Suggestions on Discriminatory Zoning

Conclusion

Certainly there was a time when zoning, as a strictly land use protective tool, was appropriate and needed. In the 1920's rampant urban growth led to the need for relief from its congestion, and when that relief was found in newly established suburban areas some protection was needed against encroachment from the same undesirable and inappropriate uses.

"It was as a means of strengthening the institution of private property in the face of rapid and unsettling changes in the urban scene that zoning won such remarkable acceptance in American communities."1 Zoning has been, in terms of public acceptance, incredibly successful. "...thousands of local officials regard zoning as the greatest municipal achievement since the perfection of public sanitary systems."2

But zoning, like the figure Robert Moses, became a tool of good government which became too powerful and too little controlled, except by itself. The question then became, Does zoning fit in with the general principles of governing a city, and does it contribute to the overall structure of governance or, indeed, does it operate by its own rules and principles outside the normal city structure?

Babcock asks whether there is a need for "...an inquiry into ...whether zoning has spawned its own indigenous set of principles, or whether it is subject merely to the principles applicable to other forms of governmental action..."3

Zoning has stayed directed toward one end, that of giving protection to select groups, while ignoring the many other impacts and ramifications such a single-headed approach brings with it. As a Detroit lawyer once asked, "The question must be asked seriously whether zoning, as it is currently being practiced, is endangering our democratic institutions?... Is zoning increasingly becoming the rule of man rather than the rule of law? I would be inclined to answer both questions affirmatively."4

At this point in time the concept of zoning must change. It must become a tool of good planning which incorporates the concerns and needs of the entire community, and must go beyond simply protecting the status quo to providing elements of growth management and social accommodation.

A personal perspective

It is my view that any program of planning, including zoning, can be described as being made up of three components. The first is the basic principle behind the use of the program, the Why of the program. The second component consists of the regulations -- the ordinances, provisions or rules, established for its use. These provide the What, Who and How of the program. Finally comes the physical layout which defines the scope of the regulated district -- the maps and boundaries -- which give the Where.

Based on this model, zoning has dealt very well with the second component. Its ordinances and regulations are generally clear, comprehensible and accepted. The strength and popularity of zoning is due primarily to this factor.

However, zoning does not stand up well to disciplined review of the other two components. The principle of zoning, that of protection of selected districts from encroachment by "undesirable" uses, is too narrow in its focus and discriminatory in its implementation. If based on broader principles, which accommodate the concerns discussed above, zoning could be more acceptable to the community at large, rather than to narrow segments.

Likewise, the mapping of zoning districts creates borders separating communities, rather than bringing them together, a perspective that is inherently retrogressive. Districts are generally formed based on the status quo, rather than on a vision of how the community should be. Districts with "softer" edges and ordinances could mitigate some of the discriminatory practices now found.

How might zoning change? As it now exists zoning is a "police power" given to communities to control land use. Perhaps it should rely instead on another form of power given to local government, such as one of those suggested below:

"Through the power of capital expenditures communities can encourage or discourage growth in certain areas. Certainly new infrastructure leads to growth, while lack of such services inhibits it.

Through the power to give tax incentives or disincentives communities can exercise growth management. In a capitalistic system, paying for the privilege is an acceptable way to achieve desired ends.

Perhaps zoning's ordinance regulations could be replaced with zoning through local referendum. This controversial concept was put forward in by Robert Nelson5 in 1977 in an attempt to remove government as much as possible from zoning application.

Zoning currently is left almost completely in the hands of local government. Perhaps more consistency, uniformity and fairness would result if put under the purview of state and federal government.

Zoning should operate in that most capitalistic of ways, in a completely laissez-faire environment. As Ratcliff says, "In the perfect market, natural zoning would result."6 Babcock responds in a probably appropriate manner when he concludes, "There is little evidence in the history of land development in America that the private decision-maker, left to his own devices, can be trusted to act in the public interest."7

And in the end perhaps something similar to the existing method remains the best. But even so, it is time for a reconsideration of some of its aspects. Zoning should be a tool of good planning.

1Babcock, Richard F. The Zoning Game: Municipal Practices and Policies. Madison, WI: University of Wisconsin Press, 1966. p. 3.
2Ibid. p. 17.
3Ibid. p. 125.
4Ibid. p. 8.
5Nelson, Robert H. Zoning and Property Rights: An Analysis of the American System of Land-Use Regulation. Cambridge, MA: MIT Press, 1980.
6Babcock. p. 115.
7Ibid. p. 185.
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Discriminatory Zoning