Story 6: “Power”

Zoning is a contentious political issue. Its proponents had to fight hard to make state intervention in real estate development accepted by the industry and by the courts. They were successful, in part, because they gave property owners and developers an important say in the design and implementation of zoning ordinances and provided them with mechanisms to lessen the burden of regulation. Other interest groups joined the fray as well in an effort to democratize decision making.

Municipalities receive their powers from higher-level governments (in federal systems, the state or the province); this devolution of power come with conditions relative to democratic procedures and due process. Municipal laws and charters thus subject the adoption of plans and zoning regulations to requirements such as the use of three readings in public meetings of the city council and the inclusion of mechanisms for public information and consultation. In the 20th century, zoning was strongly affected by the politics of good governance and of local control. Its diffusion in North America was propelled by the Reform Movement for clean, efficient government (Scott, 1971; Wolfe, 1994).

Among the powers given to municipalities is the power to grant permits. The permitting system initially served to control the location of taverns, slaughterhouses, oil storage facilities, and other potential sources of nuisance or danger, and permits were initially granted by the city council (Fischler, 2007). But as the size of cities grew and the number of applicationsincreased, unelected officials were granted authority to deliver permits. One key issue in this delegation of power was the margin of discretion given to these officials in their handling of requests. In the US, a lack of trust in municipal officers in the late 19th and early 20th centuries (fed by the well-publicized problems of machine politics) pushed reformers to institute quantitative standards that left little room for interpretation and shaped the land use regulation system as a whole in ways that limited discretion on the part of planners (Fischler, 2000; Hirt, 2014). Discretionary controls, which were prevalent in the UK, did eventually find a place in North American zoning, especially in the 1960s and later, when a class of better-trained planners entered municipal administrations.

The use of specification standards (setbacks of so many feet, wall thicknesses of so many inches) limited the room for discretion. But not all regulations could be designed with such unambiguous norms. Officials therefore typically relied on two sources of information outside of regulations to pass judgment: they questioned neighboring property owners to see what objections were raised against projects that could potentially cause nuisances and they used technical expertise in matters of construction.

Property owners’ input was considered not only when the municipality wanted to adopt a new bylaw or was considering a request for a development permit. Owners could also petition the city to pass a regulation to protect their interests, for example, by designating their block as “residential” in nature and therefore off-limits to apartment buildings, stores, and so on (Veiller, 1916). In addition, applicants for development permits were given the right to claim hardship from existing regulations and to petition a board of appeals for exemptions from specific standards. This made sense: owners of lots where standards do not allow for adequate development and profitability must be entitled to a partial waiver of regulations to enable them to put their property to good use; otherwise, the regulation would amount to a taking that deserves compensation. This legal “safety valve” has, of course, been exploited very eagerly by developers who have claimed hardship in ways and in numbers zoning pioneers did not predict (Bassett, 1923). Variances were supposed to be exceptional, but in some cities and/ or in some periods, they become fairly normal. Developers who otherwise appreciate the contribution of zoning to lessening risk in real estate investment like the variance as a means to achieve greater margins of profit under relaxed rules. Planners who otherwise legitimate zoning as a set of fair rules of the game like the variance for the opportunity it affords them to bargain with developers in the hopes of obtaining certain public benefits. Because processes to obtain variances require time and expertise, they favor players with more financial and social capital (Fischer, Stahl, & Baird-Zars, 2018).

While citizen participation in the early years of zoning was generally limited to input by property owners, it also entailed the intervention of elite community groups devoted to good government, high-quality design, historic preservation, and such causes. One of the oldest and best known is

New York’s Municipal Arts Society, which was founded in 1893 (Gilmartin, 1995). The formal scope of citizen participation in zoning has broadened over the past decades. Planning laws require that for major zoning changes (defined as changes that affect whole districts or as changes that affect large projects), municipalities hold public hearings, hearings at which all citizens can voice their concerns (see Stahl, this volume, for an illustration of uneven application in New York City). Some cities have instituted arm’s-length bodies to run these public hearings and report citizens’ objections and recommendations. Montréal, for instance, created the Office de consultation publique de Montréal, whose staff, with expertise in urban planning and/or public consultation, prepare and present relevant information, hear testimonies, and submit their findings to the Executive Committee of City Council (Aubin & Bornstein, 2012). Requirements for public participation in Québec planning law are modest (only one public hearing is compulsory in most cases), but the law grants neighbors of zones adjacent to where a zoning change is being proposed the right to call a referendum and, if they garner the majority of the vote, the power to stop the change from happening.⁸ Referenda on zoning changes and citizen initiatives to request that authorities make such changes have been allowed in some US states, although their legal status has been questioned (Callies, Neuffer, & Caliboso, 1991; Caves, 1992).

The “Power” storyline of zoning shows the gap that exists between the theory of zoning and its actual practice. Functionally, zoning is one tool among others to implement the broader planning vision conveyed through comprehensive or strategic plans. In reality, much zoning is done with little planning (see Baird-Zars, this volume). Neither suburban Westmount nor metropolitan New York City adopted master plans before passing their respective zoning regulations.⁹ Zoning is also supposed to be comprehensive in scope; its legitimacy rests on the adoption of a citywide view and the analysis of broad patterns of development. In practice, much zoning activity concerns very small areas, sometimes even single plots of land, and occurs in response to requests from developers to change zoning regulations for a given area and or to waive existing requirements for a specific project. Only very rarely do municipalities engage in proactive and/or large-scale revisions of their zoning code. Finally, zoning provides opportunities for the exercise of participatory democracy. Too often, however, the process reflects the unbalance of power between pro-development forces and the grassroots.