Zoning
Zoning is a term used in urban planning for a system of land-use regulation in various parts of the world, including North America. The word is derived from the practice of designating permitted uses of land based on mapped zones which separate one set of land uses from another. Zoning regulations fall under the police power rights governments may exercise over real property.
Theoretically, the primary purpose of zoning is to segregate uses that are thought to be incompatible; in practice, zoning is used as a permitting system to prevent new development from harming existing residents or businesses. Zoning is commonly controlled by local governments such as counties or municipalities, though the nature of the zoning regime may be determined by state or national planning authorities. In Australia, land under the control of the Commonwealth (Federal) government is not subject to state planning controls. The United States and other federal countries are similar.
Zoning may include regulation of the kinds of activities which will be acceptable on particular lots (such as open space, residential, agricultural, commercial or industrial), the densities at which those activities can be performed (from low-density housing such as single family homes to high-density such as high-rise apartment buildings), the height of buildings, the amount of space structures may occupy, the location of a building on the lot (setbacks), the proportions of the types of space on a lot (for example, how much landscaped space and how much paved space), and how much parking must be provided. The details of how individual planning systems incorporate zoning into their regulatory regimes varies though the intention is always similar. For example, in the state of Victoria, Australia, landuse zones are combined with a system of planning scheme overlays to account for the multiplicity of factors that impact on desirable urban outcomes in any location.
Most zoning systems have a procedure for granting variances (exceptions to the zoning rules), usually because of some perceived hardship due to the particular nature of the property in question.
Types
Zoning codes have evolved over the years as urban planning theory has changed, legal constraints have fluctuated, and political priorities have shifted. The various approaches to zoning can be divided into four broad categories: Euclidean, Performance, Incentive, and Design-based.
Euclidean
Named for the type of zoning code adopted in the town of Euclid, Ohio, Euclidean zoning codes are by far the most prevalent in the United States, used extensively in small towns and large cities alike. Also known as "Building Block" zoning, Euclidean zoning is characterized by the segregation of land uses into specified geographic districts and dimensional standards stipulating limitations on the magnitude of development activity that is allowed to take place on lots within each type of district. Typical types of land-use districts in Euclidean zoning are: residential (single-family), residential (multi-family), commercial, and industrial. Uses within each district are usually heavily prescribed to exclude other types of uses (residential districts typically disallow commercial or industrial uses). Some "accessory" or "conditional" uses may be allowed in order to accommodate the needs of the primary uses. Dimensional standards apply to any structures built on lots within each zoning district, and typically take the form of setbacks, height limits, minimum lot sizes, lot coverage limits, and other limitations on the building envelope.
The zoning ordinance of Euclid, Ohio was challenged in court by a local land owner on the basis that restricting use of property violated the Fourteenth Amendment to the United States Constitution. Though initially ruled unconstitutional by lower courts, the zoning ordinance was upheld by the U.S. Supreme Court in Village of Euclid, Ohio v. Ambler Realty Co. (1926). See below for more information.
Euclidean zoning is preferred by many municipalities[citation needed] due to its relative effectiveness, ease of implementation (one set of explicit, prescriptive rules), long-established legal precedent, and familiarity to planners and design professionals. Euclidean zoning has received heavy criticism, however, for its lack of flexibility and institutionalization of now-outdated planning theory (see below).
Performance
Also known as "Effects-based planning", Performance Zoning uses performance-based or goal-oriented criteria to establish review parameters for proposed development projects in any area of a municipality. Performance zoning often utilizes a "points-based" system whereby a property developer can apply credits toward meeting established zoning goals through selecting from a 'menu' of compliance options (some examples include: mitigation of environmental impacts, providing public amenities, building affordable housing units, etc.). Additional discretionary criteria may also be established as part of the review process.
The appeal of Performance Zoning lies in its high level of flexibility, rationality, transparency and accountability.[citation needed] Performance Zoning avoids the arbitrary nature of the Euclidian approach, and better accommodates market principles and private property rights with environmental protection. However, performance zoning can be extremely difficult to implement and can require a high level of discretionary activity on the part of the supervising authority. For this reason performance zoning has not been widely adopted in the USA, and is usually limited to specific categories within a broader prescriptive code when found. New Zealand's planning system, however, is grounded in effects-based Performance Zoning under the Resource Management Act 1991.
Incentive
First implemented in Chicago and New York City, incentive zoning is intended to provide a reward-based system to encourage development that meets established urban development goals.[citation needed] Typically, a base level of prescriptive limitations on development will be established and an extensive list of incentive criteria will be established for developers to adopt or not at their discretion. A reward scale connected to the incentive criteria provides an enticement for developers to incorporate the desired development criteria into their projects. Common examples include FAR (floor-area-ratio) bonuses for affordable housing provided on-site and height limit bonuses for the inclusion of public amenities on-site. Incentive zoning has become more common throughout the United States during the last 20 years.
Incentive zoning allows for a high degree of flexibility, but can be complex to administer. The more a proposed development takes advantage of incentive criteria, the more closely it has to be reviewed on a discretionary basis. The initial creation of the incentive structure in order to best serve planning priorities can also be challenging and often requires extensive ongoing revision to maintain balance between incentive magnitude and value given to developers.
Form-Based
Form-based zoning relies on rules applied to development sites according to both prescriptive and potentially discretionary criteria. These criteria are typically dependent on lot size, location, proximity, and other various site- and use-specific characteristics.
Design-based codes offer considerably more flexibility in building uses than do Euclidean codes, but, as they are comparatively new, may be more challenging to create. Design-based codes have not yet been widely adopted in the United States. When form-based codes do not contain appropriate illustrations and diagrams, they have been criticized as being difficult to interpret.
One example of a recently adopted code with design-based features is the Land Development Code adopted by Louisville, Kentucky in 2003. This zoning code creates "form districts" for Louisville Metro. Each form district intends to recognize that some areas of the city are more suburban in nature, while others are more urban. Building setbacks, heights, and design features vary according to the form district. As an example, in a "traditional neighborhood" form district, a maximum setback might be 15 feet from the property line, while in a suburban "neighborhood" there may be no maximum setback.
Why Zoning Is Such a Big Issue
Zoning laws come into play on every single real estate development, regardless of how big or small, so if you are thinking about buying property or making improvements to property you already own, you’d better be sure you understand the zoning restrictions before you commit to anything.
One zoning use is typically not compatible with another. For example, a commercial building usually cannot be constructed on property that’s zoned for residential uses.
If you buy open ground to build your dream house that is in an agricultural zone, you may not be able to build it without a change in the zoning.
Getting the zoning changed on property is a very difficult process. It requires a process of giving public notice and then having a variance approved by government agencies that oversee enforcement of the zoning plan. Opposition to zoning changes by neighbors and other interested parties can be fierce.
You can find out how property is zoned by calling your local planning department. They can also explain what you would need to do to get a variance.
Before getting too involved in a zoning issue, it would no doubt be in your best interests to hire a local land use attorney to help you through the process.
Zoning Restrictions
Use requirements refer to how property can be used. Typical zonings categories include:
Residential
Commercial
Industrial
Agricultural
Recreational
These categories usually break down into further subcategories. For example, there are subcategories for single-family (i.e., residences) and multiple-family (e.g., apartments or condominiums) residential use.
Zoning laws will set forth many use restrictions, such as:
the height and overall size of buildings
their proximity to one another
what percentage of the area of a building lot may contain structures
what particular kinds of facilities must be included with certain kinds of uses
For example, zoning ordinances will typically limit the number of stories and total height of a building, require a certain number of parking spaces for a commercial building, and require a driveway and garage on a suburban residential property.
The bulk requirements of a zoning ordinance refer to:
the height and size restrictions on buildings including the number of stories in a building
the square feet of space which a building provides
the percentage of area it covers on a building lot
the minimum lot size requirements, if any
The setback and side-yard requirements of a zoning ordinance refer to the distance between the front and back property lines and from the side property lines.
Subdivisions
Land is divided up into legal parcels. If you own land and want to divide it up, you have to go through an authorization process to create new legal parcels.
Most zoning ordinances place limitations on a property owner’s ability to subdivide land. There are rigorous procedural requirements for notices, hearings, and consideration by zoning authorities before permission can be given to subdivide property.
There are usually simplified procedures if you want to divide your property into only a few parcels (e.g., not more that 4 parcels). These are sometimes called lot splits.
A major subdivision, however, will be subject to more rigorous rules. At a minimum, these rules would include requirements that a developer prepare a site plan or a subdivision map, which is a comprehensive map showing the planned use of a particular property in detail.
In addition, subdivision laws may require:
the lots be of a particular size
the streets be of a particular width and quality
the water, gas, and sewer lines of a particular type be supplied
Some states permit local governments to require developers who are subdividing property to pay for some portion of the municipal improvements that are necessary for residential use, such as:
Sewers
Schools
Roads
A subdivision will go through many public hearings, giving ample opportunity for anyone to speak in favor of or against a project.
Zoning Problems
You may be unpleasantly surprised to find you can’t use your property as intended without violating zoning ordinances. There are many ways a lawyer can help you to get around the technical requirements of the regulations.
Non-Conforming Use
Existing properties are often used in a manner that’s inconsistent with a new zoning ordinance. Such uses are referred to as non-conforming uses because they don’t conform to the requirements of the zoning ordinance.
A use may be non-conforming because:
the nature or characteristics of the building itself don’t conform to the zoning ordinance
the activity going on in the building doesn’t conform
For example, a factory located in a residential zone is a non-conforming use. A two-story building located in a one-story zone is also a non-conforming use.Generally, you don’t have to quit an existing non-conforming use and may continue after the adoption of a zoning ordinance.However, the right to continue a non-conforming use may be lost if the non-conforming use is abandoned. For example, if a fast-food restaurant is operated in a storefront in an area that is later zoned to exclude all food-related operations, the restaurant may continue to operate. If the restaurant closes, the right to continue the use may be lost if the same restaurant is not reopened or if some other similar food-related use is not begun within a certain period of time. If the building itself is non-conforming, the right to be non-conforming may be lost if the building is completely, or even partially, destroyed.
Amortization is another way to limit non-conforming uses. Under this approach, a non-conforming use is permitted to continue for a specific period of time, after which it must be converted to a conforming use.
Conditional Use
A conditional use is a use which is permitted under a zoning ordinance, but which must meet certain conditions. For example, a zoning ordinance may permit professional offices in a residential zone if at least four off-street parking places are provided.
When a use is conditional, the zoning ordinance often will require the property owner to file an application with local officials so that they may determine whether the conditions have been met.
Variances
A variance or special use permit is an exception to the requirements of a zoning ordinance. Most statutes permitting the adoption of zoning ordinances also detail the circumstances under which variances may be granted.
Usually, you must show some kind of hardship to justify getting a variance. Some examples of hardship are:
an undersized lot on which a variance is needed to construct any useful structure
an odd-shaped lot cannot satisfy the side-yard and setback requirements for the construction of a residence that would otherwise be permitted in the zone
Spot Zoning
Local land use plans and zoning ordinances usually contain restrictions on land uses in specific areas (or zones) outlined in the plan or ordinance.
Once local officials have adopted a plan and ordinance, property owners may seek exceptions to the requirements and limitations either through:
an amendment to the plan or ordinance
an application for a variance or special use permit
In both cases, the amendment or application may be opposed on the grounds that permitting special exceptions for specific properties is inconsistent with the overall land use plan or ordinance, and constitutes illegal spot zoning.
Whether or not a particular exception constitutes illegal spot zoning or is merely a permissible exception greatly varies according to:
the facts of the property use
the provisions of the applicable enabling statute
the land use plan in question
