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On the Level-Zoning in the United States, Part 2.

November 1, 2007
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In my September column, we discussed some of the history of land use control through zoning in the United States, an issue of great importance to any surveyor involved in land planning and subdivision. We saw that zoning was found to be constitutionally acceptable by the Supreme Court in the case Euclid v. Ambler but that issues such as pre-existing nonconforming uses required legislative remedy.

Other problems have arisen in the years since Euclid, also calling for relief. Some land parcels, because of local conditions, were found to be overly burdened by zoning constraints; and zoning often proved to be inflexible in its application. As a result, the variance and the exception were introduced into the process by legislation and local action, and several innovative measures have found favor in various sections of the country.

Relief and Flexibility

The Variance

Local legislators (city council, town meeting, etc.) who create zoning districts can never make a parcel-by-parcel prediction of the effect of their zoning constraints. Zoning, in its application, is demanding and inflexible and often imposes hardships upon property owners unable to use their land due to one or another of the minimum zoning requirements. Seeing a need for relief, state legislatures instituted the power to communities to grant relief in cases of hardship based on a variance device contained in a U.S. Department of Commerce model law called the 1923 Standard State Enabling Act. The model law proposed that the board of adjustment, among other powers, would be able:

To authorize upon appeal in specific cases such variance from the terms of the ordinance as will not be contrary to the public interest, where, owing to special conditions, a literal enforcement of the provisions of the ordinance will result in unnecessary hardship, and so that the spirit of the ordinance shall be observed and substantial justice done.1

States have adopted the variance device and the courts have upheld or refined its application in the years since 1923. In typical legislative language, the Massachusetts legislature has given the permit granting authority (board of appeals or zoning administrator) the power to grant variances from the terms of the applicable ordinance or bylaw, upon a finding that:

owing to circumstances relating to the soil conditions, shape, or topography of such land or structures … but not affecting generally the zoning district in which it is located, a literal enforcement of the provisions of the ordinance or by-law would involve substantial hardship, financial or otherwise, to the petitioner or appellant, and that desirable relief may be granted without substantial detriment to the public good and without nullifying or substantially derogating from the intent or purpose of such ordinance or by-law.2

In its consideration of an appellant’s appeal for relief, the granting authority must make a threefold finding of (1) hardship, (2) no detriment to the public good and (3) no derogation from the intent and purpose of the ordinance. Each of these tests must be considered and found deliberatively by the authority. Further, the legislation assumes that variances will apply to dimensional requirements of zoning only and that “no variance may authorize a use or activity not otherwise permitted” unless the local ordinance or bylaw expressly permits variances for use. (In application it is found to be very difficult to justify a variance from a use restriction on the basis of hardship.)

The Exception

A zoning ordinance or bylaw lists those uses that are specifically allowed by right. All other uses are prohibited. In the late 1940s in the United States, the special permit device was introduced as an exception giving permitting authorities discretionary decision-making power to consider such uses that may be acceptable in districts where they are denied a use by right. Statutory language of Massachusetts’ zoning law states that “[s]pecial permits may be issued only for uses which are in harmony with the general purpose and intent of the ordinance or by-law, and shall be subject to general or specific provisions set forth therein; and such permits may also impose conditions, safeguards and limitations on time or use.”3 For instance, an ordinance or bylaw’s definition of a residential district will specify the uses allowed by right in the district, such as single family dwellings, churches and places of worship, public schools, libraries and museums, etc., in a residential district. The ordinance or bylaw may also allow by special permit such uses as funeral homes and nursing homes. A petitioner for a special permit must present testimony and evidence sufficient to convince the permitting authority of the worthiness of the proposed use and that the use meets the test of the statute, i.e., that the proposed use will be “in harmony with the general purpose and intent of the ordinance or bylaw.” (Note that a finding of “hardship” is not required in the consideration of special permits.)

Innovative Devices

The Floating Zone

Following World War II, large-scale developments were proposed--and were needed--in the United States, but existing enabling ordinances and bylaws rarely permitted the complex and innovative proposals brought forward. A more sophisticated concept, the floating zone, was introduced in which “a particular category of uses was identified in the text of the ordinance but no equivalent area was found on the map.”4 One of the earliest applications of the floating zone technique to be tested was in the state of New York. In Rodgers v. Village of Tarrytown, the New York appellate court described the ordinance:

The 1947 ordinance creates ‘A new district or class of zone … to be called “Residence B-B” in which besides one- and two- family dwellings, buildings for multiple occupancy of fifteen or fewer families were permitted. The boundaries of the new type district were not delineated in the ordinance but were to be “fixed by amendment of the official village building zoning map, at such times in the future as district or class of zone is applied, to properties in this village.”5

The court held the ordinance to be valid even though it set no boundaries and made no zoning map changes:

It may be conceded that, under the method which the board did adopt, no one will know, from the 1947 ordinance itself, precisely where a Residence B-B district will ultimately be located. But since such a district is simply a garden apartment development, we find nothing unusual or improper in that circumstance. The same uncertainty--as to the location of the various types of structures--would be present if a zoning ordinance were to sanction garden apartments as well as one-family homes in a Residence A district--and yet there would be no doubt as to the propriety of that procedure.6

Contract Zoning

In contract zoning, the municipality authorizes the permit granting authority to consider the “planned unit development” (PUD). The ordinance or bylaw contains no lot size requirements, no building size or style requirements, nor any specified uses beyond residential. There may be no district defined on the zoning map for this purpose but may operate as “overlay zoning” similar to the floating zone concept. The PUD device anticipates a proposed development of a mixture of uses (basically residential but with some relevant ancillary uses allowed) on a significant area of land, with all infrastructure included in the design and amenities such as open space, sports facilities, a meeting center and so on. The proposal is subject to the permit granting authority’s complete discretionary control and is judged on its merits according to certain design criteria contained in the ordinance or bylaw. “In effect, the Planned Unit Development device supplants the preexisting zoning. Covenants and easements bargained for between developer and municipality take the place of customary zoning regulations. Preregulation gives way to negotiation.”7

The Cluster Subdivision

A local bylaw or ordinance may include a provision for clustering by which a developer may propose to create individual house lots at a reduced parcel size from the standard zoning requirement. The developer first demonstrates the potential development of the site applying the standard zoning requirements, thereby establishing the number of units allowable on that site. Lots are then designed at some reduced ratio of area and street frontage, “clustering” the lots in individual neighborhoods of increased density but with no increase in the number of lots throughout the development. The unused land area resulting from this design is set aside to be held in perpetuity as open space or a conservation area to be enjoyed by the residents of the development. The economic advantages of the cluster subdivision are twofold: first to the developer who saves on the cost of infrastructure construction, and second to the municipality on the lifelong savings in maintenance of the reduced infrastructure. Clustering may be seen as a type of contract zoning in that the final plan is negotiated between the developer and the permit granting authority, with each entity recognizing certain benefits. From the developer’s point of view, the main benefit is economic; from the municipality’s point of view, the major benefits are often seen as the preservation of open space and active control of the land planning design process.

Another law familiar to all of us is the law of unintended consequences. Zoning has been credited with protecting neighborhoods and property values but has also been blamed for excessively high housing costs and a lack of affordable housing. Such terms as “snob zoning” and “not in my back yard (NIMBY)” have became a part of the public dialogue on the subject of land use controls. In future columns we will look at the downside of zoning as it has restricted the supply of affordable housing in many areas, and the various legislative responses to regulatory barriers to housing.

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