Thursday, October 19, 2017

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Much of the recent controversy over property rights revolves around the issue of ownership of land and the constraints imposed upon its use and development.  The subject of increasing controversy is in the rural and urbanizing communities of America.  Here, officials are wrestling with the challenge of how they can organize, control, and coordinate the process of development so as to protect the environmental, cultural, aesthetic, and fiscal character of the locality – while meeting the need for new housing, industrial facilities, and commercial growth.

What Is Zoning?

Zoning is the most common technique local governments use to influence the location and density of development. A zoning ordinance has two parts: a text and a map. The text describes the different land use zones, density standards, allowable and non-allowable uses, development standards, and the administration of the process. The map shows the location of the various zoning districts. The ordinance is normally drafted by a community’s planning commission or planning department. Once the draft is ready, a public hearing is held. Finally, the plan commission recommends it to the legislative body, which may reject, amend, or approve the ordinance.  Some communities have drafted or amended their zoning ordinances without referring to the comprehensive plan. Ignoring the comprehensive plan can render the zoning provisions invalid if they are challenged in court. The comprehensive plan, the zoning ordinance, and other land-use regulations must work together to achieve orderly growth.

What Zoning Can & Can’t Do in a Community

Zoning Can:

  • Assist economic growth by helping reserve adequate and desirable sites for industrial and commercial users.
  • Protect property from inconsistent or harmful use.
  • Protect individual property owners from harmful or undesirable uses of adjacent property.
  • Provide orderly and systematic transition in land use that benefit all land uses through public hearings and local decisions.
  • Help prevent objections to normal and necessary farming operations.
  • Make the community more attractive by assisting the preservation of open space, unique natural resources, and natural terrain features.
  • Inform residents where industry will be allowed to develop in an orderly fashion.
  • Protect a community’s historic and architectural heritage.
  • Provide standards for population density and traffic circulation.

Zoning Cannot:

  • Change or correct land uses already in existence.
  • Prohibit farm buildings or interfere in farming decisions, such as crop or livestock selection.
  • Establish higher development standards than the community desires.
  • Guarantee that industrial, commercial, or tourism development will take place.
  • Assure that land uses will be permanently retained as assigned under the zoning resolution. (Rezoning is possible in response to changing conditions and unanticipated opportunities.)
  • Replace a building code.
  • Assure the proper administration of the zoning ordinance.

Who Controls Zoning?

Zoning is a purely a county, city, or municipal affair. Though such laws are somewhat universal, the classifications used to describe zoning are not uniform from place to place. For instance, it is not uncommon to find that zoning rules that apply to one part of the community are different in another part of the town, or that one town has a mix of residential uses with some commercial uses, but a neighboring community might outlaw such mix.

What Are Some Major Types Of Classifications?

Classifications are not the same from place to place. The most frequently-used groups are:

  • Commercial
  • Industrial
  • Residential
  • Agricultural.

These groups may be used in various combinations. Within each of these general categories are more narrowly defined divisions. For example, a residential zone might be segregated into separate zones for single-family homes on one acre, single family homes on a half acre, hotels, boardinghouses, mobile homes, low-rise apartment complexes, high-rise apartment complexes, or institutional housing. An industrial zone may be zoned "heavy", "light", or "research". A commercial zone can be divided into small stores, shopping centers, gas stations, restaurants, drive-in facilities, adult-entertainment districts, and warehouses.

Is Zoning Permanent?

No. A zoning classification is not set in stone. Do not assume that because you are in a residential-use-only zone that the 10-acre vacant lot sitting across the street cannot be built up as a rooming house, or dorm  for college students. Zoning laws can be, and have been, relaxed and exceptions made.

How Do I Find Out What My Property Is Zoned?

By dropping in at your local zoning office, city hall, or some other local planning board and asking for a coy of your local ordinance.  Zoning ordinances and zoning maps are public records.  In some localities, if you have a legal description of the property (name, address, tax map and parcel number), you can phone the appropriate zoning department or city hall or e-mail your request for information.  Some communities have their zoning maps and their zoning ordinances online and in local libraries.

I Want To Change Or Use My Land In A Way Not Allowed By The Local Zoning Ordinance.  What Are My Alternatives?

Zoning ordinance will tell you what you can do with your property.  Should the planned improvement or change you have in mind be considered a violation of the ordinance, consider these options:

  • Modify your proposal to fit the zoning regulations of the land.
  • Look for other land subject to zoning laws that permit your proposed use.
  • Request that your land be rezoned which allows your proposed use or
  • Apply for a variance, conditional use, or nonconforming use permit.

What Do All The Zoning Symbols, Such As R2 Or M3, Mean?

Zoning symbols vary among communities. An R2 zone in one community is not necessarily the same as an R2 in another community. Frequently, communities use letters of the alphabet as code abbreviations to identify the use allowed in a physical geographic area, such as A for agricultural (or airport or apartments), R for residential, C for commercial, I or M (industrial or manufacturing) and P for park or parking lots. These symbols are usually followed by a number to specify the level of use; for example, the common generalizations are R1 for a single-family home, R2 for two-dwelling units, R3 for a apartment complexes, and so forth.

Some communities may also designate another number to indicate certain square footage for that particular zone, as for example, R1-3 to signify a single-family dwelling with a lot size of less than 3 acres.

What Are Some Loss Control Steps Can Be Taken To Avoid Potential Financial Losses From Zoning Issues?

Decisions of planning commissions, zoning commissions, township trustees, village and city councils regarding proposed amendments to the official zoning should be based upon legitimate planning issues and not influenced by peer pressure or public opinion.  Reports and data should contain accurate and factual information, which can be relied upon by the appropriate decision-making body in determining what promotes the health, safety, and welfare of the community.

Make sure that the zoning of property is consistent with an updated, comprehensive land use plan based upon a professionally prepared land use study.  Some communities consider the zoning map to be the land use plan and often it is not based upon data which is reasonably current or consistent with other planning documents such as thoroughfare plans, water and sewer plans, traffic impact studies and demographic trends.  The constitutionality of the zoning of property is more easily defensible if the zoning of the property is based upon a current comprehensive land use plan supported by appropriate data.

The zoning of the property must permit some economic use of the property.  The zoning need not permit a use which would enable an owner to derive the maximum amount of profit from the development of his land.   However, on the other hand, the zoning cannot be utilized to prevent development by allowing only uses which are highly improbable or practically impossible, under the circumstances.

A decision to deny an application for an amendment to a zoning map may result in allegations of a “taking” so as to pressure public officials into agreeing to judicially rezone property by means of a court order.  The threat of a potential award of damage can cause public officials to negotiate a settlement by agreeing to some modification of the proposed development plan in exchange for a release of any claim for damages.  Whereas this practice is generally not well-received by those in opposition to a proposed zoning change, realities may dictate that negotiations be undertaken to obtain the best possible project when the change of asserting a successful defense to a constitutional challenge seems doubtful.

Conclusion

How well a zoning ordinance works depends upon beneficial public discussion and the decisions the planning commission, the zoning administrator, and the elected legislative officials make in responding to development proposals and proposed changes to the zoning text and map.  These everyday decisions have far reaching effects that can be felt for many years. Planners and plan commission members must work wisely to best meet future needs of residents.