Transcript AMERICAN WAY OF ZONING A ROAD WELL TRAVELED Zoning/Land Use Regulation

AMERICAN WAY OF ZONING
A ROAD WELL TRAVELED
Zoning/Land Use Regulation
Developmental History
Formation period – inception to 1900
Comprehensive nuisance controls
“Let Each Use His Own So As Not To Injure Others”
Private and Public Nuisances
Nuisance Concepts
Unreasonable interference with a property right
Non-Trespassory Invasion
Nuisance Per Se – At all times and places
Nuisance Per Accidens – Times and Location
Nuisance Regulations
Not necessary to show neglect or reckless use
Suitability of the use to the character of the
neighborhood
A person may not come to the nuisance
Remedy is abatement or injunction
Conceptual Period 1900 - 1926
Developing formation of the police power
Concurrent movements – housing, pure food
and drug, parks, good government, and City
Beautiful
Formation of the American Institute of Planners
and Bassett’s visits to Europe
The 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
Pyramidical
Housing
Commerce
Industry
Heavy Manufacturing
Cumulative
NYC Ordinance Based Legislation
Enabling Legislation
The Players
Planning Commission
Governing Body
BZA or Board of Adjustment
The Comprehensive Plan
The Zoning Text and Map
Purpose of the Ordinance
To divide the community into use zones and
intensity districts
To establish the district regulations
Create the enforcement powers
Create the terms of art and definitions
Create 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
property
However, 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 groups
Notable – The National Realty Association and
the Homebuilders Association
The Stage is set in Euclid, Ohio
Zones
Use Restrictions
Regulations
Districts
Village of Euclid, Ohio
Euclid, in 1922, is a small town – a suburb of
Cleveland Ohio
Summary 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 Realty
The 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 Court
Based on solid studies and a plan
Value of property is speculative – a mere
diminishment is not a taking
Protects 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
welfare
The 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 purpose
Due process of law is required to deprive anyone
of a property right
Equal 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 Process
Procedural – 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
ownership
Protect sellers from buyers and sellers from
buyers
Swift and merciless enforcement
Avoids 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 consent
Offer and Acceptance – expression of mutual
agreement, offer must be identical to substance
Consideration – of value
Object – purpose must be lawful/valid
Time – specifies the framework for duties
Contractual Instruments
Servitudes
Negative – To refrain from a specified action
Positive – An affirmative duty to perform some act
Equitable servitudes – Benefit and burden is
reciprocal
Covenants – Deed Restrictions
A contractual agreement to restrict the use and
enjoyment of property
Covenants, as a contract, must run for specified
periods of time
Method of amendment or repeal
Must serve a substantial purpose and not violate
a protected constitutional right
Covenant Examples
Must have a two car garage
All building plans approved by developer
No business in homes
No external color change
No metal roofs
Pickup trucks must be screened
Fences 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 restrictive
Second, the government will not enforce or
honor private regulations between two parties
Third, 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 Legislation
Legislation specifies the exact procedure and
elements that must be prepared prior to the adoption
of the ordinance
Hearing and adoption procedure
Amendment procedure – who may initiate change
Introduction
Purpose and statement of goals
Savings clause
Interpretation
Definitions - 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 Uses
Uses by condition or special use
Special restrictions
Bulk and dimension
Parking and spatial requirements
Authorized 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 districts
Range 1 du/80 acres to 3 Ac./du or slightly smaller
Rationale 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 acre
The standard is 3 units per gross acre
Designed to accommodate the bulk of the residential
population
Only local residential streets necessary for service
Manufactured Homes
One of the great battles of American zoning
Its Changing Face
Compliments of Steve Gibson
Residential - Continued
Medium density districts
Generally ranges from 8 to 25 du’s per gross acre
Basically designed to accommodate the light service,
garden style or walk-up multi family unit with a
general limitation of 3 or 4 living stories
Transportation services ranges for residential streets
to collectors
Residential - Continued
High density residential
Ranges from 26 to 240 units per gross acre
depending on floor area ratios and open space
requirements
Used to transition from residential to commercial
districts
Requires minor to major collectors
Commercial Districts
Center districts
A traditional district designed to service the CBD
Generally limited to public service, personal
services, retail and F.I.R.M. services (finance,
insurance, real estate and marketing
Regulated by footprint, FAR, and total square feet
Commercial - Continued
Neighborhood service
Essentially designed per group of neighborhoods to
accommodate the daily needs of residents
Generally controlled by selling area and square ft.
limitations
Heavy limitation on outside storage
Requires minor to major collectors
Commercial - Continued
Highway Service
Designed to accommodate the automobile and to
direct traffic to major collectors and arterials
The American dumping ground
Designed for high visibility and and large outdoor
storage capability
Commonly used as transition for CBD to
neighborhood commercial
Commercial - Continued
Regional Scale – Cluster
Designed to accommodate those uses that are
considered to be at a “mega” scale
Designation is by sq. ft. and traffic count usually
starting at 15,000 vpd
Requires 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
area
Heavy use as transition district from light to heavy
commercial areas or as buffer to neighborhoods
Commercial - Continued
Heavy Service
Designed for the commercial and semi-commercial
uses
Use pattern is determined by the type and amount of
externalities present
Often linked to special transportation needs
(warehousing) and serve as a transition to
manufacturing
Manufacturing – Fab.
Light and Park Manufacturing
Designed to bring selected “working areas” to parklike settings
Uses are selected by the amount of externalities and
ability to contain their activities to local lot areas
Design applications
Serve as transition to general manufacturing
Manufacturing - Continued
General Manufacturing
The “workhorse” of the community zones.
The basic manufacturing and fabrication center of
the community
Uses are regulated by the specific use and intensity
of the operation, type of hazard, and extent of
storage
Manufacturing - Continued
Heavy Manufacturing
Where 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 District
Floodplain District
University Overlay District
Watershed and Lake Protection
Transit Oriented Devel. – Compact
Neighborhood District
Airport 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 Uses
Vested Rights
Local State Exemptions
Home Occupations
Congregate Facilities
Accessory Dwellings (ECHO)
Non-Conforming Use
Previously Legal Conforming Uses
A 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 regulations
Distinguished from illegal uses
Methods of Control
Onerous Restrictions
Limited or no change
Cannot change uses – or to another conforming use
Cannot be replaced if damaged or restored
Cannot be made more non-conforming
Further Methods
Amortization
A reasonable time period can be established for
each type of use
The “grandfather” right runs with the use until the
amortization expires
Or, the use is replaced with a more conforming use?
Vested Rights
Similar in Concept to a non-conforming use right
Vesting indicates the point at which the right to
develop cannot be taken
Estopple – related concept
Vested Rights – Cont.
Slow and Quick Vesting
Valid Permit
Substantial Investment
Reliance on officials
Good Faith
Substantial Investment
Estopple
Home Occupations
Home occupations are traditional and demand
will increase as the electronic cottage becomes
a reality
American attitude, however, shows increasing
displeasure with an activity in neighborhoods
other than residential living
Home Occupation - Rules
Generally, limited to personal services
No more than a certain percent (25) dedicated to
the occupation
Must be an active residence
No stock in trade
Employees
Activity/parking/storage/delivery
Congregate Facilities
One of the true hotspots in American Zoning in
the 1990’s
Congregate facility is jargon for groups facilities
or group homes
Disabilities
Elderly
Homeless
Juvenile
- Half Way
- Drug Rehab
- Battered persons
- Religious
Congregate Limitations
ADA reasonable accommodation
State usurpation
Supervisors
Number of residents
Spatial separation
Restriction on facilities for those not disabled
E.C.H.O
Elderly Cottage Housing Opportunities
Problem – zoning ordinance restrictions on 2 unit
conversion
Reality 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 operations
These 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 Establishments
Accessory Uses
Bed and Breakfast
Hazardous Materials
Day Care
Kennels
Quarries
Conditional Uses
Each district typically lists permitted and
conditional uses
A conditional use (generally) is one that would
be permitted except for special characteristics of
the activity
In 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 granted
In the waffle mode, the conditions are
established at the time of the hearing
An independent hearing is required
Some ordinance are practically based on
condition use permits
More Conditions
A conditional use must be distinguished from
conditions in zoning
Conditional uses must be specifically listed – not
thought up as the need arises
Involves a public hearing
The Sign Regulations
What Joy!
A Very Short History
First period – rejection
Second period – partial acceptance if aesthetics
is secondary
Third period – these slipped by
Fourth 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
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