Many urban designers today severely criticize traditional, “Euclidean” zoning theory for failing to accord administrative discretion a sufficiently important role. Zoning codes limit land uses and the size and location of buildings in most areas which are already developed or about to undergo development. Of necessity, these codes delineate urban plans with broad strokes. Frequently they prohibit certain uses or types of building completely, where- as an appropriate exercise of administrative judgment in particular cases might reveal that some representatives of the prohibited class possess no objectionable features. This overbreadth and the vague standards by which administrators must grant variances and exceptions from zoning codes have encouraged the exercise of con- siderable discretionary power by zoning boards. However, the courts have persisted in characterizing the variance and exception as relatively rare departures from preregulation and have struck down most attempts to legitimize the full extent of administrative discretion. As the evidence discussed in this Note demonstrates, zoning discretion continues to operate sub rosa, without adequate expert advice and without the political attention and control which should attach to policy decisions. Zoning administration frequently proves erratic and bears little resemblance to zoning theory or legal norms. In order to deal with these faults, two pro- posals made separately by Professors John Reps and William Weismantel would seek to secure explicit legal recognition of the discretionary function. This Note will discuss both these proposals and the problems which they attempt to solve.
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