AMERICAN WAY OF ZONING

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

2. 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

3. 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

4. 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

5. 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’

6. 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

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

8. 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

9. 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

10. The Original Map

11. 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

12. 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.

13. 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

14. Euclidian Zoning

15. 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.

16. 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.)

17. 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

18. 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

19. 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. 

20. 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

21. 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”

22. 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.

23. 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

24. 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

25. 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

26. A Break in Subject

27. 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

28. 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

29. 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)

30. 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

31. 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

32. 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

33. 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

34. 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

35. Back to the Zoning Ordinance

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

37. 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

38. 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.

39. 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

40. 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

41. 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

42. 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

43. Manufactured Homes • One of the great battles of American zoning

44. Its Changing Face Compliments of Steve Gibson

45. 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

46. 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

47. 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

48. 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

49. 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

50. 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