The Evolution of Zoning since the 1980s: The Persistence of Localism

The “evolution” in the title pulls together three themes in this essay. One is an assessment of where the practice of zoning has gone since I published my first book, The Economics of Zoning Laws in 1985. The major pressures for zoning to change have come from above: The courts and the federal and state governments. It has not been a grass-roots movement. I conclude that most of this activity has made zoning more restrictive than it would otherwise have been. Zoning has remained resolutely local despite (or perhaps because of) political and legal movements seeking to change it. The second theme is how my views about the American practice of land-use regulation has changed over the last twenty-five years. This has less to do with changes in zoning itself and more with my subsequent scholarship, almost all of which has concerned the economic role of local government in the United States. I have come to see zoning as a critical part of the process of local government, and local government as an essential part of a federal system.
The third theme is a gingerly advanced proposition about local government in general, though the focus is land-use regulation. I will suggest that zoning’s historical development— evolution may be too fraught a term—should be regarded as being comparable to that of the common law and thus be taken more seriously by scholars than it normally is. My specific example is the development of zoning in Los Angeles that led to the puzzling court decision, Hadacheck v. Los Angeles, 239 U.S. 394 (1915), which permitted the city to expel a previously established brickyard from a subsequently-developed residential area without compensation. The fulcrum issue is why most zoning allows nonconforming uses to continue despite that decision. To add to Dick Babcock’s oral dictum that “nobody loves zoning but the people” I would add “and nobody but the people can change zoning.”

William A. Fischel

Lincoln Institute of Land Policy

September 21, 2010

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