Agenda - Planning Commission - 12/05/2002

Home

conditional use. But if it is not desired char an e.,dsting use be duplicated in the district, but only that pree.'dsting instances be protected, chis should be addressed in the nonconforming uses provisions and not in the list of perm:fred or conditional uses. Some ordinances rely too much on special and/or conditional uses, Most land uses should be as-of-right, subject to compliance with clear and objective standards and criteria for that particular use category or zoning district. Discretionary approvals should be reserved for unique uses that defy rebmlation by objective standards, The routine employment of special uses, especially without (or with few) standards or criteria, opens up both individual zoning decisions and the zoning ordinance provision itself to constitutional challenges as being arb:wary and capricious. Even where such a challenge would not necessarily succeed, the uncertainty to landowners and citizens alike created by discretionary and/or standard/ess zoning review should be avoided. A related issue of discretion arises in the area ofvarlances. Every stare has established a standard, usually stared expressly in the enabling stature, for when a variance may or may not be granted. The near-universal standard requires the e:dsring regulation to effect an "undue hardship" upon the landowner unless the requested variance is granted. While zoning' ' ordinances almost always include this variance standard, nor all boards of adjustment or boards of zoning appeal adb. ere consistently to dar standard when making decisions. Instead, many apply a greater degree of discretion. This is more a problem of implementing the zoning ordinance, rather than of its content, bur a [oral government can indicate to its ofiScials that it wants the standard followed by including language staring that the standard must be strictly adhered to and that any variance not founded upon d~e standard is void. Issues of Discrimination Another substantive legal problem in the establishment of use districts arises from permitting only or mosdy single-family detached houses on large lots, with houses on smaller lots, townhouses, duplexes, and apartment buildings either not permitted or severely restricted in number and location. Local officials and. e.,dsting residents may adopt such a policy in order to preserve the e~sting character of the community as they perceive ir, However, such policies may be deemed exclusionary zoning and therefore a violation of the equal protection clause of the federal and stare Constitutions. While ir is admirced/y not easy to challenge a zoning ordinance as exclusionary, local governments have been found to'have violated the consrirution on such a basis (Dews u Sunnyvale, (N.D. Tex., July 31, 2000)). An unsuccessful challenge can still cause a. local government great expense and damage to its reputation. This is above and beyond the fact that exclusionary zoning is bad public policy, if overgeneralized beliefs about the residents of smaller houses, rownhomes and duple.xes, and apartment buildings, which often form the underlying impetus for exclusionary policies, were ever true in some earlier dine, they make Iitde sense in light of today's demographic changes. The days should be long past when a respected public official can stare that apartment buildings are "a mere paras:re" to detached houses. (Village of Euclid v. Amber Real{y, 272' U.S. 365 (1926), quoting &ate v. City of New Orleans, 154 La. 271,283; 97 So. 440, 444.) Similarly, some zoning ordinances restrict or prohibit manufactured a. nd modular housing. The legal foundation often cited for this restriction is that the local building, fire, and John Bredin is an attorney in.Chicago who focuses on land use and zoning. 2 plumbing inspectors cannot see inside the walls, floors, and ceilings of the structure before ir is completed ar the factory; which is usually in a different-jurisdiction. Often, however, the reason for the restriction is char existing landowners perceive all non-scratch-built housing as inferior and believe that allowing ir to be sited in their neighborhood will negatively affect their own land. values: The flaw in this perception is that much of this nonrraditional housing is nontraditional in construction method only; there is little difference between a modular house and · tract house constructed equally en masse but onsite. In response to the inspection concern, the U.S. Department. of Housing and Urban Development has implemented a national building code and inspection program for manufactured housing. ALso, several states (about 20) have protected manufactured housing in their zoning enabling legislation, providing either that local ordinances cannot discriminate between manufactured housing and other housing, that manufactured housing must be allowed in single-family residential districts on the same basis as other housing or, at a minimum, that manufactured housing nor be excluded from the jurisdiction (that is, ir must be a perm:fred use in some residential zone). These laws typically provide char a manufactured dwelling, to be protected, must be on a permanent foundation, have at least a minimum (that is, nor flat) roof pitch, be sided or covered in certain materials and not others, and other aesthetic prescriptions intended to make manufactured housing equivalent to traditionally builr housing. Even where the state has not extended such protection, ir is good policy to follow the lead of these statutes in zoning ordinances and either accept manufactured and modular housing on an equal footing with traditionally built dwellings or at least provide some residential districts where manufactured housing may realistically be built (that is, where they axe a permit'ted use nor subject ro undue restrictions or requirements). Some jurisdictions still have unduly restrictive provisions on home occupations. There is a substantial differenc~ among the impacts of an author writing in a den in a house, a hairdresser with a dozen or so clients seen in the living room e~ch day, and a mechanic who rebuilds old cars in his garage. Yet many ordinances treat all home occupations as suspect, either prohibiting or stricdy regulating all without distinction. This approach is especially problematic in the information age, where many people perform some (if not most) of their work from home by computer, telephone, and fax. Generally, home occupations that are true accessory uses to a primary dwelling use, do not involve nuisances (noise, dust and dirt, vibrations, fumes, err.), and have neither employees nor customers visiting the home.workplace should be permitted absolutely. The licensing and regulation of home occupations with employees or customers on premises, which, must still be accessory'to a primary dwelling use, should be reasonably tailored to regulate the impact of the employee or customer traffic. This can be done by limiting the number of employees, the number of customers that may visit in a day, and the hours during which the business is open to' customers and. deliveries: Needless to say, home occupations that, by their size or scope, are no. longer accessory to a primary residential or dwelling use, and occupations that constitute a nuisance, may and should be prohibited. Standards and Procedures it should be clear in reading the bulk and dimensional standards applicable in a district if the standards apply To all uses in the district or only to rhe predominant use. Fur example,, does the [or-size standard in a residential zone apply I I I I ! I I i, i I I I I ! I I I !