Racial Bias in Zoning: The Case of Durham, North Carolina, 1945–2014: The Case of Durham, North Carolina, 1945-2014

The power to zone land use is derived from the power of the states to police: thus, its purpose is to protect the health, safety, and welfare of the public. Since US states grant the power to zone to localities via enabling acts, it may seem logical that any locality would have to zone with the health, safety, and welfare of the people of the state in mind; that to the extent that it is possible, local governments should allow development catering to different income groups, different types of businesses, and so on. However, to date, only the Supreme Court of New Jersey has ever attempted to hold localities to such a standard in the US (NJ Supreme Court, 1975). Thus, localities are generally able to use a great degree of discretion in interpreting whose health, safety, and welfare they should serve and therefore have a great degree of discretion in deciding what type of housing or businesses should exist within their boundaries. As Fischel (2015) explains, households with the ability to attain housing in exclusive communities can elect representatives who will use zoning to create barriers to others’ entry. This maintains these households’ exclusive access to the high-quality services and amenities that their communities usually have to offer. It also means that uses these households do not want in their communities—industry, apartments, fast food, junkyards, gas stations, or even single-family homes on smaller lots—end up concentrated elsewhere. It may be true that high-quality services could not exist without some degree of exclusivity, but the result is that the best schools, recreational facilities, and so on end up “hoarded” by privileged households, presenting a serious challenge to social equity (Reeves, 2017).

With localities free to use zoning with so much discretion, it should hardly come as a surprise that several scholars have connected zoning restrictions with the US’s persistent racial segregation (Pendall, 2000a; Rothwell & Massey, 2009; Rothwell, 2011) and the concentration of industrial uses within communities of color (Arnold, 2007; Maantay, 2002). The reasons for such outcomes are not, however, as straightforward as any community saying “Whites only” (Pendall, 2000a, p. 138). Rather, a locality may reject an application for a housing development citing less controversial (and often genuine) desires to fulfill planning goals such as managing traffic or protecting open space, although at least one prominent theorist of zoning

Racial Bias in Zoning 201 holds that such actions more often reflect desires to restrict housing supply and thus elevate the values of existing homes (Fischel, 2001). Other scholars have found evidence that stringent zoning reflects the entrenched interests of the wealthy (Lens &c Monkkonen, 2016). Some scholars have also argued that racial prejudice underlies such actions (Freund, 2007; Kirp, Dwyer, & Rosenthal, 1997). Race was certainly an explicit motivation for zoning practices in the first half of the 20th century (Silver, 1991). However, comprehensive studies investigating the racial dimensions of local zoning practices during more recent decades have been rare (for exceptions, see Maantay, 2002; Whittemore, 2017b; Whittemore, 2018).

This chapter reviews a study of rezonings made in Durham, North Carolina, from 1945 through 2014.' The study considered the racial, income, and homeownership characteristics of the areas where Durham increased the allowed density of residential use (“residential upzonings”), where it rejected petitions for such increases (“refused residential upzonings”), and where it decreased the allowed density of residential use (“residential down-zonings). The study also considered the racial, income, and homeownership characteristics of the areas where Durham rezoned property from any less intense zoning classification to allow for heavy commercial and industrial use (“industrial/heavy commercial upzonings”) and where it rezoned property from heavy commercial or industrial use to any less intense zoning classification (“industrial/heavy commercial downzonings”2).

I had hypothesized that I would find higher incomes, higher homeownership rates, and—insofar as people of color in Durham have generally been lower income and less likely to own homes—a lower proportion of people of color in areas where the city made decisions restricting the intensity of residential or industrial/heavy commercial development. However, this was not the case: the study finds that through the early 1980s, decisions discouraging denser residential land use (residential downzonings and refused residential upzonings), along with decisions discouraging heavy commercial or industrial land use (industrial/heavy commercial downzonings) occurred in tracts that were on average significantly more white than those where the city made upzonings for these uses but not in tracts that were on average significantly wealthier or with higher homeownership rates. These differences disappeared in the 1980s: a review of zoning hearings, planning publications, and other documents relevant to the city’s zoning practices confirmed the disparate treatment of neighborhoods of different racial characteristics prior to the mid-1980s. Shifts in the city’s politics, and a series of industrial accidents beginning with one at Armageddon Chemical in 1983, put an end to the historically disparate treatment of white and African American areas. Thus, even as the details of each zoning case varied and even as the city never explicitly acknowledged racial motivations for its practices, the uneven geography of zoning practice that emerges over decades of observation provides evidence that race was an important factor in Durham’s historical zoning practices.

More broadly, this chapter speaks to how the character of zoning is highly susceptible to the various biases and agendas of the various entities guiding it. While zoning may well have a lot to do with Durham’s segregation and the concentration of industrial and heavy commercial uses within communities of color, the Durham case also shows that zoning can be manipulated for fairer outcomes given better representation of the population.

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