Agenda - Planning Commission - 12/01/2005

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expressly in LBCS or NAICS. To the'extent such uses are known, they must be defined and assigned to a zoning' district. The ordinance must allow many of them--adult uses in par- ticuJar--a place in the jurisdiction, allocating' sufficient [and area to pass judicial standards. It is impossible for the zoning' staff to anticipate all future uses. Technola§icai advances and market conditions wilt undoubt- edly create new ones. Accordingly, zoning dis- tdct re§ulations should inciude §oDd standards for making administrative interpretations for them. Jf they do not, the landowner will normally need to request a text amendment to permit the use in one or more of the existing zonin§ districts (or create a new district for the use). A use vadance is permitted in some states but. requires a standard of review that will not work for many sites. The interpretation standards can be tied to the land-use classification system along with performance standards sdch as trip seneration and compliance with appearance or community impact standards. Defining the uses. There are several ways to define uses, including directly in the zoning ordinance. This option expands the text of the zoning ordinance but minimizes the need to refer to external sources. Local gov- ernments can use a hybrid approach by defin- ing. those uses that will consume the maiority of staff time while leaving the others to exter- nal references such as LBCS definitions. A second option is to cross-reference L8C$. The ordinance should include a date and iocation for the sources so'that applicants can.obtain recent definitions. Code drafters should avoid the practice of cross-referencing, the "latest" edition of the LBCS document. Normally, future updates to L8C$ will not automatically become les'ally incorporated into the zoning. ordinance by reference because an external ~'eference would have the effect of amending ' the zonin'~ ordinance without following the procedures required by state zoning' .statutes. When rev{sions are made to LBC$ or other code references, a simple text amendment should be adopted that incorporates that edi- lion by reference. Ag'din, code drafters ~;~ould avoid "punt-. ins" uses that are controversial or difficult to understand. Failing. to define a use could expose the ordinance to invalidation based on total exclusion from the jurisdiction or vague- · ness. Due process requires that zonin§ rules be ascertainable to a reasonabl~ intelligent person. If the ordinance is too vag'ue to con- vey meaning, or if staff is g'iven unfettered dis- cretion to determine where the uses are per- mitred, some courts will strike down the zoning provisions. While the remedies vary between states, some courts will order that the use be permitted or award damn§es. ~ven if the penalty is simpty to amend the ordi- nonce to conform to state or federal [aw, [iris'a- lion is costiy and can undermine public confi- dence in zoning' administration. Distinctions between uses. The primary purpose of zoning district lists is to allocate uses to districts, Once compJeted, the jurisdic- lion must determine how they are permitted. Under most ordinances, uses permitted by right are entitled to be established with a simple building permit if they comply with the ordinance standards. Conditional uses, speciai uses, or special exceptions require a public hearing and discretionary review by zoning agencies such as the planning com- mission, board of zoning adiustment, or [e§islative bodies such as a county commis- sion or cit~ council. Even For by-tis'hi uses, the zoning re§uia- lions can ma~:e other distinctions, including standards for square footage or scale,.desig.n, ' parking, landscaping and buffering', or similar standards. Code drafters can make the distinc- tions in the use matrix, in a separate section thai includes dimensional standards, or in both. 74 ZONING PRACTICE 09.05 AMERICAN PLANNING ,~SSOClATION J page