Zoning as Taxidermy: Neighborhood Conservation Districts and the Regulation of Aesthetics

Abstract

Over the last thirty years, municipalities across the country have embraced neighborhood conservation districts, regulations that impose design standards at the neighborhood level. Despite their adoption in thirty-five states, in municipalities from Boise to Cambridge, neighborhood conservation districts have evaded critical analysis by legal scholars. By regulating features such as architectural style, roof angle, and maximum eave overhang, conservation districts purport to protect "neighborhood character" or "cultural stability." Implicit in these regulations is the unsupported assumption that the essential feature of a neighborhood's character is its architectural design at a single point in time. The unfortunate result is zoning as taxidermy, rather than land-use planning that permits places to evolve to meet changing needs and preferences. Conservation districts freeze places in time, exclude would-be residents from desirable neighborhoods, and threaten to increase the cost of housing in those neighborhoods and the cities in which they are located. Urban culture is defined by dynamism, vitality, and an ability to adapt to and accommodate population and market shifts. Conservation district regulations should be crafted in that same spirit, to preserve cities and suburbs as places amenable to change. They should not only permit but also promote investment and redevelopment, particularly redevelopment of neighborhoods that, because they are close to public amenities, are well suited to dense development. This Article urges state legislators to cabin local authority to enact conservation districts. Revisions to state zoning-enabling legislation can ensure that these regulations (i) are not exclusionary, (ii) are responsive to changing market dynamics and evolving consumer preferences, and (iii) do not artificially inflate housing prices.