los Angeles Center for Law and Justice (the leading legal service firm for low-income clients in east Los Angeles), and Friends of Israel's Environment. Professor Zasloff's other major activity consists in explaining the Triangle Offense to his very patient wife, Kathy.