1 Robert C. Ellickson & A. Dan Tarlock, Land-Use Controls (Boston: Little, Brown & Co., 1981).Google Scholar

2 Id. at xxxiv.Google Scholar

3 Id.Google Scholar

4 I do not deal at length with the large literature on deregulation of land use because it is addressed, for the most part, to the overall issues of economic efficiency, predictability, and rationality. While important, these issues approach the subject from the perspective of the aggregate capital market and resource allocation processes. My approach in this article focuses on the particular resource of community solidarity, which is particularly scarce and valuable in modern urban areas. Whether my treatment of the processes of urban zoning change as community-conserving mechanisms can usefully be viewed as a special case of more general models of efficient resource allocation is left for later discussion. The literature of land-use deregulation includes such seminal pieces as R. C. Ellickson, Alternatives to Zoning: Covenants, Nuisance Rules, and Fines as Land Use Controls, 40 U. Chi. L. Rev. (1973); Ellickson & Tarlock, supra note 1, at 547–64; id., Land Use Controls in Metropolitan Areas: The Failure of Zoning and a Proposed Alternative, 45 So. Cal. L. Rev. 335 (1972); Kmiec, Deregulating Land Use: An Alternative Free Enterprise Development System, 130 U. Pa. L. Rev. 28 (1981); Robert H. Nelson, Zoning and Property Rights: An Analysis of the American System of Land-Use Regulation (Cambridge, Mass.: MIT Press, 1977); B. Siegan, Land Use Without Zoning (Lexington, Mass.: D. C. Heath, 1972); id., Non-Zoning in Houston, 13 J.L. & Econ. 71 (1970).Google Scholar

5 S. The “interstitial” administrative powers to relax the strict requirements in occasional unique individual circumstances of hardship are often perceived to have evolved into a rather broad grant of administrative discretion to make piecemeal amendments to the zoning map and to grant variances and special uses far beyond what appears to have been anticipated in the original statutes. The political nature of the issues of land use involved in these discretionary decisions and the deeply held citizen positions on particular issues have become apparent. This realization has led to attempts to reduce this local discretion through judicial supervision, requirements that decisions be justified in terms of preexisting comprehensive plans, professionalization and the elimination of citizen boards, and the imposition of “quasi-judicial” procedural standards on administrative zoning decision making. This issue is carefully reviewed in Carol M. Rose, Planning and Dealing: Piecemeal Land Controls as a Problem of Local Legitimacy, 71 Cal. L. Rev. 837 (1983). See also the seminal article by Charles M. Haar, In Accordance with a Comprehensive Plan, 68 Harv. L. Rev. 1154 (1955); Fasano v. Washington Co. Comm., 264 Ore. 574, 507 P.2d 23 (1973); and Edith Netter, ed., Land-Use Law: Issues for the Eighties 55–112 (Washington, D.C.: Planners Press (APA), 1981).Google Scholar

6 See Steele, Eric H., Fraud, Dispute, and the Consumer, 123 U. Pa. L. Rev. 1107 (1975); Eric H. Steele & Raymond T. Nimmer, Lawyers, Clients, and Professional Regulation, 1976 A.B.F. Res. J. 919 (1976); David M. Engel & Eric H. Steele, Civil Cases and Society, 1979 A.B.F. Res. J. 295 (1979).Google Scholar

7 Hirschman, Albert O., Exit, Voice, and Loyalty (Cambridge: Harvard University Press, 1970).Google Scholar

8 Cf. Haar, supra note 4; John W. Reps, Discretionary Powers of the Board of Zoning Appeals, 20 Law & Contemp. Probs. 280 (1955); Richard F. Babcock, The Unhappy State of Zoning Administration in Illinois, 26 U. Chi. L. Rev. 509 (1959); Ronald M. Shapiro, The Zoning Variance Power-Constructive in Theory, Destructive in Practice, 29 Md. L. Rev. 1 (1969). See references in Rose, supra note 5, and Eric H. Steele, Perspectives on Urban Zoning (unpublished manuscript, 1984).Google Scholar

9 Village of Euclid v. Ambler Realty Co., 272 U.S. 365 (1926); Seymour Toll, Zoned American (New York: Grossman Publishers, 1969); John Delaphons, Land-Use Controls in the United States (Cambridge, Mass.: MIT Press, 1962); Edward M. Bassett, Zoning: The Laws, Administration, and Court Decisions During the First Twenty Years (New York: Russell Sage Foundation, 1940). Even Houston, while it technically has no zoning ordinance, has developed similar techniques of local land-use regulation. See Weaver, Clifford L. & Babcock, Richard F., City Zoning: The Once and Future Frontier 218–20 (Chicago: Planners Press (APA), 1979); Rose, supra note 5, at n.27.Google Scholar

10 Toll, supra note 9.Google Scholar

11 See Shlay, Anne B. & Rossi, Peter H., Keeping Up the Neighborhoods: Estimating Net Effects of Zoning, 46 Am. Soc. Rev. 703 (1981). See also Ronald N. Lafferty & H. E. Freeh III, Community Environment and the Market Value of Single Family Homes: The Effect of the Dispersion of Land Uses, 21 J.L. & Econ. 381 (1978), and studies cited therein.Google Scholar

12 National Land and Investment Co. v. Easttown Township Bd., 419 Pa. 504, 215 A.2d 597 (1965); Southern Burlington County NAACP v. Township of Mt. Laurel, 67 N.J. 151, 336 A.2d 713, app. dism. and cert. den. 423 U.S. 808 (1975); Note, Developments in the Law-Zoning, 91 Harv. L. Rev. 1427 (1978); Lawrence Sager, Insular Majorities Unabated: Warth v. Seldin and City of East Lake v. Forest City Enterprises, Inc., 91 Harv. L. Rev. 1373 (1978); Ira M. Heyman, Legal Assaults on Municipal Land Use Regulation, 5 Urb. Law 1 (1973); Richard F. Babcock & Fred P. Bosselman, Exclusionary Zoning: Land Use Regulation and Housing in the 1970s (New York: Praeger Publishers, 1973); Leonard Rubinowitz, Exclusionary Zoning: A Wrong in Search of a Remedy, 6 J.L. Reform 625 (1972); Lawrence Sager, Tight Little Islands: Exclusionary Zoning: Equal Protection, and the Indigent, 21 Stan. L. Rev. 767 (1969).Google Scholar

13 Fred Bosselman & David Callies, The Quiet Revolution in Land Use Control (Washington, D.C.: Council on Environmental Quality, 1971); and Carol M. Rose, Preservation and Community: New Directions in the Law of Historic Preservation, 33 Stan. L. Rev. 473 (1981).Google Scholar

14 E.g., Bosselman & Callies, supra note 13; Heyman, supra note 12; Randall W. Scott et al., eds., Management & Control of Growth (Washington, D.C.: Urban Land Institute, 1975); Robert H. Freilich & Eric O. Stuhler, eds., The Land Use Awakening: Zoning Law in the Seventies (Chicago: American Bar Association, 1981); Frank A. Rubin, Local Growth Management in Regional Housing Needs, 23 Urban Law Ann. 407 (1982); Fred Bosselman, Can the Town of Ramapo Pass a Law to Bind the Rights of the Entire World? 1 FLa. St. U.L. Rev. 234 (1973); Jerome G. Rose, Conflict Between Regionalism and Home Rule: The Ambivalence of Recent Planning Law Decisions, 31 Rutgers L. Rev. 1 (1978).Google Scholar

15 Ironically, even the towns of Ramapo, New York, and Petaluma, California, which 15 years ago caught national attention and a chapter in every land-use text for their innovative controls on new development, have removed these tight development limitations and are worrying instead about retaining and encouraging development. Golden v. Planning Board of Ramapo, 30 N.Y.2d 359, 285 N.E.2d 291, 334 N.Y.S.2d 138, app. dism. 409 U.S. 1003 (1972); and Construction Industry Assn. of Sonoma County v. City of Petaluma, 522 F.2d 897 (9th Cir. 1975), cert, denied. 424 U.S. 934 (1975). Robert Guenther, New York Community Scraps Pioneering Growth Controls, Wall Street J., Aug. 31, 1983, £ 2 at 21, col. 1.Google Scholar

16 Most U.S. zoning regulations follow the general form set out in the 1920s by then Secretary of Commerce, Herbert Hoover, in his Standard State Zoning Enabling Act (1926), itself a “New York type” ordinance modeled on the New York City ordinance of 1916 and generally considered to be the prototype of modern comprehensive city zoning. See Toll, supra note 9; Delaphons, supra note 9; Nelson, supra note 4; Norman Williams, Jr., American Land Planning Law (Chicago: Callaghan, 1974); Robert M. Anderson, American Law of Zoning (Rochester, N.Y.: Lawyers Co-operative Publishing Co., 1976); Arden H. Rathkopf, The Law of Zoning and Planning (New York: Clark Boardman Co., 1982); Emmett C. Yokley, Zoning Law and Practice (Charlottesville, Va.: Michie Co., 1978); P. J. Rohan, Zoning and Land Use Controls (New York: Matthew Bender, 1982).Google Scholar

17 Variances are granted to specific parties in interest allowing them to construct or use a particular piece of property or structure in violation of the provisions of the zoning ordinance. The ordinance sets out fairly stringent standards of hardship for the granting of variances (see appendix). Special uses are granted to allow the use of a specific property for one of a number of purposes specifically enumerated in the ordinance as not allowed as right in a particular type of zone, but permissible if the use would be consistent with the surrounding uses and not injurious to the character of the area. The standards for granting special uses are less stringent than the standard of hardship.Google Scholar

18 The primary data on which this examination of the ZBA docket and processes is based were drawn from the records of the Evanston Zoning Department. These records contained all documents submitted in connection with each zoning change and variance application, staff reports and memoranda, any third-party communications, and verbatim transcripts of all formal zoning board meetings and hearing testimony on each case. Every third zoning-change case during the period 1948–83 was selected for coding on a mostly closed-ended factual and content analysis protocol. The coding was done by the investigator and three specially trained coders. An intercoder reliability sample showed an 85% agreement between coders on judgmental content analysis items. Supplemental data were culled from indices, logs, and other summary data maintained by the zoning department and from the selective observation of case hearings and interviews with board members and participants.Google Scholar

19 University and manufacturing uses are also underrepresented, but for a different reason. Such uses would at first glance appear to be highly problematic and therefore often in issue before the ZBA. It appears, however, that these two uses have been well enough segregated into their own enclaves that they have developed without affecting other areas and therefore are relatively free from detailed regulation. This observation is confirmed by our data relating to the types of land use surrounding the sites involved in ZBA applications-industrial, manufacturing, and university land uses in ZBA applications were far less apt to be surrounded by residential land uses than was the case for other land uses.Google Scholar

20 The special use was unavailable until 1960. The pre-1960 sample (14% of the whole sample) was 99% variance applications. The post-1960 sample was 62% variances, 21% special uses, 8% both variances and special uses, and 9% other relief, typically appeals of official staff rulings, time extensions, and continuations of nonconforming uses most often involving business uses in residential areas or other nonconforming uses.Google Scholar

21 Community participation is an aggregate concept. The following table indicates the proportion of those supporting and opposing participants in each major category of community participant. While systematic information on the identities of those who participate by means of letters and petitions is not available, it appears that they fall primarily in the “Neighbors” category.Google Scholar

22 For a discussion of this use of the Somers's d measure see Kent W. Smith, Measures of Association for Contingency Tables (Evanston, 111.: Northwestern University Department of Sociology, 1976); Donald R. Ploch, Ordinal Measures of Association and the General Linear Model 343–68, esp. 350–57, in H. M. Blalock, Jr., ed., Measurement in the Social Sciences (Chicago: Aldine Publishing Co., 1974); Roland K. Hawkes, The Multivariate Analysis of Ordinal Measures, 76 Am. J. Soc. 908–26 (1971); Robert H. Somers, The Rank Analogue of Product Movement Partial Correlation and Regression, with Application for Manifold, Ordered Contingency Tables, 46 Biometrika 241–46 (1959); and id., A New Asymmetric Measure of Association for Ordinal Variables, 27 Am. Soc. Rev. 799–811 (1962).Google Scholar

23 The following tabulation shows the effects of opposition and support on ZAC outcome by type of amendment (Somers's d outcome dependent):Google Scholar

24 The following tabulation shows the proportion of ZAC cases in which support and opposition is expressed:Google Scholar

25 Babcock, Richard F., The Zoning Game 17 (Madison: University of Wisconsin Press, 1966).Google Scholar

26 ShLay & Rossi, supra note 11.Google Scholar

27 Cf. Rose, supra note 5.Google Scholar

28 Weaver & Babcock, supra note 9; Constance Perin, Everything in Its Place: Social Order and Land Use in America (Princeton, N.J.: Princeton University Press, 1977).Google Scholar

29 - U.S. S. Ct. - (1978).Google Scholar

30 See Nelson, , supra note 4.Google Scholar

31 See id.; Weaver & Babcock, supra note 9.Google Scholar

32 This distinction between “objective” and “participatory” legal processes is similar to the “autonomous” and “responsive” models of regulatory process set out by Nonet and Selznick, without reference to their developmental typology of the legal order. Phillippe Nonet & Philip Selznick, Law and Society in Transition-Toward a Responsive Law (New York: Farrar, Straus & Giroux, 1978). They wrote: Legality, understood as close accountability to rules, is the promise of autonomous law; legalism is its affliction. A focus on rules tends to narrow the range of legally relevant facts, thereby detaching legal thought from social reality. The result is legalism, a disposition to rely on legal authority to the detriment of practical problem solving. The application of rules ceases to be informed by a regard for purposes, needs, and consequences …. [L]aw … is mainly a way of overcoming the arbitrary decision making of an earlier era. It assumes that rationality is forever precarious and must be vigilantly guarded against the subversive intrusions of nepotism, corruption, and political manipulation.Google Scholar

33 See Steele, , supra note 8; Comment, 48 Nw. U.L. Rev. 470 (1953); Note, 103 U. Pa. L. Rev. 516 (1955); Comment, 50 Cal. L. Rev. 101 (1962); Jesse Dukeminier, Jr., & Clyde L. Stapleton, Zoning Board of Adjustments: A Case Study in Misrule, 50 Ky. L.J. 273 (1962); Charles Haar, Land Use Planning 295–96 (Boston: Little, Brown & Co., 1971).Google Scholar

34 E.g., Walter Blucher, Is Zoning Wagging the Dog? Planning 96 (1955); Babcock, supra note 25; Weaver & Babcock, supra note 9; Lawrence A. Sullivan, Flexibility and the Role of Law in American Zoning Administration, in Charles Haar, ed., Land and Law 129–61 (Cambridge: Harvard University Press & MIT Press, 1964); Reps, supra note 8; John W. Reps, Requiem for Zoning, reprinted from Planning Mag. (1964) in David Listokin, ed., Land Use Control; Present Problems and Future Reform (New Brunswick, N.J.: Center for Urban Policy Research, Rutgers University, 1974); Jan Z. Kras-nowieki, Abolish Zoning, 31 Syracuse L. Rev. 719 (1980); Babcock, supra note 8; Note, 74 Harv. L. Rev. 1396 (1961).Google Scholar

35 See Haar, , supra note 5; Fasano v. Washington Co. Comm., 507 P.2d 23 (1973); Netter, supra note 5, and references in Rose, supra note 5, and Steele, supra note 8.Google Scholar

36 See supra note 32.Google Scholar

37 Weaver & Babcock, supra note 9, at 272.Google Scholar

38 Shapiro, supra note 8.Google Scholar

39 Weaver & Babcock, supra note 9, at 269, 271.Google Scholar

40 The functions of rules in the civil justice system are discussed in Engel & Steele, supra note 6; Eric H. Steele, Morality, Legality, and Dispute Processing (Review Essay), 1984 A.B.F. Res. J. (1984); and Marc Galanter, Justice in Many Rooms, 19 J. Legal Pluralism & Unofficial Law (1981); id. Reading the Landscape of Disputes, 31 UCLA L. Rev. 4 (1983).Google Scholar

41 See Steele, Eric H., The Historical Context of Small Claims Courts, 1981 A.B.F. Res. J. 296 (1981); James W. Davis & Kenneth M. Dolbeare, Little Groups of Neighbors: The Selective Service System (Chicago: Markham Publishing Co., 1968); Frank L. Politano, Community Participation and Reform of the Zoning Process in New York City, 9 Colum. J.L. & Soc. Probs. 575 (1973); Jerold S. Auerback, Justice Without Law? (New York: Oxford University Press, 1983); and Steele, supra note 40, at 189.Google Scholar

42 Weaver & Babcock, supra note 9, at 260ff.; see also Perin, supra note 28, at 163–209.Google Scholar

43 Babcock, Richard F., The Chaos of Zoning Administration, 12 Zoning Dig. 1 (1960).Google Scholar

44 Cf. Rose, supra note 5.Google Scholar

45 S. J. Makielski, Jr., The Politics of Zoning (New York: Columbia University Press, 1966); Babcock, supra note 25.Google Scholar

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47 Cf. Vilhelm Aubert, Competition and Dissensus: Two Types of Conflict and of Conflict Resolution, 7 J. Conflict Resolution 26, 27–29 (1963).Google Scholar

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49 Christie, Nils, Conflicts as Property, 17 Brit. J. Criminology 1 (1977).Google Scholar

50 See Suttles, Gerald D., The Social Construction of Communities (Chicago: University of Chicago Press, 1972); Albert Hunter, Symbolic Communities (Chicago: University of Chicago Press, 1974); Kai T. Erikson, Wayward Puritans (New York: John Wiley & Sons, 1966).Google Scholar

51 See Appleyard, Donald, Place and Nonplace-the New Search for Roots, in Judith I. de Neuf-ville, ed., The Land Use Policy Debate in the United States (New York: Plenum Press, 1981); id., Conceptions of the Environment, in de Neufville, ed., supra; Oscar Newman, Community of Interest (Garden City, NY.: Anchor Press/Doubleday, 1980); Kevin Lynch, The Image of the City (Cambridge, Mass.: MIT Press, 1960); Herbert Gans, The Urban Villagers (New York: Free Press, 1962).Google Scholar

52 Cf. Rose, supra note 13.Google Scholar

53 The travelers' dismissal, “It's a nice place to visit, but I wouldn't want to live there,” or its obverse, “It's a nice place to live, but I wouldn't want to visit,” allude to just such ideals as shared values, cohesion, solidarity, and sense of belonging, rootedness, and participation.Google Scholar

54 See Suttles, , supra note 50; Hunter, supra note 50; Perin, supra note 28; all sources cited in supra note 51; Philip Olson, Urban Neighborhood Research, 17 Urban Affs. Q. 491 (1982).Google Scholar

55 See Perin, , supra note 28; Auerbach, supra note 41; and Richard Hofstadter, The Age of Reform (New York: Alfred A. Knopf, 1955).Google Scholar

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58 Cf. George C. Galster & Garry W. Hesser, The Social Neighborhood-An Unspecified Factor in Homeowner Maintenance, 18 Urban Affs. Q. 235 (1982).Google Scholar

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61 Others have commented on the particular strength of participatory zoning in family neighborhoods. For instance, one zoning lawyer wrote: “Many people do not understand the necessity for having any type of zoning other than single-family residential, particularly in suburban areas, where it is common to hear people say that the only reason they moved there was to get away from the city.” George A. Staples, Jr., Zoning for the Real World 50 (Proceedings of the Institute on Planning, Zoning, and Eminent Domain, Southwestern Legal Foundation, 1983).Google Scholar

62 Evanston Zoning Ordinance, adopted Dec. 4, 1978, as amended £ 6–12-7 (A).Google Scholar

63 Evanston Zoning Ordinance, adopted Dec. 4, 1978, as amended £ 6–12-7 (C) 1–2.Google Scholar

64 See Christie, , supra note 49, and Steele, supra note 8.Google Scholar