by STEPHEN PITONIAK
(LAFAYETTE, NY, USA)
Visitor Question: What criteria should be used when rezoning an entire town (e.g. criteria for each zoning district) ?
Editors Reply: That is a big subject.
The most obvious criteria should be the conformance of the zoning district regulations and map to your comprehensive plan. This is the legal standard in the U.S., a standard that may be disregarded or held to strictly, depending on your state, court rulings, and planning culture. Regardless of these factors, good planning requires a quality comprehensive plan first.
If your town does not have a comprehensive plan that reflects its intentions, begin there. Either hire a consultant to engage with your citizens about their desired future and prepare a draft plan, or do the work "in house" using your own planners and planning commissioners. In this scenario, the mayor or town council appoints a diverse advisory committee of respected citizens to generate ideas and resident enthusiasm for the task. The committee can give valuable feedback about community reaction and raises concerns from the business and non-profit communities.
If you decide to update your comprehensive plan first, read and circulate our popular article on the community planning process. You also need to master the topic of comprehensive plan contents. This might take a year or year and a half from now if you have to start from scratch, but the delay is worth it in almost all instances we have seen.
We suggest very robust community engagement during the comprehensive plan revision process. Often citizen involvement is limited to perfunctory hearings or highly structured meetings, but what citizens really want is critical. The practical result of the messy engagement process is that when you come to the rezoning part, some of the knee-jerk opposition will be neutralized. Interested citizens will see that rezoning proposals are not random attacks on property values, but rather a consequence of what was already decided in the more abstract, objective community planning process.
Assuming now that the comprehensive plan is adequate, and your elected officials pay it at least some respect, we get to the meat of your question. We reiterate that the most important criterion is conformance with and furtherance of that master plan. Pretend your plan says you need more affordable housing. Your zoning map then should show places where affordable housing would be logical and welcomed. If your need is profound, maybe your zoning district regulations need to make accessory dwelling units or two-family homes legal in every residential zoning district.
If your plan says we need wholesaling as an economic engine, your rezoning needs to reflect a choice of locations for that activity. A plan that identifies reuse of vacant factories and school buildings as a priority should lead to a zoning map that allows a choice of acceptable activities in those locations. If your vacant factory is still zoned industrial, that doesn't leave wiggle room when trying to attract a new owner or tenant. A mothballed school building won't attract a new user if it is zoned as a public facility.
These examples show how important your accepted comprehensive plan can be in determining the relevant criteria for rezoning.
Your planning commission now should study and discuss land use planning in general, land-use-planning-principles, and land use classifications. Often when a community's comprehensive plan predates most of today's elected officials and when planning debates have been relatively quiet, your elected officials too will need to be gently educated. If you choose to revise your comprehensive plan by using a consultant, we hope they laid some this groundwork. If not, use your professional staff or planning professionals from nearby towns or cities to help you educate boards and councils.
A joint meeting of the planning commission and the town council can be highly beneficial in helping to raise consciousness and knowledge about planning and zoning issues. This honest exchange of perspectives and concrete experiences among planning commissioners and the elected officials is often missing, but open communication routes could really help formulate the criteria for zoning districts.
During this process of laying groundwork, ensure that the town attorney's head is in the game too. Attorneys interested in municipal law often have some helpful expertise. Make sure your attorney is fully briefed on and involved in decision making. If not, he or she probably will make trouble later, but also you may miss out on the benefit of their observations about your zoning.
When you are ready, start by considering if each of your current zoning districts is still relevant. If so, again follow the principle of starting with the most abstract level. Each zoning district section should begin with a paragraph or two describing the intent and purpose of the district. When satisfied with that, begin discussing and writing the regulations for the zoning district. Take your time, as these guide your determination of what land uses are permitted.
Draft each district's regulations separately and then evaluate whether those rules will help implement your comprehensive plan. Look for provisions that might be too strict to be practical for some of your permitted land uses. A common example would be minimum parking requirements. Ask yourselves if those are necessary and appropriate for each permitted use.
Then check to make sure that you have accommodated every land use that exists in your town in some zoning district.
Now begin the mapping process, based on the future land use map in the master plan. In theory you can simply transcribe the future land use map onto a draft zoning map, but often a master plan's land use classifications are more general than your zoning map. Your plan might only specify residential land use, but your zoning ordinance may show five or six residential zoning districts. So you still may have some heavy-duty decision-making in drafting a zoning map, but the plan gives guidance.
We advise towns to think twice about whether they need to make minute zoning map changes. Is it important that you change that R-2 district to R-3? If so, stick to your proposal, regardless of the backlash. If it will not make a difference on the ground, consider leaving the zoning as it is. Don't be so ambitious with your rezoning of the whole town that you get to the end of a years-long process only to see the new ordinance and map summarily rejected by your town council because a few neighborhoods got upset about a trivial map change.
We also advise looking at the nonconforming uses you are creating. Is each type of nonconforming use relevant to your planning goals? If so, go ahead and render some properties nonconforming. But if the difference is trivial, be mindful of the catastrophic results for one property owner when a nonconforming use is destroyed by fire or tornado and cannot be rebuilt. As a footnote, of course almost every property owner about to become nonconforming will oppose the whole rezoning effort.
If you do the rezoning without a consultant, read the zoning ordinances and maps of nearby peer communities that you admire. The tendency to copy from other jurisdictions is both a blessing and a curse in zoning, but use this technique to see possibilities you may not have considered. If you do, go see if the results on the ground in that town impress you.
If a consultant prepares the ordinance to rezone the whole town, they will use boilerplate language, so if you do it yourselves, don't worry about copying. Do carefully refer to your own comprehensive plan when you describe the purpose of each district.
The best approach is having a sound comprehensive plan and then using that as both the justification and the basis for zoning decisions. If you get stuck, come back and ask a more specific question.
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