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ZONING WAS SUPPOSEDLY INVENTED in 1916 when a group of homeowners on New York’s Fifth Avenue wanted to prevent the encroachment of tenement housing into their neighborhood. Historians point out that the New Yorkers were probably more interested in protecting their property values than in the finer points of urban planning.
Zoning has evolved far beyond its original intent to become the most common method of implementing local land use policies in the United States. But the typical zoning ordinance is a tough read, full of technical jargon and legalese, and chopped up by constant revision and rewrites. To really understand a community’s vision of the future, you need to read the general plan, one of the most powerful and least understood documents which cities and counties are required to produce. The zoning ordinance is merely one of many tools which implement the general plan. In California, and in most parts of the country, the zoning ordinance, subdivision regulations, and even the public works program must be consistent with and subordinate to the general plan.
Zoning is based on the concept of separating land uses according to their impact. For example, zoning keeps slaughterhouses away from residential neighborhoods and places taverns and sex shops a respectable distance from churches. The concept is not new, but New York is credited with creating the first comprehensive zoning ordinance. After being challenged and sustained by the U.S. Supreme Court in 1926, zoning spread rapidly to cities and counties throughout the country. Some cities, such as Houston, Texas, have no zoning ordinance and some people say it hasn’t made much difference.
The typical zoning ordinance includes a written text together with a map dividing the entire city or county into zoning districts. Early zoning ordinances only regulated land use and the height, bulk and setbacks of buildings. But in the last 80 years zoning has evolved to address the entire range of local planning issues – traffic, parking, housing, historic and cultural resources, design, the natural environment, scenic corridors, advertising signs, noise, odors and hazardous materials.
Zoning districts are usually coded according to use and density. For example, R-1 usually denotes single family residential use, while R-2 and R-3 indicate higher densities such as duplexes and apartments. C usually denotes commercial use, I represents industrial use and OS usually means open space. Most zoning ordinances now include combining or overlay zones which lie on top of other zones, such as -PD for planned development, -FP for flood plain and -SC for scenic corridor. In Mendocino County, the -CZ combining zone means that a property is located within the state-wide California Coastal Zone.
Each zoning district has a list of principal permitted uses, but may also have other uses subject to “conditional use permits,” allowing local agencies to apply more restrictions. For example, in the City of Fort Bragg barber shops are permitted in the C-1 (neighborhood commercial) zone but retail nurseries in the same zone require a use permit. Cities and counties can also grant “variances” for such things as parking spaces and building setbacks.
Every zoning ordinance addresses “legally nonconforming uses” which existed before the ordinance was adopted. In general, zoning ordinances allow these uses to continue and even be rebuilt if destroyed by fire. However, most zoning ordinances require them to be brought up to code if the nonconforming use is discontinued for a period of time (usually one year).
The right of local governments to zone land falls within the “police” power which government exercises over all real property, along with the right of taxation, eminent domain and escheat (the right to assume title when an owner dies without a will or heirs). In recent years, property rights advocates have claimed that aggressive government land use regulations have gone beyond the police power and have entered the realm of “takings,” for which landowners are entitled to “just compensation” according to the Fifth Amendment of the U.S. Constitution. The takings issue has been a hot real estate topic for some time, and has been argued in Congress and in a series of landmark Supreme Court decisions.
On the other hand, many planning and conservation advocates say that zoning doesn’t go far enough. The critics claim that zoning is too political and unfairly applied to provide the long-term land use protections they seek. Partly due to the failure of zoning, over 1,000 private nonprofit land trusts have emerged across the nation which purchase (or accept donations of) land and conservation easements outright, holding the land in permanent trust for public benefit. Unlike zoning, conservation easements represent a specific private property right which is recorded with the deed and runs with the land.
Zoning critics claim that “spot zoning” is also a common practice, where cities and counties grant favorable zoning out of context with surrounding uses. Land use decisions can be highly political because of the power of local government to grant use permits, variances and zone changes.
Sociologists observe that zoning is symbolic of the over-simplified way that society deals with complex issues such as crime, social and cultural differences, environmental protection and the uneven distribution of wealth. Zoning segregates and isolates potential conflicts but does not resolve them.
Complex zoning ordinances have led to lengthy permit processes and high application fees, causing some people to give up in despair or proceed without permits. Local planning agencies often have to devote all their resources to permit processing, ignoring important advance planning issues. In rural areas, non-permitted uses such as second residential units have become quasi-legal through lack of enforcement, penalizing the honest applicant and enriching the scofflaw.
The “new urbanists” have a completely different argument against zoning. They say that mixed land use is a good thing. It helps create more livable, diverse and energy-efficient communities. Some planners say traditional zoning has promoted sprawl, discrimination and suburban wastelands, and has created isolated enclaves of wealth and poverty. Other planners advocate “impact zoning,” where land use controls are based on measurable performance standards such as noise, traffic and visual appearance, rather than arbitrary categories such as residential, commercial and industrial use.
Zoning still has a powerful influence on property value. Land is almost always valued at its highest and best use, and the first test is to determine what is legally permitted. Zoning has curbed land speculation, encouraged affordable housing, provided economic opportunities and protected environmental resources. But zoning is subject to change and broad interpretation, and can be unevenly and unfairly applied. Zoning will probably endure into the foreseeable future, supplemented by an expanding array of new and sophisticated land use regulation tools, which include the following.
- large lot zoning (common in Mendocino County, but promotes rural sprawl)
- performance zoning
- carrying capacity zoning
- service limits (for water and sewer districts, etc.)
- cluster zoning (also called planned unit development or PUD zoning)
- preservation districts (such as the Mendocino Historic Preservation District)
- dedications and set-asides
- setbacks and buffers (such as ocean bluff setbacks and riparian buffers)
- impact fees (for schools, water, sewer, roads, parks, etc.) * scenic corridor protection
- statewide zoning districts (such as the California Coastal Zone)
- urban growth boundaries (common in Sonoma County)
- building moratoriums (used by the City of Fort Bragg and Mendocino County)
- transfer and purchase of development rights (pioneered by San Luis Obispo County)
- preferential property tax assessments
- special assessment districts
- land banks and mitigation banks
- conservation easements
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Chet Boddy, Real Estate Appraisal, Sales and Consulting
43300 LR Airport Road, #59, Little River, CA 95456
707-937-4011, office
707-937-4818, fax
chet@chetboddy.com
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Copyright © 2002 Chet Boddy, All Rights Reserved
Chet Boddy is a Certified General Real Estate Appraiser, Realtor“ and real estate consultant who has lived on the Mendocino Coast since 1976. Look for this and other real estate columns on Chet’s web site at www.chetboddy.com
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