Identity Zoning Part 1 
By Martin Harris

This reading audience being, I’d guess, composed of sophisticated practitioners of contemporary political vernacular phraseology, there’s no need for me to waste any of my allotted column-inches on an explanation of "identity politics". Nor, I’d guess, do I need to describe how identity politics leads inexorably to identity jurisprudence. More than a century ago, French author Anatole France (fake name) wrote "Le Lys Rouge", 1894, which contains this well-known quote: "The law, in its majestic equality, forbids the rich as well as the poor from sleeping under bridges…" sarcastically illustrating through his Communist world-view, the Leftist support for the idea that members of different groups are entitled to different treatment under law and regulation. Lady Justice now peeks around her blindfold to determine who, appearing before her, should be treated more gently or more harshly, depending on their group identity, for the same crime. Or, in modern Vermont planning and zoning situations, the same permit application. So the new logical sequence is 1. identity politics, 2. identity jurisprudence, and 3. identity zoning.  Just as, under the Anatole France view of things, the rich are to be judged more rigorously for stealing than the poor, so, under contemporary P&Z doctrine in many Vermont towns, corporate permit applicants are to be treated more rigorously than equally-for-profit mom-n-pop applicants, and both such identity groups are to be treated more rigorously than government or non-profit applicants, which explains why Middlebury has granted multiple variances for various non-profit housing applicants, and why the Addison County Shire Town raised no environmental objection to the construction of its own exemplary county-courthouse-in-a-swamp, a bit of regulatory empathy which, I’d guess, wouldn’t have been accorded a for-profit private developer. Selective empathy is a big part of identity politics, jurisprudence, or zoning.

Sometimes the empathy is negative, as exemplified by WalMart in St.Albans, a 20-year P&Z odyssey which the corporation has stuck with to the (almost) end; or Home Depot in Montpelier, where the corporation fairly quickly decided to exit from an unpredictable conditions-laden not-by-the-book permitting process. Most recently, corporate applicants in Ferrisburgh (fast-food/fuel-stop/convenience store) and Middlebury (first, high-end coffee and now office supplies) have been the targets of negative empathy expressed through identity zoning, In the latter instance, both withdrew once they realized what unpredictable permit conditions they were facing. Which, of course, is what the p&z folks, reflecting majority anti-corporate-identity-group community sentiment, wanted.  It wouldn’t have been seemly to have denied the application for overtly-stated identity-group reasons, just as it wasn’t seemly for the next Supreme Court Justrix (a little Latin suffix lingo there) to have overtly declared Hispanic females juridically superior to white males, a policy statement which had to be "walked back from" (a little DC new-speak lingo, there) to keep the preference doctrine unspoken, invisible, but unchanged.

I’d guess that it’s the desire of folks who enjoy occupying p&z board seats so as to exercise their superior discretion (in the Progressive model, the brighter have the obligation to govern the dumber for their own good, what Rudyard Kipling called "the white man’s burden") by dealing with permit applications on a case-by-case basis, providing positive or negative regulatory empathy as members of various identity groups appear before them. That theory would explain why "conditional use" has acquired such increased popularity amongst planners and zoners in recent decades, and the regulatory process has become Progressively (pun intended) less transparent and predictable over the same time span.

It would likewise explain why p&z folks who, decades ago, enthused theoretically over performance-standards zoning, have since become increasingly hostile to the concept. After all, a regulatory model which establishes quantitative measures for all the predictable impacts and aspects of development in various zones –traffic, lighting, lot size, building footprint, noise, smoke, utility requirements, service impacts, and so on—would transparently and predictably approve any proposal which met the printed quantitative and qualitative standards and disapprove one which didn’t; the opportunity for the p&z folks to exercise discretionary identity zoning would disappear because, of course, they wouldn’t have the courage to list, in writing, the favored or dis-favored identity groups deserving of positive or negative empathy which might appear before them with a permit request.

Martin Harris is a former Chairman of Citizens for Property Rights