|Zoning FAQ||Frequently Asked Questions about Zoning|
Zoning is a police power exercised by local municipalities through the adoption of ordinances to control and direct the use and development of private property. Zoning is typically regulated through the implementation of a zoning code controlling the size, density and location of buildings on private land, along with requirements for access and parking.
Most local municipalities have enacted some form of zoning code for this purpose, administered by the local planning or community development department.. A notable exception is the City of Houston which does not have a formal zoning code. Houston does, however, have a series of 13 development ordinances, which taken together, form the basis of the city's land use regulation, in the same manner that zoning codes operate in other cities.
Urban Concepts maintains a library of zoning codes from across the country.
Zoning entitlements are descriptions of what can be built by right on a particular property under the current rules and regulations of the zoning code, the comprehensive plan and any other regulatory restrictions.
Zoning codes typically divide uses of land into two categories, permitted uses and discretionary uses, called either "conditional" or "special" use. Zoning classifications or designations typically provide a list of permitted uses that can be located in that particular zone "by right". The zoning classifications also provide, in many cases, a list of uses that may be approved subject to a discretionary approval process. Such a discretionary process, called either a conditional use or special use, usually involves an application, an environmental review and a public hearing with input from other locally affected property owners and stake holders. In order to grant such a discretionary permit, the city, township or village must typically find that the special use does not negatively impact surrounding properties nor run counter to the adopted comprehensive plan. Discretionary permits also include variances where an unusual condition requires a special review and approval in order to permit something that is not normally permitted by the code.
Such special permits usually come with "conditions of approval" which are special requirements unique to each individual case. The special requirements may include restrictions on use, limits on height, added parking or the right of design approval.
Planning functions in most cities are divided into two categories, current planning and long-range planning. While zoning and the issuance of discretionary permits fall under the current planning category, comprehensive planning is typically a function within the long-range planning category. A comprehensive plan, also known as a general plan or master plan in some communities, is a general outline of future development projections for local community. In most cases it is a document used to project growth patterns over a period of time, usually from 20 to 50 years. It is used also to develop long-term programs for capital improvements and other programs affected by a municipality's anticipated long-term evolution.
In most states, state law requires that local municipalities the zone property in a manner consistent with the outlines of the adopted general or comprehensive plan. Hence, a jurisdiction is, in many ways, restricted from changing the zoning designation of property to one that does not match the adopted comprehensive or general plan.
Specific plans are mechanisms by which local planning agencies can specify development regulations and land use preferences for certain unique physical areas. Specific planning regulations apply only in specified geographic areas, allowing local regulatory agencies the ability to tailor planning and zoning regulations to unique topography or circulation patterns in special areas. Specific plans may contain special height restrictions, added parking requirements and special design review requirements. Unlike comprehensive plans, specific plans are usually established by ordinance and become part of the zoning code.
Interim Control Ordinances (ICO's) are typically emergency measures adopted by a local municipality in response to unusual development activity which appears to run contrary to the public interest, even though the development is allowed by the zoning ordinances currently in effect. Interim controls usually address a specific geographic area and are limited to a certain time frame to give the jurisdiction time to react in a more comprehensive manner. During this "interim" time frame, the local jurisdiction is expected to review the situation and address any changes in the code through the adoption of permanent ordinances.
While a building, once it is built, tends to be fairly stable over a long period of time, the zoning code governing the size of the building and the use of the land tends to respond to changes in public policy and development patterns over that same span of time. The resulting changes in the code result in making many of the existing buildings in the urban fabric "non conforming" with respect to current laws. A non-conforming structure is one where the size, shape or location of the building no longer complies with the current requirements of the zoning code. An example of non-conforming structure would be one where a six story building was built in the 1940's when the city did not restrict heights of buildings. If, say in 1970, the city decided not to permit buildings to exceed 3 stories in that area, the existing 6 story structure would then be considered non-conforming.
A non-conforming use is one which was originally established legally, but is no longer permitted by the current zoning designation at that particular location. For example, if a building houses a manufacturing use in an area that gradually became actively commercial over time, the city might re-zone the area using commercial designation which prohibits manufacturing, rendering the existing manufacturing use non-conforming.
Why is the non-conforming nature of the building important? Most jurisdictions severely restrict the ability of non-conforming uses and structures to expand or alter their facilities. In more extreme cases, municipalities will establish an amortization period for non-conforming uses and structures. At the end of the period, which ranges usually from 10 to 40 years, the use or structure is expected to be removed. Just as importantly, a building's conforming/non-conforming status is an important factor in determining whether the building can be re-built in the event of a catastrophic loss. Many jurisdictions place limits on the amount of damage that can be repaired in a non-conforming structure. Cities typically prohibit the non-conforming structure from be re-built if more than 75% of the structure is lost in a catastrophe such as a fire or tornado. This is why one of the primary findings in an Urban Concepts Entitlement Evaluation Report focuses on the question of whether or not an existing building conforms to the current code.
Under the 5th amendment to the US Constitution, the government is prohibited from "taking" private property without compensation. Recent court decisions have held that if a local municipality zones a piece of private property in a certain way which renders the property unbuildable or useless, that constitutes a "taking" under the 14th amendment and the local agency is liable to pay damages to the landowner for his loss. In the landmark case, the County of Los Angles restricted development in a flood prone canyon without providing for any real use of the land. The court held that even though the County acted to insure the public safety, the landowner suffered a loss for which the County was liable. Subsequently, the test for a "takings" case has become the ability to build and occupy at least one house on the site.
Certain land owners have sought to extend this takings claim to time period during which a local jurisdiction is reviewing an application over an extended period of time, arguing that the land is, in effect, unusable during that period. The court's view of that tact is unclear.
In recent court cases, local agencies have been restricted in the types of impact fees and other restrictions that they can impose on development projects by the need to prove a direct "nexus" or link between the particular project and the environmental impact that is to be mitigated by the fee or restriction. Local municipalities no longer have cart blanche to impose mitigation measures or impact fees without showing a direct connection between the project under consideration and the impacts that are being addressed.
Public participation in planning and zoning matters takes several forms. For long range planning purposes, public participation usually involves citizen advisory committees, which provide input and guidance through the development of comprehensive plans. These committees are typically appointed by local elected officials. Similarly, the public provides input into the adoption of zoning ordinances through town council hearings.
In the case of discretionary permits, abutting residents are notified in advance of public hearings and asked to provide testimony. Public Participation also takes the form of Design Review, where local authorities have established procedures whereby the design of a development project is subject to review and approval by a board composed of private citizens and design professionals.
Redevelopment Authorities or Agencies, such as the Boston Redevelopment Authority (BRA) or the Los Angeles Community Redevelopment Agency (CRA) are state chartered agencies within local government structures that are empowered to fight "urban blight" through redevelopment of aging, run-down neighborhoods. Such agencies have the power of eminent domain to condemn private property and incorporate it into new developments. These agencies also benefit from "tax increment financing", where additional tax revenue generated by new developments within "redevelopment project areas" does not accrue to the local government, but rather directly to the redevelopment authority.
The term transfer of development rights (or TDRs) refers to the ability in certain locations to transfer certain building rights between sites. In certain urban situations, cities have established a procedure where property owners can buy and sell development rights between properties. The intent of such regulations is typically to protect historic properties (called donor sites) and or to allow more intense developments within central business districts (called receiver sites).
In cases where the transfer development rights are authorized, the owner of a historic building may elect to use that procedure to sell access entitlement that may accrue to his property, to a neighboring development, rather than risk the loss of the historic structure to new development. Similarly, a developer of seeking to build more intensely than would normally be allowed, can look to properties which house older buildings, and seek to purchase excess rights and transfer them to increase the entitlement on his or her property.
In most local municipalities, building codes are based on a national model code. In the western United States, the prevalent model code is the Uniform Building Code developed by the International Council of Building Officials (ICBO). In the upper Midwest and Northeast, most local building codes are modeled on the BOCA (Building Officials and Code Administrators, International) code. In the south, many local building codes are based on the Southern Standard Building Code, prepared by the Southern Building Code Congress, Inc. (SBCCI). Each of these model codes sets standards for construction classification, occupancy classification, exiting and structural design criteria. Each of the codes also provides fire/life safety protection requirements for both new and existing buildings. Typically, each of the model codes is updated every three years.
Each locality adopts a model code, along with any local amendments designed to meet local needs. The building code is then administered by the local "Building Official" who is usually the head of the building department within the city government.
Certain cities and other jurisdictions maintain independent, proprietary codes. In Chicago, the building code was originally developed after the Great Chicago Fire in 1871. The city has maintained its own independent building and electrical codes continuously since that time. Similarly, South Florida maintains its own building code to deal with the special requirements imposed by designing in areas prone to hurricane forces. Other jurisdictions, such as the Reedy Creek Improvement District which encompasses all of the Walt Disney Co. properties near Orlando, Florida, also maintain independent building codes for specific purposes.
The Americans with Disabilities Act (ADA) is a federal regulation were intended to protect the civil rights of Americans with physical or other disabilities. The ADA was adopted in 1991 by Congress with the intent of providing equal and open access to all public facilities. The federal Justice Department, in conjunction with the federal Department of Housing and Urban Development, has published a series of guidelines for both new and existing construction which are intended to provide such open access to all public accommodations.
Unlike traditional building codes, the ADA is not enforced by local building officials. Enforcement of the ADA provisions through the courts is as a result of actions brought either by affected individuals or the Justice Department itself. Under the terms of the ADA, it is incumbent upon all landlords and building owners to provide free and open access to public accommodations where feasible. In practice, this means that barriers to entry to existing facilities must be removed or mitigated in some manner within a reasonable period of time, where the removal of such barriers is a feasible undertaking. At this time, there is very little in the way of court record to determine the exact extent of barrier removal required for compliance. For new construction, all facilities providing public accommodations must comply with the federal guidelines or face the potential for future litigation.
Most states and local jurisdictions have also adopted some form of criteria to provide for disabled access to existing structures and new construction. In California, these regulations take the form of Title 24 of the California Administrative Code (the State Building Code). Similar laws in have been enacted in other states and in most cases these laws parallel the federal requirements under ADA. There are however, some differences, and it is up to building owners and architects to highlight these differences and to provide compliance accordingly. As noted above, the local building official does not have jurisdiction to enforce the provisions of the ADA itself.
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