Flexibility in US Zoning: A European Perspective

In this paper comparisons of Dutch and British planning are drawn on to ask where to draw the line between flexibility and opportunism, using US zoning as an example. The characteristic of zoning is that it works with statements of intent which become effective only in guiding regulatory measures. US zoning is then analysed against the backcloth of legal rights in landed property and the land regime. It is found to be inflexible in theory. But, even within the standard model of zoning, there is room for variances and for rezoning. So there are limited areas of discretion, and some of the burden of preparing of decisions is shifted onto applicants. Approaches introduced since have in common that definite decisions are delayed, and that the locus of decision shifts still further towards developers. Thus two perspectives on development are recognised: the broader one of the land regime embodied in the zoning ordinance, and a specific one taking the particular plot of land and its potential uses as its starting point. The distinction between a flexible and an opportunistic decision cannot be whether preconceived plans are departed from. That is inevitable. Rather, that distinction has to do with how these two perspectives are related to each other. Opportunistic decisions fail to attend to wider implications of departures. They thereby create uncertainty over and above that which already exists. Flexible decisions update plans where these have become outdated. They form an essential element in a dynamic planning system.