Legalism in Planning

I’ve seen several projects fall through after applicants (usually part-time developers or small business owners) realized how much red tape and bureaucracy they were going to have to wade through to get their approvals. For anyone that’s not familiar with land development, the regulatory review process is quite onerous. It’s designed for career engineering and planning firms that can get the many requirements down to a science and crank out applications and plans with factory-like regularity. If you’re just some guy, and you want to DIY yourself through a Planning Commission or Board of Zoning Appeals meeting, I’d ask you to think twice. It’s going to be quite frustrating.

The question on my mind is, does it have to be this way? And why does it seem to twist us bureaucrats into people so wrapped up in our regulations that we almost come to relish telling people how much hell they’ll have to endure to get their approval?

I think the root of the problem is what I’m calling legalism. It’s quite a common idea in the US and in the Anglo-Saxon common law tradition that we’re imperceptibly immersed in. Briefly, it’s the idea that the law is the best arbiter of right and wrong. You may be thinking, “But then do you want anarchy, Dustin? The law is the only thing standing between us and barbarism! Legal supremacy is the only way to ensure a fair and predictable society.”

I’m no advocate for lawlessness, but the problem of legalism lies in its unexamined assumptions. The foundation of this country is in the Enlightenment, and in the modern idea of the rational subject being the measure of right and wrong. To this end, humans have framed good and fair laws which will apply to all. However, the problem with legalism is that it enshrines the rationality of a certain group of people from a certain time period. These people were no more God than you or I, and so the laws they framed were not perfect and did not foresee and adequately take into account every possibility.

Think about it: laws are framed for the good of people. When these laws, in their short-sightedness, start to work to the detriment of people, they should be discarded. Now, I’m not saying we should start ignoring laws. Read on as I explain.

In contrast to legalism is intuition. Legalism ascends when intuition is no longer trusted. Legalism is fear, intuition is trust. In another large Tennessee city in which I’ve done planning, a decision was made to (implicitly) lay aside the letter of zoning law in favor of the spirit, in order to induce economic revitalization. If the spirit of any zoning law is to facilitate the health, wealth, safety, morals, etc., etc., of the people, then perhaps any one law, in a particular circumstance, may be set aside to further the overarching ends of the the people in setting up zoning to begin with. This is intuition. It’s messy, but it’s visionary, adaptive, malleable.

What if zoning were reimagined in an “intuitive” framework? As in, latitude were given to applicants, planners, and zoning boards to meet the spirit, if not the letter, of land use law. But, you say, that’s asking for corruption and preferential treatment to creep in! Tell me that doesn’t happen already. The naivety is in thinking we could ever prevent it with mere laws.

The “vision” that inspired my town’s zoning ordinance is a Euclidean menace born of the hyper-suburbanism of the 1970s which would restrict density, widen roads and setbacks, and smother commerce. Indeed, this frankenstein monster of a document tries to do all these things. Under an intuitive framework, though, this can be blunted. I mean, really: this zoning ordinance is at cross purposes with every goal of 21st century planning. If scrapping it is not possible at the moment, what else can we do but reimagine what it means to apply it? Perhaps in doing so we will better live up to the motto inscribed upon the lintel of our historic courthouse: “Salus Populi est Suprema Lex”: “Let the welfare of the people be the supreme law.”

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