Agenda - Planning Commission - 12/05/2002

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NOVF. MBER 2002 Common Problems with Zoning Ordinances by fohn B. Bredin Alocal government's zoning ordinance is an important part of its land development policy implementation. Zoning ordinance provisions--indeed, entire zoning ordinances--are often adapted as much as possible from existing ordinances because of this importance and the relatively long legal and political history of zoning in the U.S. While this efficiency uses ex/sting language tested both in the courts and in practice, it also rencb to perpetuate errors in procedure and substance. This does not mean that all zoning ordinances and ordinance provisions should be drafted completely from scratch, but ohly that ex/sting and proposed language must be read critically. The ordinance should conform to law, faithfully implement the local government's land-use policy, and be reasonably understandable to the citizens and landowners affected by it and to the officials who enforce it. The drafter should always know why he or she is using. particular language, and not parrot it solely because an existing ordinance or model uses the same language. Clarify of Language There are some general concerns that one must anticipate in drafting or editing a zoning ordinance';i Legalese is a much-reduced problem now that law schools emphasize drafting in plain language, but it still occasionally slips into mod&n ordinances and amendments. The drafter should always know why he or she is using pamcular language, and not parrot it solely because an existing ordinance or model uses the same language. Vague language should be avoided both to deter legal challenges and co make the ordinance a practical guide to which development and activities are permitted or nor permitted. On the other hand, broad language in purpose statements is not only acceptable but necessary. The numbering system of a zoning code should be kept consistent, and the assignment of new section or chapter numbers to amendments should be done with this goal firmly in mind. It should be clear to the reader which citations are internal (to other provisions in the zoning ordinance), to other ordinances of the jurisdiction, and to the enabling statutes. Definitions are one area where drafting mistakes can have far- reaching effects. Key terms should be defined. Similarly, terms of art in the zoning and land-use field should be used and defined consistently with the general practice instead of creating an idiosyncratic definition that confuses trained users such as officials, developers, and attorneys. The inclusion of substantive regulatory AMERICAN PLANNING ASSOCIATION provisions in definitions should be avoided; otherwise, reading the substantive chapters of the ordinance alone would be inadequate to determine the applicable regulations. Categorizing Uses Use categories have problems similar to those of definitions: They should be clear, use common terminology where possible, and avoid including substantive provisions: Use categories should be relatively broad definitions that group together similar uses of similar impact, rather than long enumerations of particular businesses and activities. For example, ~retail sales" is preferable to "clothing stores, shoe stores, haberdashers, grocery stores, drug stores," as retailers of the same store size tend to have the same impacts. The size of retail sales uses (for example), which 5s relevant to ihapact; can be addressed in other aspects of zoning districts such as dimensional standards. The permitted and special uses in the various use districts should be set forth in a table, rather than in long lists of the .- uses for each district. A single table is not. only clearer to read than separate lists; it allows users to compare at a glance the'uses for each district. While single-use districts serve a vital purpose (for example, heaW industrial districts to separate high-nuisance uses), replacing strict separation of residential and commercial (retail and office) uses with one or more mixed-use districts, where the residential and commercial uses are of compatible scale and impact, should be considered. Some zoning ordinances appear to base the list of .uses permitted in a given use district, with or without conditions, on ex. isdng uses. This becomes obvious when one or a ~'ew of the uses do not "fir" with (not necessarily that they are incompatible with) the other permitted or conditional uses. When listing the uses permitted in a use district, the question that should be asked is, ~Whar uses do we want built or commenced there'in the future?" If it is decided that a given use should be encouraged in the district, then. it should be a permitted or . . . about this article. Join us Online! 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