Rethinking Conventional Zoning
by Joel S. Russell
Land use attorney and consultant Joel Russell examines the failings of conventional zoning, and explores a way of incorporating greater flexibility into local zoning.
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The purpose of this article is to suggest how zoning and land use regulation can be improved through increased flexibility. This flexibility must be accompanied by sound community-based criteria for case-by-case land use decision making.
The concepts underlying flexible zoning are not radical or new. They are commonly used in the special permit process, in which a planning commission or zoning board decides whether or not to permit a specific proposed use in a particular location by applying performance criteria. In conventional practice, these special permit criteria are often vague, giving rise to the possibility of arbitrary decisions without clear guidelines or a sound factual basis. [Editor's Note: See Special Permits: What They Are & How They Are Used, in Issue 3 of the Journal].
In working with small towns and villages dissatisfied with conventional zoning, I have been developing a system that combines use flexibility with performance criteria. Each permit application is judged based upon specific compatibility, environmental, and design criteria, including consistency with the goals of the comprehensive plan. See Sidebar, State Enabling Laws.
There are three tiers of review: "by right," minor project, and major project: (1) By-right uses are those that normally can go anywhere without bothering anyone, such as single-family residential and small-scale home occupations. These uses might require a permit only in areas reserved for large-scale commercial or industrial development. (2) Minor projects are those that are relatively small in scale (defined differently from community to community), based upon square footage, number of units, and/or number of employees. These projects require board review of only a simple site plan. (3) Major projects are subject to a much more thorough review and more stringent criteria, based upon their probable impact.
This three-tiered approach addresses the problem that sometimes arises when a small business has to run the same regulatory gauntlet as a very large one. The greater financial resources of the large company often make it more likely to succeed in gaining an approval, even though the community would prefer to attract the smaller-scale, lower-impact development.
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