Agenda - Planning Commission - 05/05/2016

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Minimizing Reliance on Discretionary Approvals By Lane Kendig Why is minimizing the reliance on discretionary approvals a critical goal in ordinance writing? The primary reasons are that discretionary ap- provals are time-consuming and costly, and discretionary review processes often culminate. in uncertain, inconsistent, and unpredictable decisions. Elected officials want zoning to achieve specific goats. Citizens want to know what can happen next to their home. Develop- ers want to read the zoning code and prepare a plan that meets the standards and can be approved. Discretionary approvals fail all these desires, and it stands to reason that a failed zoning tool should be abandoned. This article explains how communities can use existing zoning tools to minimize reli- ance on discretionary approvals. The following sections explain how discretionary approvals came to be widespread in zoning codes before unpacking specific alternatives to variances, conditional use approvals, and discretionary planned unit development (PUD) processes. THE DEVELOPMENT OF DISCRETIONARY APPROVALS The first zoning ordinances were Euclidian, in reference to the Euclid v. Ambler Realty case in which the U.S. Supreme Court upheld zoning. A key virtue of Euclidian zoning was its predict- ability. Uses were either permitted by right or not permitted in a district. The intensity of development was locked in by a minimum lot area and minimum frontage. A property owner could look at the zoning map and be certain what would happen on the adjoining property. A developer wanting to build a specific use could determine if it was permitted on a prop- erty and the standards that must be met. Although they are certain, lot area, front- age, and setbackstandards also create rigidity problems. If a physical feature like a creek is present, the setbacks might make it impossible to build a reasonable dwelling. The drafters recognized that unbuildable lots were a poten- tially fatal legal issue. The variance was intro- duced to address the issue of the unbuildable lot before it reached the courts. The variance spelled out a procedure that allowed the zon- ing"board to vary standards to make a property buildable. The variance procedure was the first discretionary approval. The failure of conditional approval is caused by subjective decision making and public hearings. Everybody benefits if regulations are predictable. Conditional Uses As zoning spread it was found that some uses presented classification problems. Emergency services, sewer plants, and electrical substa- tions are examples of essential uses in the community that have high nuisance potential. Logically these uses would be permitted in industrial or commercial districts. Neverthe- less, the service characteristics of these uses occasionally required them to be located in residential areas, despite their nuisance poten- tial. Another characteristic is that these uses were rare and not frequently proposed. There needed to be a classification be- tween permitted or prohibited. Variances were not an appropriate mechanism because al- lowing a prohibited use to be built in a district totally destroyed the certainty of uses in the district. Nearly all states prohibit use variances. The procedure worked well for variances, so a new procedural solution for difficult uses was developed. The use table was modified so there were three types of uses: permitted, con- ditional, and prohibited. Conditional uses are different from variances. Variances changed or relaxed the regulations to allow a permitted use to be built on the site. Conditional uses are associated with potential nuisances, so the conditional use approval process allows the zoning board to impose conditions that add standards to Develope s describe the conditional use process as trying to kick a field goal while the o posts ove .,.t'; at posts are being moved. � ,.� -,_ ZONINGPRACTICE 4.16 AMERICAN PLANNING ASSOCIATION Ipage 2