AMERICAN WAY OF ZONING

AMERICAN WAY OF ZONING

A ROAD WELL TRAVELEDZoning/Land Use Regulation

Developmental History

Formation period – inception to 1900Comprehensive nuisance controls

“Let Each Use His Own So As Not To Injure Others”Private and Public Nuisances

Nuisance Concepts

Unreasonable interference with a property rightNon-Trespassory InvasionNuisance Per Se – At all times and placesNuisance Per Accidens – Times and Location

Nuisance Regulations

Not necessary to show neglect or reckless useSuitability of the use to the character of the neighborhoodA person may not come to the nuisanceRemedy is abatement or injunction

Conceptual Period 1900 - 1926

Developing formation of the police powerConcurrent movements – housing, pure food and drug, parks, good government, and City BeautifulFormation of the American Institute of Planners and Bassett’s visits to EuropeThe discovery of Swiss ‘Zoning’

New York City - 1916

First comprehensive zoning ordinance adopted

Zoning shapes the city. Through zoning, a city regulates building size, population density and the way land is used. Zoning recognizes the changing demographic and economic conditions of the city and is a key tool for carrying out planning policy. New York City enacted the nation's first comprehensive zoning resolution in 1916

Nature of the NYC Ordinance

HousingCommerceIndustry

Heavy Manufacturing

PyramidicalCumulative

NYC Ordinance Based Legislation

Enabling LegislationThe Players

Planning CommissionGoverning BodyBZA or Board of AdjustmentThe Comprehensive PlanThe Zoning Text and Map

Purpose of the Ordinance

To divide the community into use zones and intensity districtsTo establish the district regulationsCreate the enforcement powersCreate the terms of art and definitionsCreate the supplemental regulations governing the operation of the ordinance

The Original Map

The Interim 1916 - 1924

Zoning in America is a revolutionary step in the face of unbridled and unfettered use of private propertyHowever, there is no serious appellate court test of the constitutionality of this instrument

Adoption Spreads Rapidly

The rush to adopt state legislation (Kansas in 1921) is fueled by the efforts of the various state chambers of commerce, leagues of municipalities and key planners in major cities.Within 6 years after the NYC ordinance, at least 800 American towns and cities adopt zoning as a land use control tool.

The Opponents

Rapid adoption does not escape the notice of many organized lobby groupsNotable – The National Realty Association and the Homebuilders AssociationThe Stage is set in Euclid, Ohio

Zones

Regulations

Districts

Use Restrictions

Village of Euclid, Ohio

Euclid, in 1922, is a small town – a suburb of Cleveland OhioSummary of facts:Ambler owned property in Village of Euclid that it intended to sell for industrial purposes. A new zoning ordinance (1922) in Euclid, however, prevented industrial uses on significant portions of the property, only allowing development that commanded a considerably lower sale price than Ambler expected.

Ambler Realty v Euclid

What is the plaintiff's complaint?Zoning that excludes industrial uses in a growing industrial corridor reduces the value of the land and constitutes a taking. In addition, zoning in general could significantly disturb the metropolitan real estate market by thwarting natural market forces.What is the basis for the plaintiff's legal claim?14th Amendment to the U.S. Constitution guarantees that liberty and property cannot be taken without due process of law and payment of just compensation. Claim is that the zoning ordinance violates this amendment. (This is a question of substantive due process, rather than procedural due process.)

District and Ohio Supreme Court

The district court (Ohio) finds for the Village of Euclid. The Supreme Court of Ohio upholds the district court decision finding that the use of zoning based on police power objectives is a constitutionally permissible action

Federal District Court

Ambler Realty jumps jurisdictions and files and parallel suit in U.S. District Court under federal questions.Judge Westerhaven finds an equal protection issue and rules for Ambler RealtyThe controversy is now set for the the U.S. Supreme Court

U.S. Supreme Court

Supreme Court reverses lower court's decision that Euclid's zoning ordinance was unconstitutional. It decides that the municipality can use its police power to enforce zoning ordinances that are established to ensure the public good. It determines that industry can be excluded from residential areas, even in a growing industrial village. It also determines that even retail trades and apartment buildings can reasonably be excluded from single-family areas in order to preserve an order, safety, and preferred character. It notes that the value lost on the land in question is irrelevant.

Sutherland’s Decision

A 5-4 vote of the U.S. Supreme CourtBased on solid studies and a planValue of property is speculative – a mere diminishment is not a takingProtects injury to the residential public

Review of Constitution Basis

The Police Power – The power reserved to the states to protect the public health, safety and welfareThe 5th Amendment - “nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation”

Applicable to the States

The 14th Amendment - No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

In Simple Terms

The government must not take private property for a public purposeDue process of law is required to deprive anyone of a property rightEqual protection requires that people must be treated the same unless there is a compelling reason for the difference

Taking

A “taking” is a touching or a physical invasion of property.A regulatory taking occurs when the governmental restriction or burden on property is so great that in renders the property valueless or practically valueless

Due Process

Due ProcessProcedural – Related to fairness and equity of treatment. In other words “reasonable”

Substantive – Relates to the very substance and spirit of the law. It goes to the fundamental purpose of the legislation

A Break in Subject

Private v Public Regulation

Simple put, public land use regulation is only a part of the burden placed on the use of private property

A simpler way is to do it to ourselves

Why Private Regulation

Empowers the market – guarantee of useful ownershipProtect sellers from buyers and sellers from buyersSwift and merciless enforcementAvoids governmental entanglement

Private Regulation – Fee or Contact

Private Regulation as Ownership

In this mode, an instrument is created to run with the title to property giving adjacent owners (appurtenant) or remote owners a right on the land of another (in gross)

By Contract – Its Elements

Mutual Agreement – Free informed consentOffer and Acceptance – expression of mutual agreement, offer must be identical to substanceConsideration – of valueObject – purpose must be lawful/validTime – specifies the framework for duties

Contractual Instruments

Servitudes Negative – To refrain from a specified actionPositive – An affirmative duty to perform some actEquitable servitudes – Benefit and burden is reciprocal

Covenants – Deed Restrictions

A contractual agreement to restrict the use and enjoyment of propertyCovenants, as a contract, must run for specified periods of timeMethod of amendment or repealMust serve a substantial purpose and not violate a protected constitutional right

Covenant Examples

Must have a two car garageAll building plans approved by developerNo business in homesNo external color changeNo metal roofsPickup trucks must be screenedFences constructed from 1st quality wood

Public – Private Relationship

First, you can’t fight City Hall. Our regulations take precedence over private when ours are more restrictiveSecond, the government will not enforce or honor private regulations between two partiesThird, hell has no fury like a civil suit between two property owners

Back to the Zoning Ordinance

Terminology

Builders acre – ¾ lots per acre

An Acre = 43,560 sq feet

Building Envelope or Footprint

Preliminary Preparation

Authority – Enabling LegislationLegislation specifies the exact procedure and elements that must be prepared prior to the adoption of the ordinanceHearing and adoption procedureAmendment procedure – who may initiate change

Introduction

Purpose and statement of goalsSavings clauseInterpretationDefinitions - sample

Motel (Hotel) is any building containing six or more guest rooms intended or designed to be used, or which are used, rented or hired out to be occupied, or which are occupied for sleeping purposes by guests.

District Scheme - Model

At a minimum – each regular district contains the following:

Permitted UsesUses by condition or special useSpecial restrictionsBulk and dimensionParking and spatial requirementsAuthorized variances

District Models

Regular districts are nearly always created in a pryamidical fashion based on intensity of use as measured by the bulk and number of DU’s per acre or lot area – and by the amount or type of mixing permitted

The Residential Districts

Large lot districtsRange 1 du/80 acres to 3 Ac./du or slightly smallerRationale ranges from protecting the “haves” from the “have-nots” to resource protection and open space. Serious legal problems are usual in expanding areas without sufficient justification

Residential - Continued

The low density districts Generally designated from 2 to 8 du’s per acreThe standard is 3 units per gross acreDesigned to accommodate the bulk of the residential populationOnly local residential streets necessary for service

Manufactured Homes

One of the great battles of American zoning

Its Changing Face

Compliments of Steve Gibson


Medium density districtsGenerally ranges from 8 to 25 du’s per gross acreBasically designed to accommodate the light service, garden style or walk-up multi family unit with a general limitation of 3 or 4 living storiesTransportation services ranges for residential streets to collectors


High density residentialRanges from 26 to 240 units per gross acre depending on floor area ratios and open space requirementsUsed to transition from residential to commercial districtsRequires minor to major collectors

Commercial Districts

Center districtsA traditional district designed to service the CBDGenerally limited to public service, personal services, retail and F.I.R.M. services (finance, insurance, real estate and marketingRegulated by footprint, FAR, and total square feet

Commercial - Continued

Neighborhood serviceEssentially designed per group of neighborhoods to accommodate the daily needs of residentsGenerally controlled by selling area and square ft. limitationsHeavy limitation on outside storageRequires minor to major collectors


Highway ServiceDesigned to accommodate the automobile and to direct traffic to major collectors and arterialsThe American dumping groundDesigned for high visibility and and large outdoor storage capabilityCommonly used as transition for CBD to neighborhood commercial


Regional Scale – ClusterDesigned to accommodate those uses that are considered to be at a “mega” scaleDesignation is by sq. ft. and traffic count usually starting at 15,000 vpdRequires major arterials

Commercial - Service

Office – Institutional Districts Designed as the basic “working districts of the community”Retail and mixed use is typical to serve the working areaHeavy use as transition district from light to heavy commercial areas or as buffer to neighborhoods


Heavy ServiceDesigned for the commercial and semi-commercial usesUse pattern is determined by the type and amount of externalities presentOften linked to special transportation needs (warehousing) and serve as a transition to manufacturing

Manufacturing – Fab.

Light and Park ManufacturingDesigned to bring selected “working areas” to park-like settingsUses are selected by the amount of externalities and ability to contain their activities to local lot areasDesign applicationsServe as transition to general manufacturing

Manufacturing - Continued

General ManufacturingThe “workhorse” of the community zones.The basic manufacturing and fabrication center of the communityUses are regulated by the specific use and intensity of the operation, type of hazard, and extent of storage

Manufacturing - Continued

Heavy ManufacturingWhere everything else goes including mobile homes

Heavier than Heavy

Special Districts

A special district is often called an “overlay.” An overlay is a special set of regulations that are particular to the special district. The underlying district is called the “parent” district

Overlay Examples

Historic Preservation DistrictFloodplain DistrictUniversity Overlay DistrictWatershed and Lake ProtectionTransit Oriented Devel. – Compact Neighborhood DistrictAirport Overlay

Form Based Zoning

New Urbanist alternative to conventional land use regulations called "Form-Based Codes," these new regulations support mixed-use neighborhoods with a range of housing types by focusing more on the size, form, and placement of buildings and parking, and less on land use (residential vs. commercial) and density (housing units per acre)They are prescriptive (they state what you want), rather than proscriptive (what you don't want), FBCs can achieve a more predictable physical result. The elements controlled by FBCs are those that are most important to shaping a high- quality built environment

Form Based

We want

Specific Provisions

Non-Conforming UsesVested RightsLocal State ExemptionsHome OccupationsCongregate FacilitiesAccessory Dwellings (ECHO)

Non-Conforming Use

Previously Legal Conforming UsesA use of the land or structures that once legally conformed to the ordinance (or pre-existed adoption), but because of adoption or change does not conform to district regulationsDistinguished from illegal uses

Methods of Control

Onerous RestrictionsLimited or no changeCannot change uses – or to another conforming useCannot be replaced if damaged or restoredCannot be made more non-conforming

Further Methods

AmortizationA reasonable time period can be established for each type of useThe “grandfather” right runs with the use until the amortization expiresOr, the use is replaced with a more conforming use?

Vested Rights

Similar in Concept to a non-conforming use rightVesting indicates the point at which the right to develop cannot be takenEstopple – related concept

Vested Rights – Cont.

Slow and Quick VestingValid PermitSubstantial InvestmentReliance on officialsGood FaithSubstantial InvestmentEstopple

Home Occupations

Home occupations are traditional and demand will increase as the electronic cottage becomes a realityAmerican attitude, however, shows increasing displeasure with an activity in neighborhoods other than residential living

Home Occupation - Rules

Generally, limited to personal servicesNo more than a certain percent (25) dedicated to the occupationMust be an active residenceNo stock in tradeEmployeesActivity/parking/storage/delivery

Congregate Facilities

One of the true hotspots in American Zoning in the 1990’sCongregate facility is jargon for groups facilities or group homes

Disabilities - Half WayElderly- Drug RehabHomeless - Battered personsJuvenile - Religious

Congregate Limitations

ADA reasonable accommodationState usurpationSupervisorsNumber of residentsSpatial separationRestriction on facilities for those not disabled

E.C.H.O

Elderly Cottage Housing OpportunitiesProblem – zoning ordinance restrictions on 2 unit conversionReality is that we will move to 70 million + elderly in the U.S. by 2050

Supplemental Use Requir.

All zoning ordinances impose additional requirements on certain specified activities to further limit their operationsThese are special rules that apply to certain uses that are known to have externalities that “spill over into the neighborhood” or the community in general.

Supplemental Examples

Adult EstablishmentsAccessory UsesBed and BreakfastHazardous MaterialsDay CareKennelsQuarries

Conditional Uses

Each district typically lists permitted and conditional usesA conditional use (generally) is one that would be permitted except for special characteristics of the activityIn addition to a building permit, a conditional use permit is required

Variations on a Theme

In the normal mode the conditions are established in the ordinance that must met before the use permit is grantedIn the waffle mode, the conditions are established at the time of the hearingAn independent hearing is requiredSome ordinance are practically based on condition use permits

More Conditions

A conditional use must be distinguished from conditions in zoningConditional uses must be specifically listed – not thought up as the need arisesInvolves a public hearing

The Sign Regulations

What Joy!

A Very Short History

First period – rejectionSecond period – partial acceptance if aesthetics is secondaryThird period – these slipped byFourth period – full acceptance

But First

A SHORT TOUR

All Types of Signs

Some Offensive

Or Beyond Offensive

This placard sign on a pickup truck is exceptionally offensive to many. It will appear in a moment. You may take a bathroom break if you wish

REMOVED

Some Catch Your Eye

Part of Americana

Some Are Racist

There Are Big Ones

Lighted Ones

Painted Ones

Pretty Good Looking Ones

And Truly Ugly

Old Wall Signs

New Wall Signs

And Some Clever Ones

A Stupid One Or Two

And Lotta Signs

Projecting – Lighted Signs

Manuscript Signs

The Urban Fabric of Signs and Banners

The Signs of Protest

And Social Comment

Education Signs

End of Part 2 Lecture

Documents

AMERICAN WAY OF ZONING