Agenda - Planning Commission - 04/01/2004

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The use of negotiated zoning raises impor- tant legal and policy questions. On the re§al side, the provision of "unrelated" benefits is unlikely to be challeng'ed by Ihe developer who enthusiastically or reluc~.antly agrees to the con- ditiens. However, it could be challenged by con- stituencies in the ciWwho are/eft out of the deal or are still intent on stopping the develop- ment altogether. To the extent the state zonin~ statute or local ordinance is murky on authori- zation for this sort of deal-making, the lawsuit may have extended legs. From a policy viewpoint, this widespread practice en§enders mixed reviews. On the one hand, the idea that ever/thing is on the robie and that parties can create a win-win outcome by expandin§ the pie of considerations, and that both sides can make a Coasean bargain (named after the Chica§o Nobel-prize-winning economist, Ronaid Cease, and i~is article, "The Problem of Social Cost"), would be applauded not only by "Gettin§ r.o '/es" enthu- siasts, but by nee-classical economists as well. On the other hand, the practice raises concerns aPout whether projects that shouid be turned down on the basis of phvsicaJ plan- ning criteria are being approved on the basis of buyoffs for selected neighborhood con- stituencies, or even for ci~wide benefits unto- lated to the proposed development's impact. Furthermore, unlike formal incentive zoning where the terms of the deal are there, for bet- ter or worse, for observers to evaluate, ne§pti- ated zoning lacks the baseline elements of a matter-of-right development from which the ne§otiat[on proceeds. Nothin§ is fixed in advance, so the to-ing and fro-lng of the negotiation becomes untethered to fixed, transparent criteria. At its worst, negotiated zoning becomes a free-for-all that undermines confidence in the entire system of iand-use regulation. EMBR;~,C]J"tG :~GC]AL ~QIJI'P! One pt the most interesting changes to zonin§ over the past ~-5 ,/ears has been the expan- sion of its purposes from traditional physical piannin§ to social equity goals. Indeed, in big cities more than suburbs, zoning has concep- tually, if not empirically, moved from "exctu- sionary" ~o "level playin§ field" to "inc[usion- ary" in its approach to those [ess well-off in society, especially with re§ard to housing. In its t92.6 Village o[ ~uclid v. Ambler Realty Company (272 U.5. 365) decision, the U.S. Supreme Court celebrated Euclid's decision to separate single-family from multi-family hous- lng, referring to apartment houses as mere parasites attempting to suck advantages from single-family neighborhoods. The suburban experience of zoning, even today, might still be characterized as one of exclusion, where zoning's use, shape, and bulk instruments are played to make development of affordable housing difficult, if not impossible. The indu- sionary efforts of today are hardly dominant, but they are increasingly found in larger cities across the country and reflect the realization that zoning, along with more direct public subsidies, nas the possibility of contri'buting to the affordaPle housin§ pot. The most celebrated social equity zoning techniques are I. inl(ag'e and indusionary zen- in§. Under these pro§rams, cities ask devel- opers to provide or pay for affordable housing and other redistribudve social benefits, nor- maily as a condition for development approval tess often as part of a purely velum ZONING PRACTICE AMERICAN pLANNING ASSOCIATION J page