Heresthetics and Happenstance: Intentional and Unintentional Exclusionary Impacts of the Zoning Decision-making Process

Abstract

This paper examines political and legal justifications for zoning and other land-use regulations that have exclusionary impacts. The paper argues that much exclusionary regulation is justified (and rationalised) by arguments that divert attention from the undesired incidence upon the poor and minorities by referring to other values (such as environmental protection, controlling urban sprawl, relieving traffic congestion, historical preservation and other 'good planning principles'). Sometimes this manipulation is deliberate and may be thought of as an example of the art of 'heresthetics'. At other times, this form of argument may be more coincidental (i.e. a 'happenstance'). Rationales for exclusionary zoning may be offered in good faith by policy-makers who are acting out of personal convictions or in response to the pressure from various political interests. Jurisdictions with homogeneous and small constituencies are conjectured to be more exclusionary in intent and will resort to heresthetics to justify zoning that redistributes wealth away from developers and low-income families and towards current property-owners. Jurisdictions with diverse and large populations are suggested to be less exclusionary in general, but may become more exclusionary and may resort to multiple, complicated rationales when their political environments are complex. Not only may the rationales become complex, but the decision-making process may become complicated as well, with multiple criteria under consideration at different levels of governmental organisation. This complexity may increase regulatory delay and offer greater numbers of opportunities for intervention by development opponents in administrative, legislative and judicial arenas. The likelihood of manipulation of any regulatory regime suggests that exclusion may never be achieved through a reform of zoning. Instead, more demand-oriented efforts to increase housing opportunities are recommended.

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