Zoning is under attack from all parts of the political spectrum. Those on the right have long decried zoning, arguing that land use matters are better left to private actors who can regulate without government intervention by using covenants and servitudes. Those on the left have more recently come to recognize that zoning has been used to segregate populations along racial and economic lines. What does this widespread criticism mean for the future of zoning?
Professor Michael Alan Wolf argues in his recent article, Zoning Reformed, that zoning is too entrenched to be abolished but that it needs to be reconstituted for its second century. In particular, zoning laws need to be reformed to address three contemporary challenges: climate change, pandemic resiliency, and social justice.
Professor Wolf does not suggest that localities should abolish zoning; rather, he is worried about inertia and inaction. He writes that “to do nothing to adapt zoning and other forms of land use regulation to the stark current and anticipated realities would be an abdication of responsibility, much like waiting for COVID-19 suddenly to disappear.” (P. 177.)
In short, these important problems are not going to go away on their own, so it is imperative that we make use of zoning to address them immediately.
He starts by tracing the history of zoning, which began at roughly the same time as the last global pandemic. Early zoning codes had two goals. First, they sought to reduce the types of urban congestion that were leading to the spread of disease. Second, they aimed to protect affluent city residents from the “huddled masses” they deemed less desirable, given that the Supreme Court had already struck down overtly racial zoning schemes. This historical background section serves to remind us that, from the outset, “zoning has been inextricably linked to distinctions based on caste, race, ethnicity, and social status.” (P. 184.)
In addition to separating people, zoning also separates land uses, of course. The current pandemic brings into question the desirability of segregating residential areas from shopping and office zones.
Millions of people spent the last two years working from their homes and many of them will likely continue to do so at least part of the time. Yet current zoning codes often prohibit this mixing of uses. Describing doctors who treat patients from home via telehealth, possibly in violation of local zoning ordinances, Professor Wolf inquires, “As long as those patients are not affecting traffic and parking in the neighborhood, why is it the concern of the zoning officials and nosey neighbors?” (P. 188.)
With families forced to live in “pods,” he wonders, why should single-family zones persist? Wouldn’t it make more sense to permit the types of group living that became more common as families sought protection from Covid?
Why should people have to commute long distances, perhaps using public transit, to reach stores that might otherwise be located within walking distance? Why shouldn’t families be allowed to construct accessory dwelling units for aging parents as an alternative to moving them to senior facilities in which illnesses may spread more easily?
Why, Professor Wolf asks, should a business lose its right to operate as a nonconforming prior use merely because it was forced to shut down temporarily at the peak of the pandemic, or because it elected to modify its business by constructing a safer drive-through window?
Modest zoning amendments may be appropriate reforms to codes that were drafted without anticipating these types of questions. More generally, Professor Wolf recommends that cities revisit cumulative zoning as a means of encouraging pedestrian-oriented development.
Later in his article, Professor Wolf provides a list of possible zoning amendments, each followed by a brief explanation and justification.
For example, it would not demand a huge change to a typical zoning ordinance to allow factories and warehouses to switch to the production and storage of medical supplies and equipment. Nor would it be difficult to amend a zoning code so that shopping malls and big-box stores that have gone dark—a trend that predates the pandemic—could be transformed into food banks, testing centers, and vaccination sites.
These uses may violate current ordinances, but recent events suggest that those ordinances have become outdated for reasons most of us did not anticipate. Now that we recognize these problems, we need to update our zoning ordinances accordingly.
In his conclusion, Professor Wolf offers a six-page checklist of the types of modifications that local governments should consider. While these modifications may have made sense for years, “there should be a new sense of urgency to strengthen the weakest links in the zoning and land use regulatory chain, now that we are witnessing the serious health-related, social, and financial effects of inattention and apathy.” (P. 236.)
Zoning ordinances tend to remain on the books unmodified for long periods of time. Knowledgeable and interested individuals who need minor changes may seek variances, while the rest of the population remains unfocused on land use issues that do not affect them directly and immediately. As a result, many localities are operating under codes that have not seen major review for decades.
Professor Wolf’s article is a much-needed reminder that we need to re-examine the presumptions underlying our zoning ordinances. It is always wise to review old laws to see if they continue to serve their intended purposes. Given the many curveballs that have been thrown at all of us during the past two years, it is even more important than usual that we ask whether our land use laws are continuing to accomplish the goals for which they were adopted, particularly when some of those goals are evolving rapidly.
Professor Wolf’s article is timely, thoughtful, and creative. Even if you do not agree with some of the modifications that he proposes, there are many other necessary and useful ones to choose from. Zoning Reformed is an important and worthwhile contribution that arrives at just the right time.
