Zoning At the Limit

• In Event: How State and Local Regulation Shapes Housing Density, Resilience, and Carbon Outcomes

Abstract

Localities regulate what gets built and where. Zoning, defined as parcel-level land use regulation, remains the dominant tool, which over decades has changed in form but not function. Virginia’s zoning is subordinate on paper to state law, but in practice answerable to no framework holding it accountable to regional or statewide policy goals. Can zoning carry the policy burdens of coordinating housing production with regional need, managing energy infrastructure at grid scale, and advancing decarbonization goals? Using primary data from three years of qualitative case study research (including interviews, site visits, and zoning and planning document analysis) across nine Virginia localities (six rural and three urban jurisdictions), and analysis of court decisions and legislative records, this paper argues that it cannot. The reasons are structural. Virginia enacted the Virginia Clean Economy Act in 2020, committing to a carbon-neutral electricity economy by 2050. Virginia now hosts the world’s largest concentration of data centers, whose aggregate energy demand threatens the state’s ability to meet its own renewable energy targets. Housing production deficits compound the challenge. The state is demanding that its land use system carry obligations its legal structure was never designed to hold.
  Virginia presents a critical case of how twentieth century regulation collides with twenty-first century policy demands: Virginia’s localities adopt comprehensive plans but zone without any consistency requirement binding zoning to those plans. There is no state administrative framework for ensuring local land use regulations meet statewide policy obligations, or meaningful enforcement of state policy demands above the level of episodic legislative intervention. Zoning’s primary accountability mechanism, litigation, is structurally unsuited to evaluate whether zoning decisions are consistent with statewide, regional, or even local policy obligations. Courts ask whether a decision was arbitrary or an affront to the constitution. They cannot ask whether a permitting denial exacerbates a regional housing shortage or undermines a state renewable energy commitment.
   The data shows zoning’s three structural failures. First, non-binding comprehensive planning produces the parcel-by-parcel dealmaking that prior scholarship has identified, but zoning decisions are also not bound to stated local policy commitments. Second, even binding local-level planning would not resolve policy problems whose scale exceeds jurisdictional boundaries, such as housing demand, data center energy demand, renewable energy deployment, and carbon sequestration. Third, zoning’s structure cannot account for multiple, potentially competing, policy obligations within a single jurisdiction: Housing needs, energy demands, environmental justice, and agricultural preservation cannot simultaneously be addressed through a discretionary zoning decision that privileges the most resourced local interest and answers to judicial review that asks whether the decision was reasonable, not whether it served any policy objective.
  The findings engage several scholarly positions, confirming prior diagnoses that non-binding planning produces parochial pathologies but also showing that binding zoning to local planning is necessary but likely insufficient. Zoning, unsubordinated to both local planning and a state administrative framework, is ill-suited to deploying housing or climate policy. These findings point toward a need for a state administrative planning framework, a system most states currently lack.

Author

• Moira Kathleen O'Neill, University of California, College of the Law, San Francisco
  Presenting Author