Zoning is having a moment. Americans are increasingly aware that zoning helps create and perpetuate disparities in wealth, income, and opportunity, and segregation of neighborhoods by race and class. Whether this is or was the intent of those who operate zoning systems, the results are clear: Zoning is a very effective tool to exclude what we do not want in a particular location, and we have overused that tool in damaging ways.
Many analyses have shown that changes to zoning use controls and development standards – especially those that allow wider varieties of housing – could promote greater affordability and equity. Much less has been written about the key important role that zoning procedures play in creating more equitable zoning outcomes for historically disadvantaged communities.
But my 40 years of experience revising zoning systems throughout the U.S. has taught me that those procedures are just as important as the rules governing what can be built and where.
When the importance of zoning procedures is discussed, it is often limited to calls for broader public notice to make sure that “everyone affected is in the room” when zoning decisions are made. But there is much more we need to do, as outlined in the American Planning Association’s 2023 Equity in Zoning Policy Guide and detailed in my recent book, An Even Better Way to Zone.
Better, more inclusive notice is an important first step. Cities as diverse as San Diego and Detroit now notify renters as well as property owners for most zoning decisions, and many other cities are following suit.
But biases in zoning procedures run deeper than that. Even when everyone is invited (and understands the invitation), those with better English skills, a better understanding of local government decision-making, and greater ability to attend hearings are often more successful at defending their neighborhoods from changes that are needed in the community as a whole.
To counteract those biases, a second important, but often controversial, change is required: We need to remove public hearing requirements and discretionary reviews for projects that comply with objective zoning and subdivision regulations. I call these “late-in-the-game hearings,” because in most cases they are intended to review the details of a project that already meets zoning requirements.
That’s right. Fewer public hearings can lead to more equitable zoning outcomes and a fairer distribution of housing and employment opportunities. That’s because fewer public hearings means fewer opportunities for subjective decision-making about projects that already reflect what the zoning rules say we want to see happen.
Originally, zoning policy offered few opportunities for discretionary decisions on development approval after rezonings have been approved. But since World War II, we have multiplied the opportunities for subjective decision-making, and that is a major source of zoning inequity. Examples include discretionary site plan and building form and design reviews based on subjective criteria. Albany, New York, has removed its public hearing requirement for Minor Development Plan Reviews, and Colorado Springs, Colorado, has done the same for its Development Plan Approvals.
But removing late-in-the-game public hearings requires that two types of hard work happen first. The first is to ensure that substantive zoning regulations reflect key citywide and neighborhood planning goals. If the zoning rules accurately reflect what will promote “public health safety and welfare” as embodied in the adopted comprehensive plan, then there is no need for a separate discussion of whether individual projects that comply with those rules will promote those same goals.
The second key is to ensure that criteria used in rezoning, subdivision, and other development decisions are clear and objective rather than vague and subjective. That means removing words like “harmonious,” “appropriate,” “character,” “contextual,” “compatible,” and “consistent” from the criteria used to make development approval decisions and replacing them with objective statements as to what is acceptable in different areas and situations.
The use of vague terms often leads to arguments as to what they mean and whether the proposed project complies. Some residents have a lot more time, money, and ability to engage in those arguments, particularly when needed types of development are unwanted in their neighborhoods.
But the harm embedded in vague zoning criteria is even deeper than that. The prospect of having to argue about whether a proposed development complies with subjective criteria can discourage smaller and less well-financed builders from pursuing a needed project. Many firms owned by disadvantaged populations, women, and veterans fall into this category.
It is far better to debate how to replace subjective with objective terms once than to debate compliance over and over again for each project. Bloomington, Indiana’s General Compliance Criteria and Rochester, Minnesota’s criteria for General Development Plan approval do a good job of avoiding those vague criteria.
A third way to make zoning procedure fairer is to limit appeals of late-in-the-game zoning decisions. While an appeal process is clearly needed because people make mistakes, in recent years there has been a rise in the use of appeal procedures to delay needed projects and get “a second bite at the apple” – i.e., a chance for a second decisionmaker to make a different decision based on the same facts.
Obviously, vague and subjective appeal criteria feed this problem, because reasonable decisionmakers can easily disagree about what vague terms mean. Appeals should only be accepted if the appellant cites a specific objective rule or requirement in the zoning regulations that has been ignored or misapplied by staff. Prince George’s County, Virginia’s criteria for review appeals by the Board of Appeals is consistent with this approach.
In addition, the appeal should be “on the record” — based on a review of the same information that was available to the original decisionmaker. Appeals are not intended to be opportunities to introduce new evidence.
Finally, if at all possible, the appeal should go to a hearing officer or someone experienced in making decisions based on evidence in the record, rather than to elected officials who may be more subject to public pressure. Denver, Colorado, has long followed this approach.
It’s no secret that zoning and development approval procedures perpetuate major gaps in opportunity, income, health, and wealth for historically disadvantaged communities. But cities and community leaders should also know that simple, behind-the-scenes procedural reforms like these can make a real difference in outcomes.
Donald L. Elliott is the author of An Even Better Way to Zone: Achieving More Affordable, Equitable, and Sustainable Communities, co-author of The Rules that Shape Urban Form and The Citizen’s Guide to Planning and has served as the editor of Colorado Land Planning and Development Law for more than 20 years. He has assisted over 40 U.S. communities to update plans and regulations related to housing, zoning, subdivision, and land development.