By Anika Singh Lemar, Brookings, May 4, 2022
“[A]s-of-right approvals and public participation are not mutually exclusive. [They] co-exist quite comfortably in many areas of administrative law. This piece offers suggestions for a more equitable and effective approach to public participation in the zoning sphere.
“The public participation process tied to zoning approvals has three major shortfalls: 1) it discounts the value of objective information and technical expertise in favor of subjective opinions; 2) it prioritizes speakers who are unrepresentative of the whole community; and 3) it has few mechanisms for addressing misinformation. A better land development process should seek to address all three of these problems.
“[Because] local officials routinely ascribe legitimacy to wealth and its proxies — longtime residency and homeownership — [t]he resulting process prioritizes the voices of self-interested neighbors and ignores both experts and those who do not benefit from the inflated housing prices that come with constrained supply. It is destined, if not designed, to perpetuate the current housing shortage and affordability crisis.
“Public participation ought to inform generally applicable zoning regulations, as is the case for the child care licensing process. … [and] not play a role in applying those rules to individual development proposals.
“Skeptics might point out that individual proposals attract more participation than planning processes do. That is a problem created by the current system: because so many decisions are made at the development approvals stage, there is little incentive to participate in the planning process. Consequently, fewer people participate in planning. Those who do are undermined by later participants in the development approvals process.
“Fixing broken public participation processes is a small but essential piece of fixing our broken zoning laws.”
Anika Singh Lemar is a Clinical Professor of Law at Yale Law School, where she teaches the Community and Economic Development clinic. She is editor-in-chief of the American Bar Association’s Journal of Affordable Housing & Community Development Law. Lemar holds a JD from New York University School of Law and a BA in ethics, politics, and economics from Yale University.
Read the full article here. (~4 min.)