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The Wicked Problem of Zoning

Posted by on Tuesday, December 22, 2020 in Articles, Volume 73, Volume 73, Number 6.

Christopher Serkin | 73 Vand. L. Rev. 1879 (2020) |

Zoning is the quintessential wicked problem. Professors Rittel and Webber, writing in the 1970s, identified as “wicked” those problems that technocratic expertise cannot necessarily solve. Wicked problems arise when the very definition of the problem is contested and outcomes are not measured by “right and wrong” but rather by messier contests between winners and losers. This accurately characterizes the state of zoning and land use today.

Zoning is under vigorous and sustained attack from all sides. Conservatives have long decried regulatory interference with private development rights. More recently, progressive housing advocates have begun to criticize zoning for making thriving cities unaffordable and for exacerbating racial segregation. Environmentalists argue that zoning is responsible for urban sprawl and for increasing carbon emissions. Economists blame zoning for restricting residential mobility, which limits fluidity in labor markets and thereby reduces the agglomeration surplus that thriving places like New York and San Francisco should be producing. And these are just some of the concerns. The breadth of these criticisms reveals the multiplicity of issues implicated by modern zoning—from the balance of public power and private rights, to distributional concerns, environmental interests, economic efficiency, and externalities along many dimensions. Most do not admit of a single “right” answer. Zoning is a wicked problem, indeed.

In true “wicked” fashion, it is difficult even to explore answers because of the predictable and entrenched interests in almost any zoning dispute.

. . .

Zoning, when properly implemented and designed, should give communities time to absorb changes gradually and should provide reassurance to neighbors that one new project will not trigger other new ones too quickly. But zoning should facilitate change and not lock in the status quo. In other words, using zoning to moderate the pace of community change can act as a lubricant to some development by lowering the stakes for community opposition and protecting incumbent expectations. People should not expect zoning to prevent change, but people can reasonably expect that changes will happen at an appropriate pace.

Part I describes the current uses and justifications for zoning and reveals the profound disagreements at the heart of land use regulations today. Part II explores how slow, incremental change minimizes zoning’s interference with expectations. Part III identifies specific land use tools and doctrines that can help to minimize disruption by controlling the pace of community change.

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Christopher Serkin