Agenda - Planning Commission - 04/01/2004

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The reason to rehearse the obvious, then - that zoning controls use, shape, and bulk - is to assess whether planners need to think outside the box we [abe[ zoning to secure a better built environment, or whether tweaks or iolts to the existing zoning frame- work are adequate to the task. To some, the trio structure is outmoded, even retrograde, and they argue instead for a whole new approach and name for how planners should regulate land use. To others, however, the inadequacies of zoning rest more on prob- lems with the music the trio has been given to piay, rather than on the instrumental structure of the trio itself. Keep in mind that the trio can play Mozart, Beethoven, Stravinsky, or Stockhausen. Those knowl. edgeable about music understand just how different the outcome can be, usin§ the same instrumental structure. Those familiar with the metaphor of architecture as frozen music can smile still more. WHO'S GOT TH£ POWER? An initial question for cities is whether they can innovate with new zoning approaches on their own authority, or whether they need express authorization in advance from their state government. In legal terms, the issue [.s whether the city is located in a Oiilon's Rule state (named after a judge who wrote about the subject) or a home-rule state. In some cases, the question is whether the city has its own charter (San Francisco, for example). Within a Oii[on's Rule state (Virginia, for example), the c[[-y must find within state lo§is- lotion, normally the state's zoning act, lan- gua§e that expressly empowers the city to do the type of zonin§ it wants to do. Thus, a cer- tain statutory provision will state that IocaI governments may employ incentive zoning or planned unit developments, and cities follow that express provision to the letter, in home- rule states, however, local governments may think up and enact zoning techniques on their own authority, even in the absence of express state legislative language, as long' as the~e is no state language expresslv or implicitly for- bidding what they seek to do. Recent scholarship has suggested that Dillon's Rule states do not restrict local govern- ment as much as commonly believed, and home-rule stales do not liberate as much as THEORY & PRACTICE In this issue, Zoning Practice introduces a new dimension to our efforts to bring readers the newest and best material on zonin§. Periodically, we shall publish ref- ereed articles that have undergone review by selected panels of zonin§ experts in order to bring the best academic knowl- edge of zoning to bear on the most practi- cal issues facing zoning practitioners. Although it may eme.rge in time, we have established no firm schedule for the fro- quency or timing of publication of these refereed articles. Our foremost §aa[ is to marry academic wisdom with practical issues [n order to enhance both. We wel- come contributions and inquiries from potential authors, while we will also con- tinue, in most issues, to publish the hi§h- ty practical, non-refereed articles that have long been our trademark. commonly hoped. Nonetheless, in theory, a plannin§ department has more leeway to inno- vate within a home-rule rather than within a Oillon's Rule state. In practice, advice given by in-house planning department counsel or a city's lo§al department is often overly conserva- tive, urging planners within either a Oil[oh's or home-rule state to hew closely to state legisla- tion and not do anything unless expressly authorized. Since such lawyers, especially those outside the planning department, are more concerned with taw, and less interested in policy, they have Iii'tie to gain and much to lose by §oin§ out on the lo§al innovation limb. From a purely legal point of view, indeed, it might be easiest to say no, and all that suffers is innova- tion and the potential for a better way of secur- in§ an improved built environment. This serves as a reminder, then, that legal advice may be overly restrictive over a city's ability to innovate in the zoning area, one of the primary subjects of this article. A broad theoretical debate with deeply practi- cal consequences is whether zoning should be grounded within a rule-based or discre- tion-based framework. Rule.based zoning, also known as "matter-of-right" or "as-of- right" zoning, announces by text and map what an owner can and cannot do with her parcel. To the extent they are necessary, approvals are ministerial, delivered by per- sonnet often outside the plannin§ department who determine only that the proposed devel- opment meets the express terms of the text and map. The onlypossibility for chan[~e is a zoning amendment or variance. Discretion- based zoning, on the other hand, vests case- by-case, substantive decision-makin§ power in the hands of city planning and zonin§ offi- rials and staff,'who determine, proposal by proposal, and on the individual merits, what an owner may do. Interesting[y, this debate ori§inaily rep- resented the key differentiatin§ factor between the b~vo great planning regulatory regimes in the world: the German/American zoning scheme (rule-based) and the British town planning scheme (discretion-based). Under Eh§land's Town and Country Planning Act of ~947, and successor acts, applicants need to obtain "plannin§ permission" for most deve{opment activities, whereas start- dard American zoning states the rules in the abstract and in advance. Today, the British system has moved toward the as-of-right, rule-based model, while the American model has incorporated an enormous amount of dis- cretion. They meet somewhere in the midd[e of the pond. A review of American zoning shows that no home-§rown system is purely rule-based or discretionary. Sometimes, smaller proiects and other discrete categories escape discre- tionary review. Sometimes, an ordinance on its face may appear rule-based, but in fact no one can possibly build under the rules, so discretionary tri§gers are consistently pulled. Sometimes, the variance-granting body gives out so many variances; often ille§ally if one takes seriously the ~egal standard for a vari- ance, that their aggre§ation be§ins to subvert the basic plan suggested by the otherwise as- of-right zoning. What are the generic arguments for and against rule or discretion? The principal ar§u- merit for the rule-based approach is that it pro- vides predictability and terra nb/for developers and ienders who, over all else, prize these virtues unless the devetope~ p~edictably and certainly cannot develop anythin§. Indeed, a predictable and certain zonin§ district allowing ZONING PRACTICE o~.o~. Am~E~IC~N PLANNiN[. ASSOCIATION