Zoning is the government telling you what
you can, and what you cannot, do on your land.
The courts decided long ago that the Constitution
grants government this power. As with any
such government power, however, it cannot
be exercised arbitrarily and must be exercised
in a fashion rationally related to its purpose.
Zoning has generally been used to keep apart
uses of land that are incompatible with each
other. Keeping away from residences land uses
that generate lots of noise or pollution is
one obvious example. More commonly today,
zoning is used to keep away from residences
any commercial use, and to segregate high-density
uses (like apartments) from single-family
residences.
It’s probably safe to say that most
people think these basic zoning practices
are beneficial to society. Sometimes, however,
they can have unintended consequences. Some
commentators have suggested that the now-widespread
practice of segregating low-density residential
areas from shopping and other commercial uses
has increased dependence on automobile transportation
and correspondingly decreased physical activity,
with negative societal results in the form
of poor physical fitness and increased rates
of obesity (among other things).
What’s the solution to those problems?
Why, make people live in conditions that discourage
automobile use and encourage walking, say
the commentators. Where do those conditions
exist? They exist in cities that have high
densities, of course. One big problem with
this solution is that it isn’t what many
people want. Many, perhaps most, people who
live in suburban areas, where low-density
land uses predominate, live there because
that is what they want.
It has occurred to me that another possible
consequence of forcing businesses to locate
far away from residences is that it could
contribute to the incidence of drunk driving,
since most neighborhoods don’t have a
corner bar or package store within walking
distance anymore. Funny that none of the commentators
seem to be suggesting the use of zoning (or
other measures) to encourage the return of
the corner bar and package store.
The commentators’ proposed solution
to the consequences of low-density land use
is an example of what I call the concept of
behavioral zoning. It is founded on the notion
that land use should be regulated not (or
not only) for the purpose of keeping incompatible
uses apart, but for the purpose of encouraging
or discouraging certain behaviors. As you
might guess, I think this is a bad idea.
Another example of a commentator promoting
the concept of behavioral zoning came to my
attention recently in an article about the
“obesity epidemic.” This commentator
lays the blame for the “epidemic”
at the feet of the fast-food industry. His
solution? Drastically limit the number and
location of fast-food outlets through the
use of zoning regulations.
Now, there are legitimate reasons for regulating
the location of fast-food outlets. Most people
would not want one next to their house because
of potential traffic, noise, litter (which
as far as I am concerned is the biggest negative
impact of these businesses), and bright lights
at night. Those are concerns that relate to
the incompatibility of the use, however. Using
zoning to limit the use as a way to discourage
behaviors associated with it is an entirely
different concept, a concept that in my view
is disconnected from the fundamental purpose
of zoning. It is, I think, a misuse of zoning.
I haven’t seen any indications that
these commentators’ ideas are being widely
adopted, but the suggestion that behavioral
zoning is a solution to certain societal problems
does seem to be gaining in frequency. The
more serious discussion that should be occurring,
and which is only obscured by the notion of
behavioral zoning, is whether zoning as it
has evolved, with rigid segregation of uses,
is producing the best living conditions for
everyone. The question that should be asked
the next time Walgreens wants to build a store
on the corner is not whether it should be
within walking distance for our own good,
but whether or not at least some of us want
a Walgreens within walking distance.
