Zoned Out
Using zoning to keep out what we don’t like is bad law and bad economics.
Thirty years ago I wrote a law review article entitled: “The Misuse of Land Use Control Powers Must End.” Since then I have returned to this theme in one form or another dozens of times—conference speaking, legislative testimony, print articles, op eds, letters to editors—it never seems to end. Then and now, nationally and in Maine, individuals—and very often local governments—believe that zoning legally enables towns to legislate local wishes, aspirations, mores, biases, conceptions of the good life, aesthetic values, political predilections, or desires to resist change. It’s simply not true.
Case law in Maine, and in every other state in the Union, makes clear that reasonable zoning measures or other regulatory controls, applied in an arm’s length manner to all similar activities, is almost certainly permissible. The two keys here are the reasonableness of the control, and the equality of treatment.
For example, a municipal zoning ordinance that permits/invites housing needs to make room for multifamily housing, low- and middle-income housing, rental housing, and manufactured housing. You can’t use zoning to build a town for the affluent only—to keep out types of housing and/or income groups that an incumbent group of residents may be wary of or, worse, simply doesn’t want.
In the same vein, zoning cannot be used to enforce “small shop owner/buy local” sentiments. Zoning that favors a local coffee shop over Starbucks or Dunkin’ Donuts, the local pharmacist over Rite Aid or Walgreens, or the local hardware store over Home Depot or Lowes, is not going to stand up in court. There are any number of permissible ways to advance buy local sentiments—spruce up village centers, provide adequate parking, create walking/sitting areas, good signage/maps, or local festivals, etc. This is where the emphasis needs to be, not on the misuse of zoning powers.
More subtle strategies that don’t actually bar unwanted activities but simply don’t permit them anywhere in the community, or that impose needlessly stringent regulations are increasingly being seen by courts for what they are—exclusionary tools intended to keep out what incumbent residents don’t want. These activities include big box stores, wind facilities, large-scale developments like Plum Creek’s, water bottling facilities, and recycling or other raw materials facilities.
Firms engaged in these or related activities don’t often sue immediately. Instead, they move on to try and find an alternative, a more hospitable location. But if that becomes impossible, these people will only be pushed so far. They have the legal resources, and more importantly the legal right, to force governments to show that refusals of access or stringent regulations are justified. Most municipalities cannot meet these burdens of proof. With the aid of the U.S. Constitution’s commerce clause, and principles of equal treatment under the law, the developer wins—the town, the state, pays a heavy economic price.
If we look further at the economic consequences of this misuse of zoning power, the chilling effect on the economy is palpable. If developer “A” must engage a multiyear regulatory and litigation process before prevailing, developer “B” and “C” won’t even apply. We must see that this is capital investment not being made, jobs not being created, a multiplier effect that is not being triggered. And if, rather than litigate, the developer moves to another state, the pie is shrunk still more, and in a more permanent fashion.
Examples of these realities can be found in all corners of Maine. Peaks Island is trying to keep out a three-unit low-income housing project (“it will change the character of the island”); midcoast towns (Damariscotta, Newcastle, and Nobelboro), “to protect village shop owners,” first imposed a six month moratorium, and then untenable size limitations on big box stores; so-called formula or chain businesses are currently banned in several Maine towns.
The implications go far beyond individual project refusal; they extend to entire industries. Maine is one of the most water rich states in the nation, yet Nestle/Poland Springs, with over $440 million invested in facilities, 800 jobs created, $65 million in annual purchases, is barred in several York County towns. And the topper: We’re fighting to keep oil flowing from the Middle East, and we’re in the midst of the worst oil spill/environmental disaster in the nation’s history, but to protect pristine views from ridge lines, we are barring, regulating to death, or stalling wind energy development in dozens of locations in Maine.
And then we wonder why the recession is not bottoming out—why we’re not bouncing back. In part, it’s because we allow parochial interests to cut off too many development opportunities—we too readily tolerate the misuse of zoning powers by state agencies and local governments.
This misuse of zoning is killing us.
Imagine where our state would be if Maine municipalities and regulators had barred electric power lines because they “marred the view.” With today’s hypersensitive, commerce-averse regulatory environment, I fear such essential infrastructure would now be “zoned out.”
Orlando Delogu is an emeritus professor of law at the University of Maine School of Law.
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