EMPOWER THE NEIGHBORHOOD AND SAVE THE CITY; WHY COURTS SHOULD PERMIT NEIGHBORHOOD CONTROL OF ZONING

Kenneth A. Stahl, Chapman University

Abstract

Whether cities should delegate zoning authority to neighborhood groups is one of the most hotly contested issues in municipal politics, yet it is also essentially a moot point. Since a bizarre series of Supreme Court cases in the early twentieth century, it has been largely settled that cities may not constitutionally delegate the zoning power to sub-municipal groups, at least where the power is delegated specifically to landowners in a certain proximity to a proposed land use change.

This article argues that courts have erred in prohibiting cities from devolving zoning control to proximate landowners, a scheme I designate a “neighborhood zoning district.” Courts, as well as scholars, have failed to recognize that the neighborhood zoning district is conceptually identical to a popular municipal financing device that courts have routinely upheld: the “special assessment district,” known in its modern incarnation as a “business improvement district” (BID). Under this scheme, a municipality assesses a mandatory charge on all landowners within a designated territorial area to finance services or improvements benefitting that area, provided that a percentage of landowners in the district authorizes the charge. As I argue, both the neighborhood zoning district and the special assessment district enable large, diverse cities to capture some of the governance advantages of small, homogenous suburbs by providing landowners with the direct ability to manage local externalities. Courts and commentators, however, erroneously treat these two devices as though they are entirely distinct. The practical result has been that cities increasingly rely on BIDs as a catch-all solution to all urban problems, while neighborhood groups seethe over their inability to control their own zoning. The article concludes that courts should broadly defer to municipal delegations of power to sublocal groups, so that cities can work out their own strategy for surviving in an era of intense inter-local competition.