In true "evil" fashion, it's hard to explore answers yourself because of the predictable and entrenched interests in almost every zone dispute. Johnson, Environmental Impacts of Urban Sprawl: A Survey of the Literature and Proposed Research Agenda, 33 ENV'T & PLAN. Existing residents are often opposed to change, as if the very survival of the neighborhood and the community were at stake.
Understanding the importance of the pace of change reduces the stakes of zoning disputes and suggests a new conception of municipal land use regulations. For an 8-bit cartoon demonstration of the phenomenon, see Carrie Engel, Play the Dream Hoarders Game, BROOKINGS:.
THE WICKED PROBLEM OF ZONING
Historical Uses and Justifications of Zoning
Zoning's early defenders focused on zoning as a form of nuisance prevention.29 The goal, very explicitly, was to use planning expertise to prevent conflicting uses of land before they arose.30 The 1920s were a time of industrialization. and urbanization, and the traditional judicial remedy of nuisance legislation was not suited to the intensity of the new land use conflicts. The traditional vision of zoning has as much in common with modern land use control as It's a Wonderful Life has in common with modern banking.32 Of course, zoning still plays an important role in keeping harmful uses - gas stations, factories, mature businesses - out of bucolic residential environments. HIRT, ZONING IN THE USA: THE ORIGINS AND IMPLICATIONS OF AMERICAN LAND USE REGULATION describing original zoning limits).
In classically vicious fashion, even the goals of zoning are increasingly contested, and conflicts between various stakeholders have come to dominate current debates about zoning: between insiders and outsiders, and between environmentalists and historic preservation advocates, among many others.3 6 Simple unpacking of these various interests and conflicts reveals the complexity - the wickedness - of the zoning problem.37. That seems like a broader framework than zoning, but in fact the most intractable disputes in urban politics are perfectly tied to land use and zoning conflicts.
Contemporary Uses of Zoning
Not every community pursues each of the goals below, nor are they (mostly) mutually exclusive. They will be instantly familiar to most people and will reveal the wickedness of the zoning problem. Urban planners, whose plans typically serve as the basis for zoning, face much broader considerations than simply preventing land-use disputes between neighbors.
observation that planning footpaths in advance removes the opportunity to see where residents will walk most); John Rahenkamp, Land Use Management: An Alternative to Controls, in FUTURE LAND USE: ENERGY, ENVIRONMENTAL, AND LEGAL CONSTRAINTS Robert W. Burchell & David Listokin eds., 1975) (arguing that planners have historically been bad at predicting consumer behavior predicted). Hanushek & Kuzey Yilmaz, Land Use Controls, Fiscal Zoning and the Local Education Provision, 43 PUB. In addition to tax revenue, land use regulation can have a more direct impact on municipal finances by producing fees and claims.58 Disbursements are conditions that a local government imposes before granting permission to develop property, and they vary greatly in form.59 E.g. , a local government may require certain infrastructure improvements or mitigation of certain impacts before allowing development to proceed.
state that because a home is often a person's most important economic asset, homeowners are incentivized to monitor local government land-use decisions). finding evidence that zoning is responsible for high housing costs in certain markets); see also Rolf Pendall, Local Land Use Regulation and the Chain of Exclusion, 66 J. Historic preservation has become an ongoing concern of land use regulations, if not zoning itself.72 Historically.
See, e.g. Vicki Been, "Exit" as a Constraint on Land Use Exactions: Rethinking the Unconstitutional Conditions Doctrine, 91 COLUM. Local governments also use zoning and land use regulations to preserve open space and protect the environment. See Serkin, supra note 45, at H]istoric preservation is often a kind of crude proxy for the real concern of preventing the displacement of the existing community.").
Salkin, Land Use Sustainability and Planning: Greening State and Local Land Use Plans and Regulations to Address the Challenges of Climate Change and Preserve Resources for Future Generations, 34 WM. Adult uses, such as strip clubs and adult bookstores, are often targets of zoning.94 While the First Amendment essentially prohibits substantive content-based regulation of expressive activity, the Supreme Court has upheld land use regulations that address the secondary effects of adult uses. such as crime prevention.95 But such moral zoning can also target religious minorities, such as efforts to ban a mosque in Murfreesboro, Tennessee.96
Contested Land Use
ZONING AND INCREMENTAL CHANGE
Elements of systems are mutually dependent, interactions between them are non-linear and therefore the response of the system to change in one element can be highly disproportionate.”) See Daviter, supra note 11, at 574 (“In stark contrast” to the widely shared idea that solving wicked problems is not a viable option, a significant part of the more recent debate seems to promote strategies designed to achieve just that. "), making it even more difficult. to solve.12 5 In other words, incremental solutions are never ideal, the question is whether they.
Lear, Accretion, Reliction, Erosion, and Avulsion: A Survey of Riparian and Coastal Title Problems, 11 J. explains the "universal rule" that the owner of the bank or shore becomes the owner of "accrued lands" while also risking the loss soil due to erosion). They imagine a new eyesore blocking the horizon and changing the character of the community; one day they live in their bucolic neighborhood surrounded by people they know, and the next day they don't. 34;Develop Don't Destroy Brooklyn" T-shirts popped up everywhere, hipster status symbols protesting the scale of the development and the gentrification it was sure to bring.
And yet, ten years later, the development has become just part of the city's background. Neighbors may still cringe at hockey night, but many nearby residents — including some of the most ardent opponents — now don't notice the changes the development has brought. Bagli, $3 Million Deal Ends a Holdout in Brooklyn, N.Y., which describes the history of opposition to the Atlantic Yards project).
See, e.g., Andy Newman, How a Once-Loathed Brooklyn Arena Became a Protest Epicenter, N.Y., which describes how the controversial Barclays plaza in Atlantic Yards became a center of the community's Black Lives Matter protests). One of the leading justifications for local control over property taxes and spending comes from the pioneering work of Charles Tiebout in the 1950s.150 In his famous Tiebout hypothesis, he investigated whether and why local governments should be expected to provide efficient levels of public services. the absence of a price signal.151 That is, one might expect that local governments' ability to impose an involuntary property tax could lead to the oversupply of municipal services, with local governments providing benefits that people do not actually receive. not appreciate However, the Tiebout hypothesis depends on stability in local taxes and spending priorities - in short, on stability in the character of local government.157 Changes in the mix may mean that housing consumers who have chosen a location for one set of characteristics may find that the place changes over time, sometimes dramatically.
ENACTING INCREMENTALISM
Zoning can help protect the interests of housing consumers who have chosen a place for a particular set of characteristics by limiting the pace of change.158 This is zoning simply as a brake on change, rather than in service of any particular agenda. The first and most obvious tool is concurrency, or adequate public utility regulations.159 Concurrency is a land use regime that imposes phased growth expectations.160 Concurrency was adopted in Florida primarily in the 1980s and was designed to ensure that development does not exceed infrastructure. Essentially, a concurrency regime requires local governments to plan for reasonable infrastructure expansions, such as roads and wastewater (or even schools), and then limit development in a given year to levels consistent with those infrastructure plans.162 Importantly, developers However, they could work their way out of concurrency limits by paying directly for additional infrastructure capacity.163 For example, a municipality could plan to extend sewer lines to an area to serve five hundred additional homes, to be paid for from general revenues from the property tax. . Nevertheless, concurrency (and associated doctrines of adequate public services) is one of the few land use regimes that explicitly focuses on the pace of change, not just the quantity of change.168 As a result, concurrency can easily be repurposed to ensure that growth does not exceed community expectations for stability rather than mere infrastructure capacity.
They will err on the side of protecting the expectations of on-site owners and will do very little to address the acute problems that restrictive zoning can create.169 There must be a stick as well as a carrot. Courts and state legislatures have developed many approaches to this problem, ranging from builders' remedies to assigning fair share obligations.170 There is no need to repeat them here, and most have proven ineffective or problematic.171 But states have the power to enforce agreements.172 They could, for example, threaten more sweeping land-use reforms if local officials do not plan. The point is simply that concurrency regimes provide a model for regulating the pace as well as the amount of growth.
Similarly, the idea of a "zoning budget" put forth by professors Rick Hills and David Schleicher can be invoked for the pace of change.174 As they perceptively argued, local officials typically view zoning decisions piecemeal.175 Given the concentrated interests of opposing neighbors against nearby development, local officials often bow to pressure to submerge property without considering the overall system-wide effects of too many downzonings.176 Hills and Schleicher therefore proposed a zoning budget, according to which each downzoning would have been accompanied by a corresponding upzoning another place.177 This creates meaningful interest groups aligned on both sides of any rezoning and forces local officials to consider some of the system-wide consequences of their individual land-use decisions.17 8. Multi-year, intertemporal agreements on the pace of change require zoning budgets that lasts beyond a single year. For example, imagine a ten- or fifteen-year zoning budget that anticipates growth and requires adjustments for development and change, but allows local officials to decide when that change will occur within the long budget cycle.
At the very least, a longer time horizon for zoning budgets could help manage the pace of change. Typically, the spread of development in a community is seen as a reason to allow more development.184 A number of land use tests - whether under constitutional, statutory or judge-made rules - focus on the treatment of others in the community.185 The obvious concern is treating similarly situated property owners equally, and courts tend to be concerned if one property owner is allowed to develop in ways that a similarly situated neighbor is not. Courts must look at the magnitude of community change and put a thumb on the scale against additional development if change occurs rapidly.
