Reforming Zoning Laws

By Samuel R. Staley

Technology is radically changing the concept of the city and the role of geography in residential and commercial location. Yet modern planning often relies on master plans-rarely updated- that presume to predict and control future land-use patterns. Once land uses are established by ordinance in the zoning map, and deviations from the zoning map must be approved by planning commissions and city councils, innovation becomes an uphill battle.

The alternative to the present rigid top-down system is market-oriented planning. Market-oriented planning retools the approval and rezoning process to respond to consumer preferences while protecting the interests of neighbors and community residents. Several strategies are outlined below.

Strategy 1: Facilitate market trends; don't hinder them. Markets force developers to respond swiftly to consumer preferences. They find out quickly, for example, whether consumers want high- or low-density and how much open space is attractive. Planners' tools should allow such preferences to be adopted.

  • "As of Right" Development. Under this doctrine, attempts to change land uses are automatically protected unless the planning board or local legislative body takes explicit action to hold up approval. Developers should be required to notify neighbors and others directly affected by their proposed projects so that any harms or potential spillover effects can be addressed specifically.
  • Overlay Zoning Districts. An overlay is a regulation (e.g. a code or zoning district) that, under specific situations, supersedes the underlying regulation. An overlay might allow for deviations from standard densities under certain circumstances or allow innovations such as neotraditional development or coving that conventional zoning codes would prohibit (see discussion of coving on pages 5Ð7).
  • Mixed-Use Zoning. Defining zones broadly to accommodate more than one use will allow communities to change and evolve.
  • Market-Determined Densities. Communities should allow consumers to determine appropriate densities. "Performance zoning," for example, might establish standards for design elements such as the amount of open space but would not spell out how these standards must be met.

 

Strategy 2: Make nuisance and third-party harm the focus of planning and development review. The original intent of zoning was to protect neighbors against development that could reduce property values by imposing harms. However, the open-ended nature of today's approval process creates substantial uncertainties and delays and a bargaining environment in which any concerns can be raised, regardless of actual impact. The negative impacts of property development should be demonstrable before restrictions are imposed, and developers should be given the opportunity to correct for these impacts.

  • Nuisance Standards for Approval. The traditional common law principle of nuisance should be the standard for government regulation of private activity. Neighbors would have standing to insist on mitigation of or compensation for clearly substantiated damages resulting from the development.
  • Minimized Role of Aesthetics. The impacts of spillover effects tend to be very local, affecting close neighbors rather than entire neighborhoods or communities. Thus regulatory control should be focused on the impacts of individual development proposals and projects rather than broad citywide regulation. Aesthetic issues are so intangible that they cannot be handled objectively through the planning process.
  • Preapplication Meetings. Early meetings with planning staff can identify problems before significant resources have been invested in a project.

 

Strategy 3: Adopt administrative rather than legislative reviews of development applications. Legislative review forces local governments into case-by-case reviews of projects irrespective of their impact. Minor changes end up being subjected to the same approval processes as large, integrated, mixed-use developments. This slows land redevelopment and subjects projects to an often arbitrary and unpredictable approval process.

  • Limitations on Standing. Public hearings should be used primarily to disclose tangible, measurable spillover impacts so they can be addressed. The current approval system gives standing to anyone within the community to comment, delay, or object to a proposal, regardless of the project's actual effects.
  • Administrative Site-Plan Review. In most cases an administrative review process, rather than legislative review, can evaluate a project. Clearly defined criteria for what is acceptable can be coupled with performance bonuses to encourage the inclusion of specific characteristics such as landscaped buffers between roads and buildings.
  • One-Stop Shop for Planning and Permit Approvals. One-stop permit processing streamlines the process. This is especially important for small and less-experienced developers.
  • A Supermajority. While local governments should provide an appeal process, a supermajority should be required for city councils to override planning board decisions. This requirement would build certainty in the process and strengthen the ability of planning boards to mediate between affected parties.

 

Strategy 4: Align Costs with Property Development. Property owners and developers should bear the full costs of property development. Local communities should not be expected to subsidize property development by extending sewers, roads, and other infrastructure to the site without charging property owners and developers the full cost of these improvements. Nor should new residents be expected to subsidize existing residents by paying fees in excess of their true cost, as sometimes happens when impact fees are imposed.

  • Developer Payment for On-Site Infrastructure. Private developers should pay the full financial burden of extending sewer lines, roads, and other utilities to their property, using materials and technology consistent with the existing infrastructure and their own development needs.
  • Full-Cost Pricing for Infrastructure. An alternative to on-site provision of infrastructure is full-cost pricing when the public sector builds the infrastructure. The developer should be charged all costs-operating, maintenance, capital costs, and debt service-for the provision of water, sewer, and other utilities that serve the development.
  • Public Planning for Future Infrastructure. State and local governments typically make long-term investments in roads, sewers, and water systems with little consideration of the impacts on land development and the real-estate market or regional planning. They should be required to plan the location of infrastructure and secure the necessary rights of way and easements before private development takes place. Actual construction would be triggered by development patterns and private-sector investment thresholds and tied to specific performance measures.

 

By working with the dynamic nature of the real estate market, planning can be retooled to ensure more efficient land use, to facilitate the evolution of local communities, and to strengthen their long-term economic viability.

Samuel R. Staley is Director of the Urban Futures Program at the Reason Public Policy Institute, a nonprofit research and education organization based in Los Angeles. This essay is adapted from "Reforming the Zoning Laws" in A Guide to Smart Growth: Shattering Myths and Providing Solutions, ed. Jane S. Shaw and Ronald D. Utt (Washington, DC: Heritage Foundation, 2000).

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