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The Evolution of Zoning Since the 1980s

The Persistence of Localism

William A. Fischel

November 2011, English

This paper, by William A. Fischel, examines three broad themes in the evolution of zoning. The first theme is the persistence of localism in zoning despite numerous top down attempts to reform zoning in the past three decades, including the affordable housing movement, school-finance-equalization requirements, the environmental justice movement, “smart growth” initiatives, and regulatory takings litigation. Most state reform efforts have made nary a dent in local zoning. A few exceptional federal reform efforts, such as the Fair Housing Act and the Religious Land Use and Institutionalized Persons Act, are exceptions, but even their effects on local zones have been modest.

Fischel argues that the chief consequence of all the reforms, taken together, has been to make local zoning more restrictive. The chapter’s second theme is a more personal reflection on how the author’s views of zoning have changed over the past quarter century, during which he has come to view zoning increasingly as a critical part of local government, and local government as an essential part of a federal system. His third and final theme is a “gingerly advanced” proposition that the evolution of zoning is comparable to that of the common law and thus deserves more serious attention from scholars than it has received.

This paper was presented at the Lincoln Institute’s conference entitled “Evolution of Property Rights Related to Land and Natural Resources” in 2010 and is Chapter 9 of the book Property in Land and Other Resources, edited by Daniel H. Cole and Elinor Ostrom.