'Zoning' is a term used in
urban planning for a system of
land-use regulation in various parts of the world, including North America, the United Kingdom, and Australia. The word is derived from the practice of designating permitted uses of land based on mapped zones which separate one set of land uses from another. Zoning regulations fall under the
police power rights governments may exercise over
real property.
Definition
Theoretically, the primary purpose of zoning is to segregate uses that are thought to be incompatible; in practice, zoning is used as a permitting system to prevent new development from harming existing
residents or
businesses. Zoning is commonly controlled by local governments such as
counties or
municipalities, though the nature of the zoning regime may be determined by state or national planning authorities. In Australia, land under the control of the Commonwealth (Federal) government is not subject to state planning controls. The
United States and other federal countries are similar.
Zoning may include regulation of the kinds of activities which will be acceptable on particular
lots (such as open space, residential,
agricultural,
commercial or
industrial), the densities at which those activities can be performed (from low-density
housing such as single family homes to high-density such as
high-rise apartment buildings), the height of buildings, the amount of space structures may occupy, the location of a building on the lot (
setbacks), the proportions of the types of space on a lot (for example, how much
landscaped space and how much
paved space), and how much
parking must be provided. The details of how individual planning systems incorporate zoning into their regulatory regimes varies though the intention is always similar. For example, in the state of
Victoria, Australia, landuse zones are combined with a system of planning scheme overlays to account for the multiplicity of factors that impact on desirable urban outcomes in any location.
Most zoning systems have a procedure for granting
variances (exceptions to the zoning rules), usually because of some perceived hardship due to the particular nature of the
property in question.
Types of residential zones would be R1 for
single-family homes, R2 for
two-family homes, and R3 for
multiple-family homes.
Origins and history
Special laws and regulations were long made, restricting the places where particular businesses should be carried on. Specific State statute prohibited all commercial activities along
Eastern Parkway (Brooklyn) in the 1860s, setting a trend for future decades.
New York City adopted the first zoning regulations to apply city-wide in 1916 as a reaction to construction of The
Equitable Building (which still stands at 120 Broadway). The building towered over the neighboring residences, completely covering all available land area within the property boundary, blocking windows of neighboring buildings and diminishing the availability of sunshine for the people in the affected area. These laws, written by a
commission headed by
Edward Bassett and signed by
Mayor John Purroy Mitchel, became the
blueprint for zoning in the rest of the country, partly because Bassett headed the group of planning lawyers which wrote
The Standard State Zoning Enabling Act that was accepted almost without change by most states. The effect of these zoning regulations on the shape of skyscrapers was famously illustrated by architect and illustrator
Hugh Ferriss.
By the late 1920s most of the nation had developed a set of zoning regulations that met the needs of the locality. New York City went on to develop ever more complex set of zoning regulations, including
floor-area ratio regulations,
air rights and others according to the density-specific
needs of the neighborhoods.
Among large populated cities in the United States,
Houston is unique in having no zoning
ordinances. Houston voters have rejected efforts to implement zoning in 1948, 1962 and 1993.
Types
Zoning codes have evolved over the years as urban planning theory has changed, legal constraints have fluctuated, and political priorities have shifted.
[1] The various approaches to zoning can be divided into four broad categories: Euclidean, Performance, Incentive, and Design-based.
Euclidean
Named for the type of zoning code adopted in the town of
Euclid, Ohio, Euclidean zoning codes are by far the most prevalent in the United States, used extensively in small towns and large cities alike. Also known as "Building Block" zoning, Euclidean zoning is characterized by the segregation of land uses into specified geographic districts and dimensional standards stipulating limitations on the magnitude of development activity that is allowed to take place on lots within each type of district. Typical types of land-use districts in Euclidean zoning are: residential (single-family), residential (multi-family), commercial, and industrial. Uses within each district are usually heavily prescribed to exclude other types of uses (residential districts typically disallow commercial or industrial uses). Some "accessory" or "conditional" uses may be allowed in order to accommodate the needs of the primary uses. Dimensional standards apply to any structures built on lots within each zoning district, and typically take the form of setbacks, height limits, minimum lot sizes, lot coverage limits, and other limitations on the building envelope.
The zoning ordinance of Euclid, Ohio was challenged in court by a local land owner on the basis that restricting use of property violated the
Fourteenth Amendment to the United States Constitution. Though initially ruled unconstitutional by lower courts, the zoning ordinance was upheld by the U.S. Supreme Court in
Village of Euclid, Ohio v. Ambler Realty Co. (1926). See below for more information.
Euclidean zoning is preferred by many municipalities due to its relative effectiveness, ease of implementation (one set of explicit, prescriptive rules), long-established legal precedent, and familiarity to planners and design professionals. Euclidean zoning has received heavy criticism, however, for its lack of flexibility and institutionalization of now-outdated planning theory (see below).
Performance
Also known as "Effects-based planning", Performance Zoning uses performance-based or goal-oriented criteria to establish review parameters for proposed development projects in any area of a municipality. Performance zoning often utilizes a "points-based" system whereby a property developer can apply credits toward meeting established zoning goals through selecting from a 'menu' of compliance options (some examples include: mitigation of environmental impacts, providing public amenities, building affordable housing units, etc.). Additional discretionary criteria may also be established as part of the review process.
The appeal of Performance Zoning lies in its high level of flexibility, rationality, transparency and accountability. Performance Zoning avoids the arbitrary nature of the Euclidian approach, and better accommodates market principles and private property rights with environmental protection. However, performance zoning can be extremely difficult to implement and can require a high level of discretionary activity on the part of the supervising authority. For this reason performance zoning has not been widely adopted in the USA, and is usually limited to specific categories within a broader prescriptive code when found.
New Zealand's planning system, however, is grounded in effects-based Performance Zoning under the
Resource Management Act 1991.
Incentive
First implemented in Chicago and New York City, incentive zoning is intended to provide a reward-based system to encourage development that meets established urban development goals. Typically, a base level of prescriptive limitations on development will be established and an extensive list of incentive criteria will be established for developers to adopt or not at their discretion. A reward scale connected to the incentive criteria provides an enticement for developers to incorporate the desired development criteria into their projects. Common examples include FAR (floor-area-ratio) bonuses for affordable housing provided on-site and height limit bonuses for the inclusion of public amenities on-site. Incentive zoning has become more common throughout the United States during the last 20 years.
Incentive zoning allows for a high degree of flexibility, but can be complex to administer. The more a proposed development takes advantage of incentive criteria, the more closely it has to be reviewed on a discretionary basis. The initial creation of the incentive structure in order to best serve planning priorities can also be challenging and often requires extensive ongoing revision to maintain balance between incentive magnitude and value given to developers.
Form-based
Form-based zoning relies on rules applied to development sites according to both prescriptive and potentially discretionary criteria. These criteria are typically dependent on lot size, location, proximity, and other various site- and use-specific characteristics.
Design-based codes offer considerably more flexibility in building uses than do Euclidean codes, but, as they are comparatively new, may be more challenging to create. Design-based codes have not yet been widely adopted in the United States. When form-based codes do not contain appropriate illustrations and diagrams, they have been criticized as being difficult to interpret.
One example of a recently adopted code with design-based features is the
Land Development Code adopted by
Louisville, Kentucky in 2003. This zoning code creates "form districts" for Louisville Metro. Each form district intends to recognize that some areas of the city are more suburban in nature, while others are more urban. Building setbacks, heights, and design features vary according to the form district. As an example, in a "traditional neighborhood" form district, a maximum setback might be 15 feet from the property line, while in a suburban "neighborhood" there may be no maximum setback.
Constitutional challenges
There have been notable legal challenges to zoning regulations. In 1926 the
United States Supreme Court upheld zoning as a right of U.S. states (typically via their cities and counties) to impose on landowners. The case was ''
Village of Euclid, Ohio v. Ambler Realty Co.'' (often shortened to ''Euclid v. Ambler''),
272 U.S. 365 (1926). The village had zoned an area of land held by Ambler Realty as a residential neighborhood. Ambler argued that it would lose money because if the land could be leased to industrial users it would have netted a great deal more money than as a residential area. Euclid won, and a
precedent was set favorable to local
enforcement of zoning laws.
The Euclid case was a
facial challenge, meaning that the entire scheme of regulation was argued to be unconstitutional under any set of circumstances. The United States Supreme Court justified the ordinance saying that a community may enact reasonable laws to keep the pig out of the parlor, even if pigs may not be prohibited from the entire community.
Since the Euclid case, there have been no more facial challenges to the general scheme. Beginning in 1987, several United States Supreme Court cases ruled against land use regulations as being a
taking requiring just
compensation pursuant to the
Fifth Amendment to the Constitution. ''
First English Evangelical Lutheran Church v. Los Angeles County'' ruled that even a temporary taking may require compensation. ''
Nollan v. California Coastal Commission'' ruled that permit conditions that fail to substantially advance the agency's authorized purposes require compensation. ''
Lucas v. South Carolina Coastal Council'' ruled that numerous environmental concerns were not sufficient to deny all development without compensation. ''
Dolan v. City of Tigard'' ruled that conditions of a permit must be roughly proportional to the impacts of the proposed new development. ''
Palazzolo v. Rhode Island'' ruled property rights are not diminished by unconstitutional laws that exist without challenge at the time the complaining property owner acquired title.
However, the landowner victories have been mostly limited to the U.S. Supreme Court despite that Court's purported overriding authority. Each decision in favor of the landowner is based on the facts of the particular case, so that regulatory takings rulings in favor of landowners are little more than a landowners' mirage. Even the trend of the U.S. Supreme Court may now have reversed with the 2002 ruling in
Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency. Justice
Sandra Day O'Connor, who had previously ruled with a 5-4 majority in favor of the landowner, switched sides to favor the government that had delayed development for more than 20 years because of the government's own indecision about alleged concerns to the water quality of
Lake Tahoe.
Specific zoning laws have been overturned in some other U.S. cases where the laws were not applied evenly (violating
equal protection) or were considered to violate
free speech. In the
Atlanta suburb of
Roswell, Georgia, an
ordinance banning
billboards was overturned in court on such grounds. It has been deemed that a municipality's sign ordinance must be content neutral with regard to the regulation of
signage. The City of
Roswell, Georgia has now instituted a sign ordinance that regulates signage based strictly on dimensional and aesthetic codes, rather than an interpretation of a sign's content (i.e. use of colors, lettering, etc.).
On other occasions, religious institutions sought to circumvent zoning laws, citing the
Religious Freedom Restoration Act of 1993 (RFRA). The Supreme Court eventually overturned RFRA in just such a case, ''
City of Boerne v. Flores''
521 U.S. 507 (1997). However, Congress enacted the
Religious Land Use and Institutionalized Persons Act (RLUIPA) in 2000 in an effort to correct the constitutionally objectionable problems of the RFRA. In the 2005 case of
Cutter v. Wilkinson, the
United States Supreme Court held RLUIPA to be constitutional as applied to institutionalized persons, but has not yet decided RLUIPA's constitutionality as it relates to religious land uses.
Limitations and criticisms
Land-use zoning is considered by some to be an important tool in the treatment of certain social ills, a part of the larger concept of
social engineering. Criticism of zoning is widespread, however, and its effectiveness as a tool for promoting or discouraging social change is debatable. The voters of Houston, Texas have rejected
implementation of zoning districts through referendums held in 1948, 1962 and 1993. The lack of zoning has led to high levels of multi-racial residential integration throughout Houston.
Circumventions
Existing development in a community is generally not affected by the new zoning laws because it is "
grandfathered"(or ''legally non-conforming''), meaning the prior development is exempt from compliance. Consequently, zoning can only affect new development in a growing community. In addition, if undeveloped land is zoned to allow development, that land becomes relatively expensive, causing developers to seek land that is not zoned for development, and then seek rezoning of that land themselves. Communities generally react by not zoning undeveloped land to allow development until a developer requests rezoning and presents a suitable plan. Development under this practice appears to be piecemeal and uncoordinated. Communities try to influence the timing of development by government expenditures for new streets, sewers and utilities usually desired for modern developments. However, the development of interstate
freeways for purposes unrelated to planned community growth, creates an inexorable rush to develop the relatively cheap land near interchanges.
Property tax suppression measures such as
California Proposition 13 have led many communities to disregard their comprehensive plans and rezone undeveloped land for retail establishments, desperate to capture
sales tax revenue.
Aesthetic
More prescriptive zoning codes tend to give rise to a phenomenon known colloquially as "Design by Zoning", or DBZ. Jurisdictions with highly prescriptive zoning codes can force the uniform adoption of (often unintentionally negative) aesthetic qualities in all new construction due to the inflexibility of the zoning ordinances. This can lead to urban environments dominated by apparently nonsensical or awkward building configurations. An example of this has occurred in the application of the increasingly-complex low-rise multi-family residential code in Seattle, Washington.
Social
In more recent times, zoning has been criticized by urban planners and scholars (most notably
Jane Jacobs) as a source of new social ills, including
urban sprawl, the separation of homes from employment, and the rise of "
car culture." Some communities have begun to encourage development of denser, homogenized, mixed-use neighborhoods that promote walking and cycling to jobs and shopping. However, a single-family home and car are major parts of the "
American Dream" for
nuclear families, and zoning laws often reflect this: in some cities, houses that do not have an attached
garage are deemed "
blighted" and are subject to
redevelopment. Movements that disapprove of zoning, such as
New Urbanism and
Smart Growth, generally try to reconcile these competing demands. New Urbanists in particular try through creative urban design solutions that hark back to 1920s and 1930s practices. Late in the 20th century, New Urbanists have also come under attack for encouraging sprawl and for the highly prescriptive nature of their model code proposals.
Exclusionary
Zoning has long been criticized as a tool of racial and socio-economic exclusion and segregation, primarily through minimum lot-size requirements and land-use segregation (sometimes referred to as "
environmental racism"). Early zoning codes were often explicitly racist.
[2]
Exclusionary practices remain common among suburbs wishing to keep out those deemed socioeconomically or ethnically undesirable: for example, representatives of the city of
Barrington Hills, Illinois once told the Real Estate section of the ''
Chicago Tribune'' that the city's 5-acre minimum lot size helped to "keep out the riff-raff."
Racial
Numerous U.S. States created racial zoning laws early on, however such laws were ruled out in 1915 when the U.S. Supreme Court ruled that such laws interfered with the property rights of owners
[3]. There were repeated attempts by various states, municipalities, and individuals since then to create zoning and housing laws based on race, however such laws were eventually overturned by the courts. The legality of all discrimination in housing, by public or private entities, was ended by the Fair Housing Act (Title VIII of the Civil Rights Act of 1968).
[4]
Despite such rulings, many claim that zoning laws are still used for the purpose of racial segregation.
[5]
Housing affordability
Zoning has also been implicated as a primary driving factor in the rapidly accelerating unaffordability of housing in urban areas.
[6] According to critics, as much as half of the price paid for housing in some jurisdictions is directly attributable to the hidden costs of restrictive zoning regulation.
In 1969
Massachusetts enacted Chapter 40B, a so-called
anti-snob zoning statute. Under this law, developers may circumvent local zoning boards in municipalities with less than 10% affordable housing. Similar laws are in place in other parts of the United States, though their effectiveness is disputed.
References
1. Holm, Ivar (2006). ''Ideas and Beliefs in Architecture and Industrial design: How attitudes, orientations, and underlying assumptions shape the built environment''. Oslo School of Architecture and Design. ISBN 8254701741.
2. June Manning Thomas provides a survey of the literature concerned with this particular critique of zoning
3. http://www.stetsonkennedy.com/jim_crow_guide/chapter6_1.htm
4. http://www.hum.wa.gov/FairHousing/History.htm
5. http://www.mountainx.com/opinion/2007/zoning_promotes_racism_and_sprawl
6. Glaeser, Edward L. and Gyourko, Joseph, The Impact of Zoning on Housing Affordability, 2002
See also
Further reading
★ Bassett, E.M. ''The master plan, with a discussion of the theory of community land planning legislation.'' New York: Russell Sage foundation, 1938.
★ Bassett, E. M. ''Zoning.'' New York: Russell Sage Foundation, 1940
External links
★
New York City Department of City Planning - Zoning History
★
Zoning and land use discussion forum on ''Cyburbia''
★
Schindler's Land Use Page (Michigan State University Extension Land Use Team)
★
Land Policy Institute at Michigan State University
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