Land Use Can be a Stumbling Block for Development of Residential Projects

Local governments manage design, growth, and development typically through a comprehensive plan that can serve as a legally binding document that sets the overall goals, objectives, and policies to guide the local legislative body’s decision-making regarding the development of a region or community. However, how a local government manages this land use regulation can be a major challenge to developing residential projects.

?Municipal or county planning commissions help guide growth and development and set the framework for zoning regulation.?These local government organizations could be elected, or appointed officials and their focus is the development of studies, maps, and plans that recommend planned uses for land-based upon the physical, environmental, social, economic, and governmental characteristics, functions, services, and other aspects” of their geographic area.[i] Planning commissions are also responsible for the initial review of new zoning ordinances or amendments to existing zoning ordinances.[ii]

Ohio offers an example of how land use is regulated at the local government level.?Article XVIII, Section 3 of the Ohio Constitution, known as the home-rule amendment, allows municipalities to adopt a home-rule charter. This charter is the functional equivalent of a constitution and establishes in broad strokes how the municipality will be organized and how it will exercise its powers of self-governance, including planning and zoning regulation.[iii] ?Municipalities that have such charters are not required to follow the Revised Code with respect to enacting, amending, or administering zoning ordinances. Instead, they follow the procedures set out in their charter.[iv] When there is no charter or ordinance or a city’s charter is silent on zoning regulation, however, the city must follow the specifics of the law as established by Ohio Revised Code Chapter 713.[v] ?Zoning is a key component of the basic system of land use regulation. Zoning regulations provide for orderly growth, in furtherance of comprehensive plans; limit the interaction of incompatible uses; and protect the public health, safety, and welfare. The constitutionality of zoning regulation, as an exercise of police power, is established by the Supreme Court in Euclid v. Ambler Realty Corp.[vi] As a direct result of Euclid, most zoning in America creates housing subdivisions characterized by auto-dependent design and segregated land uses, resulting in massive suburban development. This conventional zoning creates neighborhoods with five key components:

·??????Housing subdivisions;

·??????Shopping canters, composed of single-use retail buildings, usually a single story with exclusive parking areas;

·??????Office/business parks, also single-use and served by exclusive parking areas;

·??????Civic institutions, such as churches, schools, and libraries, large and separated from other uses and served by exclusive parking areas; and

·??????Roadways connecting these separated land uses and designed exclusively for the use of automobiles.[vii]

Traditional zoning divides land within a jurisdiction into districts, or zones, with varying restrictions on uses that may be established and conducted in the different zones and standards (such as size and location of buildings, yard areas, and intensity) such uses must meet. The local legislative body may divide the municipality into districts of such number, shape, and area as may be best and within such districts, it may regulate and restrict the erection, construction, alteration, repair, or use of buildings, structures, or land.[viii]

Economic development projects that need to change the zoning at their site can achieve that zoning change using a zoning amendment, use variance, area variance or non-conforming use. A zoning amendment is the rezoning of a parcel (s) from one zoning category to another that better permits the intended use of the land. As an example, a site that is currently zoned to permit agriculture will need to be rezoned to a manufacturing or logistics category to permit that site to be transformed into an industrial park. Many regions have created special zoning categories for industrial parks that contain a full package of zoning mandates consistent with land use, building heights, roadway access, and other issues relevant to special industries such as logistics.

Changes to the use of property can also be achieved through the variance process. A use variance is a request to deviate from current zoning requirements, and it permits the owner to use the land in a manner not otherwise permitted by the zoning ordinance.[ix] ?Area variances are also permitted the depart from the zoning code for size and setback requirements. This type of variance is held to a lesser standard, and property owners seeking an area variance must only prove the zoning ordinance creates “practical difficulties” for the burdened parcel.[x] A variance is a specific waiver from the zoning ordinance and standards for awarding a variance focus on whether the property owner can demonstrate that existing zoning regulations present a practical difficulty in making use of the property.[xi] ?The process for awarding a variance is similar to that of gaining a zoning amendment.?A zoning variance application must be filed, and notice is provided to adjacent property owners.[xii] ?Public hearings by a city planning or development commission or a township zoning commission prior to the final decision by the city council or township trustees are held with recommendations provided by the planning or zoning commission and the final decision resting with the city council or township trustee.[xiii]

A nonconforming use is a permitted use of property that would otherwise be in violation of the current zoning ordinance.[xiv] The use is permitted or “grandfathered in” because the landowner was using the land or building for that use before the zoning ordinance became effective. the property almost always needs to have been continuously put to the non-conforming use to gain the permit.[xv] ?Finally, conditional use permits allow an otherwise non-permitted use of the property that the zoning code does not include.[xvi] Conditional use permits are usually granted at a public hearing before a political body, usually with the conclusion that the new use of the property will be in the public interest.[xvii]

Many successful zoning change applications start with an aggressive pre-application approach that begins with meeting the local government zoning staff and impacted community. Early completion of traffic and engineering studies pays big dividends later. Next, those seeking zoning changes obtain written service commitments for public sewer and water services, engineering approval of the legal description, and an outline of the economic model and time constraint for the project. The project may then be prepared to file a zoning application. The zoning application includes a statement of compliance to the comprehensive plan applicable to the area, detailed legal descriptions of all subareas, site plans, elevations, and construction materials palette. Project drawings illustrate how the proposed development “fits in.” Also, the zoning applicants provide certification of financial capability to execute the project if approved and a vicinity map showing the names of neighbors.

Notice is then provided to all persons mandated by the zoning ordinance/resolution, mailed to the tax mailing or street addresses, through publication in a newspaper of general circulation or posting a sign(s) on the property. Once the zoning application is received by the zoning official, the staff reviews for accuracy and completeness, and a hearing is held before a regional planning commission. A written recommendation to the jurisdiction’s planning commission is then created, and ultimately a vote is taken on the zoning by the city council or township trustees. However, in many jurisdictions, the citizens still retain the right to place a referendum on the ballot to overturn the zoning action by the city council.

Whether a project is in a rural township or urban city, local land use regulation is a critical hoop development projects must jump through. Please contact Dave Robinson at [email protected] if you need assistance with a local land use or other economic development project.

[i] See Ohio Attorney General Economic Development Manual, 2017.

[ii] Ibid.

[iii] See Ohio Attorney General’s Economic Development Manual, 2017.

[iv] Ibid.

[v] Ibid.

[vi] Euclid v. Ambler Realty Corp., 272 U.S. 375 (1926).

[vii] Andres Duany, Elizabeth Plater–Zyberk, and Jeff Speck, Suburban Nation: The Rise of Sprawl and the Decline of the American Dream (Union Square West, NY: North Point Press, 2000), 5–7.

[viii] Zoning Guide (Washington, DC, U.S. Department of Commerce, rev. ed. 1926, §1–§2).

[ix] https://realestate.findlaw.com/land-use-laws/zoning-changes-variances-and-more.html#:~:text=A%20variance%20is%20a%20request,requirements%20of%20the%20zoning%20ordinance.

[x] See Ohio Attorney General’s Economic Development Manual, 2017.

[xi] https://realestate.findlaw.com/land-use-laws/zoning-changes-variances-and-more.html#:~:text=A%20variance%20is%20a%20request,requirements%20of%20the%20zoning%20ordinance.

[xii] Ibid.

[xiii] Ibid.

[xiv] Ibid.

[xv] Ibid.

[xvi] Ibid.

[xvii] Ibid.