Zoning Ordinances Come Under Renewed Scrutiny; Cities, Counties Ponder Radical Shift or Simple ‘Tweak'
As California's post-recession economy picks up steam, many city and county planning departments are revisiting an important policy document that serves as one of the pillars of the community's planning.
Contrary to expectation, however, this policy document is not the general plan. It's the zoning ordinance — a document that serves as the workhorse of day-to-day land-use planning but can easily be rendered obsolete or irrelevant by a rapidly changing economy or a highly political planning environment.
It remains to be seen, however, whether communities are open to a wholesale rethinking of the concept of zoning. Though some policy analysts are pushing for performance-oriented standards, such standards have proven difficult to administer — and could create an open-ended system of analysis similar to environmental impact reports. Most communities appear to feel more comfortable tweaking the existing ordinance by simplifying it and focusing on potentially controversial land uses.
Without question, however, there is concern and discontent in the planning community over the traditional site- and use-specific approach to zoning regulations. In residential subdivisions, deed covenants — administered by homeowner associations — are becoming the norm. Meanwhile, in commercial areas, the concept of separate uses has become increasingly irrelevant, as businesses combine activities in unpredictable combinations under one roof. "I've heard more than one planning director say, ‘I don't care what goes on in the building so long as it looks nice'," says Paul Crawford, a principal with Crawford Multari & Clark in San Luis Obispo, who says he is currently revising 12 different zoning ordinances around the state
In response to this concern, communities and policy advocates throughout California and the country are using various methods to reform zoning. Among them are the following:
o Perhaps the most common step communities are taking is to revisit the all-important "list of uses" — the list specifying which land uses are permissible in each zoning district. Given the rapidly changing economy, it's hard for any community to keep such a list current. Furthermore, changing poltiical circumstances make it hard to predict which uses might be controversial in the future.
o Partly because of the difficulty in keeping such lists current, some communities appear to be considering a move toward "performance zoning," which emphasizes minimizing the impact of a building and its use on neighbors.
o Along the same lines, a team of market-oriented public policy researchers in Los Angeles are calling for a move away from cumbersome zoning regulations toward performance standards based in nuisance law.
o And at the same time, many advocates of The New Urbanism are proposing that zoning ordinances move in the opposite direction. They do not challenge the basic concept of zoning ordinance as a dense and comprehensive set of regulations, but rather propose that the ordinance be altered to favor traditional-style development patterns.
Underlying much of the problem appears to be not just rapid economic change but also the peculiar nature of zoning as a tool to implement community planning. Critics across the spectrum agree that zoning decisions are often much more political "in real life" than the actual policy language would suggest. They say that zoning ordinances often appear to provide certainty and consistency, but many times they are used to provide political cover for potentially controversial land-use decisions.
"The overall framework of zoning doesn't work, but the politics of local government has enveloped it," says Samuel Staley, a researcher with the Reason Public Policy Institute in Los Angeles, which recently issued a report proposing market-based alternatives to traditional zoning.
Lloyd Zola of LSA Associates in Riverside, a longtime California planning consultant, agrees that local politics often distorts the seemingly clear regulatory framework of a traditional zoning ordinance. Often, he argues, the code will include permitted uses, but require conditional use permits in individual situations that provides local planning commissions with an "out" in case of public opposition. "There should not be a situation where a use is permitted in a plan when you wouldn't want it actually approved," says Zola, who has been wrestling with the development code for the Eastside Reservoir recreation plan for the Metropolitan Water District of Southern California.
Increasingly, advocates of reform point to the concept of "performance zoning" as a possible alternative to the traditional use-based zoning ordinance. Under the performance zoning concept, individual development projects must meet community performance and impact standards, rather than conform to a specific list of uses. Performance zoning is preferable, Zola suggested, because no longer is the "list of uses" used as cover for a political problem: "Right now, we're using the type of use as a substitute to try to answer a question like how many truck trips are there?"
Design their elegance as a concept, performance zoning standards have not proven popular. Many communities that have adopted them are now moving back toward traditional zoning ordinances, while their popularity has not spread. In recent years, for example, the pioneering performance zoning system in Fort Collins, Colorado, has been cut back. And a perfomrnance system in Tallahassee, Florida, has been replaced by a traditional ordinance.
The reasons vary — but in large part they boil down to the apparent fact that performance standards can be difficult to administer and don't provide a clear picture of what a landowner may do with his or her land. Landowners in Tallahassee complained that they had to hire engineers and other consultants to determine what was permissible. "There is a fear among planners that they can't control the future with performance zoning," observed Staley. Though he's an advocate of performance standards, he acknowledged that traditional zoning regulations provide "an illusion of certainty" that is politically attractive to communities across the country.
If performance standards are harder for landowners to understand, they are also harder for planning departments to administer. "For the counter planner, a traditional zoning ordinance is simple," says Zola. "You look down the M-1 list and you see whether it's allowed or not. You can operate with a less experienced, more entry-level staff. It requires far less discretionary thinking."
By contrast, he adds, "it's harder to measure, enforce, and make performance determinations for every use with performance standards."
In lieu of such radical departure, many communities appear to be pursuing a more incremental approach by trimming and refining the "use list". Consultant Crawford says he is working with many cities and counties to cut down the "encyclopedic list" to a more "generic list" — for example, collapsing 8 or 10 categories of "retail commerce" to just one or two. Such an approach allows a city or county to process most land uses routinely, while still calling out potentially controversial uses for special consideration. "Pet stores are a hot item everywhere right now," Crawford says. "I'm not quite sure why."
Crawford acknowledges that the fine-tuning approach isn't self-executing, and that zoning ordinance "tune-ups" are still required on regular basis. But, he says, "we're trying to design them to make them easier to update."
Meanwhile, Staley and Lynn Scarlette of the Reason Public Policy Institute are attempting to fine-tune their own efforts to persuade planners to move in a more "market-oriented" direction. Staley said Reason hopes to build on the appeal of performance-based zoning by creating a model ordinance that would focus on resolving nuisance-oriented problems rather than controlling every aspect of a business's activities. But he says Reason is not wedded to a specific solution — a critique he has of New Urbanist zoning ordinances, who he claims simply want to replace the old segregation of uses approach with a new, integrated-use approach: "If you're just saying, here's the problem and here's the answer, you'll run into trouble. That's what's happening with the New Urbanists.
Paul Crawford, Crawford, Multari & Clark, (805) 941-2622.
Lloyd Zola, LSA Associates, (909) 781-9310.
Samuel Staley, Reason Public Policy Institute, (937) 848-8896.