Zoning in the United States

Zoning in the United States comprise land use state laws falling under the police power rights state governments may exercise over private real property.

Origins and history

Special laws and regulations were long made, restricting the places where particular businesses should be carried on. In the 1860s a specific state statute prohibited all commercial activities along Eastern Parkway (Brooklyn), setting a trend for future decades.Fact|date=June 2007

In 1916, New York City adopted the first zoning regulations to apply city-wide as a reaction to construction of The Equitable Building (which still stands at 120 Broadway). The building towered over the neighboring residences, completely covering all available land area within the property boundary, blocking windows of neighboring buildings and diminishing the availability of sunshine for the people in the affected area. These laws, written by a commission headed by Edward Bassett and signed by Mayor John Purroy Mitchel, became the blueprint for zoning in the rest of the country, partly because Bassett headed the group of planning lawyers which wrote The Standard State Zoning Enabling Act that was accepted almost without change by most states. The effect of these zoning regulations on the shape of skyscrapers was famously illustrated by architect and illustrator Hugh Ferriss.

The constitutionality of zoning ordinances was upheld in 1926. 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. [Village of Euclid, Ohio v. Ambler Realty Co. (1926)]

By the late 1920s most of the nation had developed a set of zoning regulations that met the needs of the locality.Fact|date=June 2007

New York City went on to develop more complex zoning regulations encompassing floor-area ratio regulations, air rights and others according to the density-specific needs of the neighborhoods.

Among large populated cities in the United States, Houston is unique in having no zoning ordinances. Houston voters have rejected efforts to implement zoning in 1948, 1962 and 1993. It is commonly believed that "Houston is Houston" because of the lack of zoning laws [ [http://www.chicagotribune.com/classified/realestate/news/chi-houston_re_11-18nov18,0,2383766.story Lack of zoning laws a challenge in Houston - chicagotribune.com ] ] . However, large cities throughout the Sun Belt are newer than more urban US cities like New York and San Francisco and consequently the sun belt cities had the bulk of their development in the automobile age. These cities, such as Los Angeles, Phoenix and Atlanta, all experienced sprawl similar to Houston despite having zoning. [http://www.planetizen.com/node/109 Zoning Without Zoning | Planetizen ] ] "Land Use Regulation and Residential Segregation: Does Zoning Matter?" Christopher Berry, American Law and Economics Review V3 N2 2001 (251-274)] ["Home From Nowhere" James Howard Kunstler, The Atlantic Monthly; September 1996] Also, many private properties in Houston have legal covenants or "deed restrictions" which limit future uses of land and have an effect similar to zoning. [ [http://www.businessweek.com/the_thread/hotproperty/archives/2007/10/how_houston_get.html Hot Property How Houston gets along without zoning - BusinessWeek ] ] Houston's municipal code also contributed to auto-dependent sprawl by requiring large minimum residential lot sizes and commercial parking lots. Large road widths and long blocks further discourage walking in the city.

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Theoretically, the primary purpose of zoning is to segregate uses that are thought to be incompatible. However, in practice zoning is used as a permitting system to prevent new development from harming existing residents or businesses. Zoning is commonly exercised by local governments such as counties or municipalities, though the state determines the nature of the zoning scheme with a zoning enabling law. Land under control of the federal government is not subject to state planning controls.

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.

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. If the variance is not warranted, then it may cause an allegation of spot zoning to arise. Most state's zoning enabling laws prohibit local zoning authorities from engaging in any spot zoning because it would undermine the purpose of a zoning scheme.Eves]

Types of residential zones would be R1 for single-family homes, R2 for two-family homes, and R3 for multiple-family homes.

Constitutional challenges

Facial challenges

There have been notable legal challenges to zoning regulations. In 1926 the United States Supreme Court upheld zoning as a right of U.S. states (typically via their cities and counties) to impose on landowners. The case was "Village of Euclid, Ohio v. Ambler Realty Co." (often shortened to "Euclid v. Ambler"), 272 U.S. 365 (1926). The village had zoned an area of land held by Ambler Realty as a residential neighborhood. Ambler argued that it would lose money because if the land could be leased to industrial users it would have netted a great deal more money than as a residential area. Euclid won, and a precedent was set favorable to local enforcement of zoning laws.

The Euclid case was a facial challenge, meaning that the entire scheme of regulation was argued to be unconstitutional under any set of circumstances. The United States Supreme Court justified the ordinance saying that a community may enact reasonable laws to keep the pig out of the parlor, even if pigs may not be prohibited from the entire community.

Since the Euclid case, there have been no more facial challenges to the general scheme.

Takings

Beginning in 1987, several United States Supreme Court cases ruled against land use regulations as being a taking requiring just compensation pursuant to the Fifth Amendment to the Constitution. "First English Evangelical Lutheran Church v. Los Angeles County" ruled that even a temporary taking may require compensation. "Nollan v. California Coastal Commission" ruled that permit conditions that fail to substantially advance the agency's authorized purposes require compensation. "Lucas v. South Carolina Coastal Council" ruled that numerous environmental concerns were not sufficient to deny all development without compensation. "Dolan v. City of Tigard" ruled that conditions of a permit must be roughly proportional to the impacts of the proposed new development. "Palazzolo v. Rhode Island" ruled property rights are not diminished by unconstitutional laws that exist without challenge at the time the complaining property owner acquired title.

However, the landowner victories have been mostly limited to the U.S. Supreme Court despite that Court's purported overriding authority. Each decision in favor of the landowner is based on the facts of the particular case, so that regulatory takings rulings in favor of landowners are little more than a landowners' mirage. Even the trend of the U.S. Supreme Court may now have reversed with the 2002 ruling in Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency. Justice Sandra Day O'Connor, who had previously ruled with a 5-4 majority in favor of the landowner, switched sides to favor the government that had delayed development for more than 20 years because of the government's own indecision about alleged concerns to the water quality of Lake Tahoe.

Equal protection

Specific zoning laws have been overturned in some other U.S. cases where the laws were not applied evenly (violating equal protection) or were considered to violate free speech. In the Atlanta suburb of Roswell, Georgia, an ordinance banning billboards was overturned in court on such grounds. It has been deemed that a municipality's sign ordinance must be content neutral with regard to the regulation of signage. The City of Roswell, Georgia has now instituted a sign ordinance that regulates signage based strictly on dimensional and aesthetic codes, rather than an interpretation of a sign's content (i.e. use of colors, lettering, etc.).

Religious exercise

On other occasions, religious institutions sought to circumvent zoning laws, citing the Religious Freedom Restoration Act of 1993 (RFRA). The Supreme Court eventually overturned RFRA in just such a case, "City of Boerne v. Flores" 521 U.S. 507 (1997). However, Congress enacted the Religious Land Use and Institutionalized Persons Act (RLUIPA) in 2000 in an effort to correct the constitutionally objectionable problems of the RFRA. In the 2005 case of Cutter v. Wilkinson, the United States Supreme Court held RLUIPA to be constitutional as applied to institutionalized persons, but has not yet decided RLUIPA's constitutionality as it relates to religious land uses.

Types

Zoning codes have evolved over the years as urban planning theory has changed, legal constraints have fluctuated, and political priorities have shifted. [ Holm, Ivar (2006). "Ideas and Beliefs in Architecture and Industrial design: How attitudes, orientations, and underlying assumptions shape the built environment". Oslo School of Architecture and Design. ISBN 8254701741.] The various approaches to zoning can be divided into four broad categories: Euclidean, Performance, Incentive, and Design-based.

Euclidean

Conventional

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 StatesFact|date=June 2007, 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).

Euclidean zoning is preferred by many municipalitiesFact|date=June 2007 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. Separation of uses contributes to wasteful sprawl development, loss of open space, heavy infrastructure costs, and reliance on the automobile.

mart zoning

Smart zoning (or smart coding) is an alternative to Euclidian zoning. There are a number of different techniques to accomplish smart zoning. Floating zones, cluster zoning, and planned unit development (PUDs) are possible even as the conventonal Euclidean code exists, or the conventional code may be completely replaced by a smart code, as the City of Miami is proposing. The following three techniques may be used to accomplish either conventional separation of uses or more environmentally responsible Traditional Neighborhood Development, depending on how the codes are written. For serious reform of Euclidean zoning, TND ordinances such as form-based codes or the SmartCode are usually necessary.

Floating zones involve an ordinance that describes a zone's characteristics and requirements for its establishment, but its location remains undesignated until the board finds that a situation exists which allows the implementation of that type of zone in a particular area. When the criteria of a floating zone is met the floating zone ceases "to float" and is adopted by a zoning amendment. Some states allow this type of zoning like New York and Maryland while states such as Pennsylvania do not as an instance of spot zoning. To be upheld the floating zone the master plan must permit floating zones or at least they should not conflict with the master plan. Further, the criteria and standards provided for them should be adequate and the action taken is not arbitrary or unreasonable. Generally, the floating zone is more easily adoptable and immune from legal challenges if it does not differ substantially from zoned area in which it is implemented.

Cluster zoning permits residential uses to be clustered more closely together than normally allowed thereby leaving substantial land area to be devoted to open space.

Planned unit development is cluster zoning but allows for mixed uses including some commercial and light industrial uses in order to blend together a traditional downtown environment but with at a suburban scale. However, a planned unit development may be held to be a "sham" (using common law language) under judicial review should there be a motive to bring in commercial and industrial uses forbidden by the state's zoning enabling law. Such a "sham" (using common law language) would constitute an "arbitrary and capricious abuse" of the police power.

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.Fact|date=June 2007 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.Fact|date=June 2007 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 [http://www.louisvilleky.gov/PlanningDesign/ldc/ 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 convert|15|ft|m from the property line, while in a suburban "neighborhood" there may be no maximum setback.

Dallas, Texas, is currently developing an optional form-based zoning ordinance. [http://www.forwarddallas.org/projects/devcode.php]

Euclidean II Zoning

Euclidean II Zoning [http://www.euclideanii.org] uses traditional Euclidean zoning classifications (industrial, commercial, multi-family, residential,etc.) but places them in a hierarchical order "nesting" one zoning class within another similar to the concept of Planned Unit Developments (PUD) mixed uses, but now for all zoning districts; in effect, adding a third dimension to flatland Euclidean zoning. For example, multi-family is not only permitted in "higher order" multi-family zoning districts, but also permitted in high order commercial and industrial zoning districts as well. Protection of land values is maintained by stratifying the zoning districts into levels according to their location in the urban society (neighborhood, community, municipality, and region). Euclidean II zoning also incorporates transportation and utilities as new zoning districts in its matrix dividing zoning into three categories: Public, Semi-Public and Private. In addition, all Euclidean II Zoning permitted activities and definitions are tied directly to the state's building code, Municode and the North American Industry Classification System (NAICS) assuring statewide uniformity. Euclidean II zoning fosters the concepts of mixed use, new urbanism and "highest and best use"; and, simplifies all zoning classifications into a single and uniform set of activities. It is realitively easy to transition from most existing Euclidean zoning classification systems to the Euclidean II Zoning system.

Amendments to zoning regulations

Amendments to zoning regulations may be subject to judicial review should such amendments be challenged as ultra vires or unconstitutional.

The standard applied to the amendment to determine whether it may survive judicial scrutiny is the same as as the review of a zoning ordinance: whether the restriction is arbitrary or whether it bears a reasonable relationship to the exercise of the state's police power.

If the residents in the targeted neighbohood complain about the amendment, their argument in court does not allow them any vested right to keep the zoned district the same.Duggan] However, they do not have to prove the difficult standard that the amendment amounts to a taking. If the gain to the public for the rezoning is small compared to the hardships that would affect the residents, then the amendment may be granted if it provides relief to the residents.

If the local zoning authority passes the zoning amendment, then spot zoning allegations may arise should the rezoning be preferential in nature and cannot be reasonably justified.

Limitations and criticisms

Land-use zoning is considered by someWho|date=June 2007 to be an important tool in the treatment of certain social ills, a part of the larger concept of social engineering. Criticism of zoning is widespreadFact|date=June 2007, however, and its effectiveness as a tool for promoting or discouraging social change is debatable. The voters of Houston, Texas have rejected implementation of zoning districts through referendums held in 1948, 1962 and 1993.

Circumventions

Existing development in a community is generally not affected by the new zoning laws because it is "grandfathered" or "legally non-conforming" as a nonconforming use, meaning the prior development is exempt from compliance. Consequently, zoning can only affect new development in a growing community. In addition, if undeveloped land is zoned to allow development, that land becomes relatively expensive, causing developers to seek land that is not zoned for development, and then seek rezoning of that land themselves. Communities generally react by not zoning undeveloped land to allow development until a developer requests rezoning and presents a suitable plan. Development under this practice appears to be piecemeal and uncoordinated. Communities try to influence the timing of development by government expenditures for new streets, sewers and utilities usually desired for modern developments. However, the development of interstate freeways for purposes unrelated to planned community growth, creates an inexorable rush to develop the relatively cheap land near interchanges. Property tax suppression measures such as California Proposition 13 have led many communities to disregard their comprehensive plans and rezone undeveloped land for retail establishments, desperate to capture sales tax revenue.

Aesthetic

More prescriptive zoning codes tend to give rise to a phenomenon known colloquially as "Design by Zoning", or DBZ.Fact|date=June 2007 Jurisdictions with highly prescriptive zoning codes can force the uniform adoption of (often unintentionally negative) aesthetic qualities in all new construction due to the inflexibility of the zoning ordinances. This can lead to urban environments dominated by apparently nonsensical or awkward building configurations. An example of this has occurred in the application of the increasingly-complex low-rise multi-family residential code in Seattle, Washington.

ocial

In more recent times, zoning has been criticized by urban planners and scholars (most notably Jane Jacobs) as a source of new social ills, including urban sprawl, the separation of homes from employment, and the rise of "car culture." Some communities have begun to encourage development of denser, homogenized, mixed-use neighborhoods that promote walking and cycling to jobs and shopping. However, a single-family home and car are major parts of the "American Dream" for nuclear families, and zoning laws often reflect this: in some cities, houses that do not have an attached garage are deemed "blighted" and are subject to redevelopment. Movements that disapprove of zoning, such as New Urbanism and Smart Growth, generally try to reconcile these competing demands. New Urbanists in particular try through creative urban design solutions that hark back to 1920s and 1930s practices. Late in the 20th century, New Urbanists have also come under attack for encouraging sprawl and for the highly prescriptive nature of their model code proposals.

Exclusionary

Zoning has long been criticized as a tool of racial and socio-economic exclusion and segregation, primarily through minimum lot-size requirements and land-use segregation (sometimes referred to as "environmental racism"). Early zoning codes were often explicitly racist. [June Manning Thomas provides a [http://gis.sarup.uwm.edu/acsp/Documents/Race_LitReview.pdf survey of the literature concerned with this particular critique of zoning] ]

Exclusionary practices remain common among suburbs wishing to keep out those deemed socioeconomically or ethnically undesirable: for example, representatives of the city of Barrington Hills, Illinois once told the Real Estate section of the "Chicago Tribune" that the city's convert|5|acre|m2|sing=on minimum lot size helped to "keep out the riff-raff."

Racial

Numerous U.S. States created racial zoning laws early on, however such laws were ruled out in 1915 when the U.S. Supreme Court ruled that such laws interfered with the property rights of owners [http://www.stetsonkennedy.com/jim_crow_guide/chapter6_1.htm] . There were repeated attempts by various states, municipalities, and individuals since then to create zoning and housing laws based on race, however such laws were eventually overturned by the courts. The legality of all discrimination in housing, by public or private entities, was ended by the Fair Housing Act (Title VIII of the Civil Rights Act of 1968). [ [http://www.hum.wa.gov/FairHousing/History.htm Washington State Human Rights Commission ] ]

Despite such rulings, many claim that zoning laws are still used for the purpose of racial segregation. [ [http://www.mountainx.com/opinion/2007/zoning_promotes_racism_and_sprawl Zoning promotes racism and sprawl | Mountain Xpress Opinion | mountainx.com ] ]

Housing affordability

Zoning has also been implicated as a primary driving factor in the rapidly accelerating unaffordability of housing in urban areas. [Glaeser, Edward L. and Gyourko, Joseph, [http://post.economics.harvard.edu/hier/2002papers/HIER1948.pdf The Impact of Zoning on Housing Affordability,] 2002] One mechanism for this is zoning by many suburban and exurban communities for very large minimum residential lot and building sizes in order to preserve home values by excluding poorer people. This shifts the market toward more expensive homes than might ordinarily be built. According to the Manhattan Institute as much as half of the price paid for housing in some jurisdictions is directly attributable to the hidden costs of restrictive zoning regulation.

In 1969 Massachusetts enacted Chapter 40B, a so-called anti-snob zoning statute. Under this law, developers may circumvent local zoning boards in municipalities with less than 10% affordable housing. Similar laws are in place in other parts of the United States, though their effectiveness is disputed.

References

ee also

*Zoning
*Variance (land use)
*Spot zoning
*Form based codes