When seeking zoning approvals for new multifamily housing, developers often face a high degree of complexity and uncertainty. Public hearings prioritizing neighbor participation are a big reason for that. In this regard, zoning is fundamentally different from other administrative processes, where citizens can weigh in on the development of generally applicable rules, but cannot veto individual permitting applications. Because so much potential housing development is subject to discretion and uncertainty through public hearings, that process can stifle housing production and contribute to an ongoing housing affordability crisis.
Calls to streamline the public hearing process are often met with the criticism that “as-of-right” development (meaning that local agencies apply objective standards rather than subjective discretion when granting approvals to development proposals) gives short shrift to public participation.
But as-of-right approvals and public participation are not mutually exclusive and, in fact, co-exist quite comfortably in many areas of administrative law. This piece offers suggestions for a more equitable and effective approach to public participation in the zoning sphere.
Public participation increases uncertainty and perpetuates inequity in development applications
In a recent article, I recounted how many arguments for public-participation-informed discretionary approvals fall apart in light of evidence about the way that this participation operates in practice. The public participation process tied to zoning approvals has three major shortfalls: 1) it discounts the value of objective information and technical expertise in favor of subjective opinions; 2) it prioritizes speakers who are unrepresentative of the whole community; and 3) it has few mechanisms for addressing misinformation. A better land development process should seek to address all three of these problems.
We know angry neighbors show up to testify against discretionary approvals (sometimes even in song). We know that public hearing participants tend to be whiter, wealthier, and more opposed to housing development than the general population of the neighborhoods in which they reside. But what is also notable is who does not show up to testify: Important constituencies that are represented in planning processes are often excluded from individual development approvals. Consider, for example, future residents. Others have noted the impossibility of expecting potential future tenants to testify in support of a project. Even current tenants of redevelopment projects often refuse to attend these community meetings, citing the stress and difficulty of testifying in favor of a project despised by so many of their neighbors. They know that local officials routinely ascribe legitimacy to wealth and its proxies: longtime residency and homeownership.
Housing advocates and scholars frequently testify before city councils and state legislatures when those bodies take up issues related to housing affordability. But they can’t show up in support of each and every development proposal.
The resulting process prioritizes the voices of self-interested neighbors and ignores both experts and those who do not benefit from the inflated housing prices that come with constrained supply. It is destined, if not designed, to perpetuate the current housing shortage and affordability crisis.
Other forms of regulation offer a better participation model
Zoning is not the only realm in which agencies must apply rules to decide whether applicants can move forward with a project. Child care licensing provides a comparison between zoning’s public participation process and those found in more typical administrative processes.
Home-based child care providers must be licensed by the state, the requirements for which are found in regulations from a state agency. The agency adopts those regulations following solicitation of public input. Once the regulations are adopted, the state agency reviews a provider’s credentials and inspects her home for consistency with the regulations. If the home and provider meet objective standards, the agency issues a license.
This child care licensing process is objective and “as-of-right,” while still incorporating public participation during the drafting of regulations. Contrast this with the zoning process, should the child care provider want to open their home-based business in a place that requires permission from a local board of laypeople. Zoning is often subjective; the local board will grant permission if, for example, an application is “in accord with the public convenience and welfare.” All too frequently, the applicant’s neighbors successfully lobby for a denial simply by citing nebulous concerns about noise, traffic, and degradation of “community character.”
Licensing and zoning are two very different administrative processes. Both incorporate public participation, but at different stages. Licensing is as-of-right, while local zoning approval is “discretionary.” Given the lack of adequate child care options, the frequent use of that discretion to deny applications is a tragedy not just for educators whose livelihoods are put at risk, but for parents and their employers too. The same can be said for its effect on the construction of new housing.
Involve communities proactively when planning—not reactively on a project-by-project basis
Public participation ought to inform generally applicable zoning regulations, as is the case for the child care licensing process. A robust approach to planning and generally applicable zoning regulations also introduces the opportunity for states and local governments to require plans to advance statewide policy goals, such as accommodating the development of new housing. Public participation should not play a rule in applying those rules to individual development proposals.
Skeptics might point out that individual proposals attract more participation than planning processes do. That is a problem created by the current system—because so many decisions are made at the development approvals stage, there is little incentive to participate in the planning process. Consequently, fewer people participate in planning. Those who do are undermined by later participants in the development approvals process.
Zoning should look more like other administrative processes. Consider again child care licensing: The public is invited to provide input on generally applicable licensing regulations, but it would be quite strange if they were invited to comment on every child care provider’s application for a license.
Giving angry neighbors an opportunity to kill a project that is consistent with state and local law prevents the zoning system from functioning properly. Fixing broken public participation processes is a small but essential piece of fixing our broken zoning laws.