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

3. 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

4. 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

5. 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

6. 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’

7. 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

8. Nature of the NYC Ordinance Housing Commerce Industry Heavy Manufacturing Pyramidical Cumulative

9. 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

10. 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

11. The Original Map

12. 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

13. 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.

14. 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

15. Zones Regulations Districts Use Restrictions

16. 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.

17. 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.)

18. 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

19. 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

20. 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.

21. 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

22. Review of Constitution Basis The Police Power – The power reserved to the states to protect the public health, safety and welfare The 5 th 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”

23. Applicable to the States The 14 th 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.

24. 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

25. 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

26. 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

27. A Break in Subject

28. 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

29. 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

30. 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)

31. 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

32. 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

33. 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

34. 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 1 st quality wood

35. 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

36. Back to the Zoning Ordinance

37. Terminology Builders acre – ¾ lots per acre An Acre = 43,560 sq feet Building Envelope or Footprint

38. 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

39. 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.

40. 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

41. 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

42. 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

43. 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

44. Manufactured Homes One of the great battles of American zoning

45. Its Changing Face Compliments of Steve Gibson

46. 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

47. 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

48. 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

49. 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

50. 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

51. 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

52. 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

53. 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

54. Manufacturing – Fab. Light and Park Manufacturing Designed to bring selected “working areas” to park- like 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

55. 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

56. Manufacturing - Continued Heavy Manufacturing Where everything else goes including mobile homes

57. Heavier than Heavy

58. 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

59. Overlay Examples Historic Preservation District Floodplain District University Overlay District Watershed and Lake Protection Transit Oriented Devel. – Compact Neighborhood District Airport Overlay

60. 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

61. Form Based We want

62. Specific Provisions Non-Conforming Uses Vested Rights Local State Exemptions Home Occupations Congregate Facilities Accessory Dwellings (ECHO)

63. 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

64. 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

65. 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?

66. 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

67. Vested Rights – Cont. Slow and Quick Vesting Valid Permit Substantial Investment Reliance on officials Good Faith Substantial Investment Estopple

68. 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

69. 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

70. 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- Half Way Elderly- Drug Rehab Homeless- Battered persons Juvenile- Religious

71. Congregate Limitations ADA reasonable accommodation State usurpation Supervisors Number of residents Spatial separation Restriction on facilities for those not disabled

72. 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

73. 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.

74. Supplemental Examples Adult Establishments Accessory Uses Bed and Breakfast Hazardous Materials Day Care Kennels Quarries

75. 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

76. 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

77. 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

78. The Sign Regulations What Joy!

79. A Very Short History First period – rejection Second period – partial acceptance if aesthetics is secondary Third period – these slipped by Fourth period – full acceptance

80. But First A SHORT TOUR

81. All Types of Signs

82. Some Offensive

83. 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

84. Some Catch Your Eye

85. Part of Americana

86. Some Are Racist

87. There Are Big Ones

88. Lighted Ones

89. Painted Ones

90. Pretty Good Looking Ones

91. And Truly Ugly

92. Old Wall Signs

93. New Wall Signs

94. And Some Clever Ones

95. A Stupid One Or Two

96. And Lotta Signs

97. Projecting – Lighted Signs

98. Manuscript Signs

99. The Urban Fabric of Signs and Banners

100. The Signs of Protest

101. And Social Comment

102. Education Signs

103. End of Part 2 Lecture