Spotlight on Zoning Practice
How Do We Safeguard Our Zoning Reforms?
Zoning reforms to support housing choice and affordability are often conceptually simple but politically fraught. I have clear memories of widespread media coverage in late 2018 when Minneapolis adopted its 2040 comprehensive plan. Outlet after outlet weighed in almost instantly about how the city had eliminated single-family-only zoning, months before its city council even considered a zoning update to make the plan's recommendations law. And while these reports were, technically, premature, most of us in the planning community saw the plan adoption as the big victory and imagined the path to full implementation would be short and straight.
As Brian Connolly notes in the August issue of Zoning Practice, "Protecting Zoning Reform Gains," most of us were wrong. Minneapolis's plan to eliminate single-family-only zoning was tied up in court for over five years before a historic state legislative session put it back on solid legal footing. And Connolly points out that, while there have been many other laudatory zoning reforms in states and municipalities in recent years, it is unwise to assume that those reforms are safe from backlash.
Backlash Tactics
Zoning reform opponents can strike back through multiple means. The most potent tactics use either the courts or the ballot box.
The most classic approach is to challenge the legality of the reform, which, as Connolly stresses, can be surprisingly cheap and easy. In some cases, litigants can take advantage of lower evidentiary standards. In others, quirky state laws override presumptions of reasonableness.
The classic ballot box technique is to vote to replace reformers with revanchists. The mere threat of this tactic may be the primary obstacle to passing reforms in the first place. But Connolly notes in some states and local jurisdictions, the power of the ballot box extends to direct referenda on rezoning decisions — a high-risk, high-reward tactic for anti-reformers.
A Winning Strategy
According to Connolly, planners can use several familiar techniques to minimize or mitigate the backlash. Ultimate success often depends on a broad base of support. Ideally, this starts with a good planning process that embraces authentic public participation. It's important for community members to understand why reforms are necessary and engage them in policy design.
Doing good work up front can build a constituency of vocal grassroots advocates and provide a solid rationale for regulatory changes. Explicit references to the reasons for reform and the intent of specific provisions can help planners and local officials withstand legal challenges on substantive grounds. Keeping municipal attorneys in the loop and paying close attention to procedural requirements can help planners and local officials steer clear of unforced legal errors.
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