Home Management Contemporary Urban Planning
THE INGREDIENTS OF A ZONING ORDINANCE
This material is reproduced from a Fairfax County, Virginia zoning ordinance. Note that it specifies permitted uses, site geometry, ground coverage, and building height and bulk.
Commercial District Regulations Part 5 4-500 C-5 Neighborhood Retail Commercial District
4-501 Purpose and Intent The C-5 District is established to provide locations for convenience shopping facilities in which those retail commercial uses shall predominate that have a neighborhood-oriented market of approximately 5000 persons, and which supply necessities that usually require frequent purchasing and with a minimum of consumer travel. Typical uses to be found in the Neighborhood Retail Commercial District include a food supermarket, drugstore, personal service establishments, small specialty shops, and a limited number of small professional offices.
Areas zoned for the C-5 District should be located so that their distributional pattern throughout the County reflects their neighborhood orientation. They should be designed to be an integral, homogeneous component of the neighborhoods they serve, oriented to pedestrian traffic as well as vehicular. The district should not be located in close proximity to other retail commercial uses.
Because of the nature and location of the Neighborhood Retail Commercial District, they should be encouraged to develop in compact centers under a unified design that is architecturally compatible with the neighborhood in which they are located. Further, such districts should not be so large or broad in scope of services as to attract substantial trade from outside the neighborhood. Generally, the ultimate size of a C-5 District in a given location in the County should not exceed an aggregate gross floor area of 100,000 square feet or an aggregate site size of (10) acres.
A. Front yard: Controlled by a 45° angle of bulk plane, but not less than 40 feet
B. Side yard: No Requirement
C. Rear yard: 20 feet.
One key to effective zoning is synchronization between land-use controls and public capital investment. It is possible for a community's land- use and capital investment policies to be at odds with one another and for each to undermine and frustrate the intent of the other. For example, a capital investment program might generate forces for a type or intensity of development that is proscribed by the zoning. In this case either the capital investment has been partly wasted, or economic pressures will force changes in the zoning. Conversely, if the zoning permits levels of development that are not supported by necessary road and utility investment, nothing is likely to happen. The community will then have the pleasure of watching its industrial or office zone grow weeds year after year.
The Limitations of Zoning. Zoning is limited by both economic and legal forces. If the value of land in a use permitted by zoning is very much lower than the value of that land in a use that is forbidden but for which a market exists, property owners have strong motivation to try to change the zoning. They may expend substantial funds on litigation, or they may devote substantial effort to building a coalition of forces to lobby for zoning change. If the community is hungry for jobs and additions to its tax base, potential investors may indicate to the community that if it does not show flexibility, their capital will be invested in some other community, one that can recognize a good thing when it sees it.
To illustrate, consider a prototypical suburban scenario. Mr. X owns 100 acres of vacant land, which has been in his family for generations. He rents the land to a local farmer for enough money to cover his property taxes. The land in its present low-density residential zoning category has a market value of $10,000 per acre. A major real estate developer perceives that were development of condominiums at medium density possible, the land would be worth $50,000 an acre. She approaches Mr. X and offers to buy an option. Specifically, for $10,000 Mr. X gives the developer the right to buy the property for $12,000 an acre at any time during the next two years. If the developer chooses not to exercise her option, Mr. X still keeps the $10,000.
Having purchased the option, the developer now tries to change the zoning. If her attorney tells her that the municipality's zoning of the property is on weak legal ground, she may approach the municipality, indicate to it why its position is weak, and suggest that compromise is in everyone's best interest. The municipality's legal position may be weak for any number of reasons. Comparable parcels in other areas of the municipality may be zoned for more intensive development. Hence a charge of inconsistency (of treating equals unequally) may be leveled against the municipality in court. Perhaps the zoning of the property is not in keeping with the municipality's master plan. If so, the developer can argue that the zoning is capricious and inconsistent. Perhaps the developer can show that on the basis of utilities, access, and other considerations, the property could sustain far more development than the zoning permits. In this case she can argue that the present zoning cannot be justified on the grounds of the police power.
Hearing all this and after due consultation with their planning consultant and attorney, the municipal officials might well decide that compromise is indeed in order. In that case they may recommend to the municipality's legislative body that it amend the zoning ordinance. If the community is adamant and the developer is sure the legal situation favors her, she might bring suit and begin to fight it out in court. The issue might be settled in court or, seeing the tide of legal battle flowing against it, the municipality might decide to compromise.
Alternatively, the developer can take a less confrontational tack. She can engage a local planning consultant to design a condominium development for the site. The consultant comes up with a proposal nicely presented with attractive computer graphics and a model. Then the consultant performs a set of calculations referred to as a "fiscal impact analysis," which shows that for every additional dollar the project will cost the community for services, its property taxes and other contributions to the municipal treasury will amount to two dollars. (See the box on property taxes on pages 147-148.) The developer's proposal does not fail to note how many dollars of retail sales within the community will be made from condominium residents, a point that will not be lost on the municipality's business community. The report will also note how many years of on-site construction labor the project will require, a point that should bring in a few more allies, particularly if construction employment has been soft recently.
At this point the report is presented to the town government with appropriate newspaper and other publicity. When public hearings are held, the developer or her spokespeople adopt a posture of reasonableness and conciliation. If there are aspects of the plan to which the citizens object, she will listen attentively and endeavor to find mutually satisfactory compromises. For example, if residents worry that the development will send too many children to the local schools, she may offer to build more studio and one-bedroom units and fewer two- and three-bedroom units, thus bringing in more childless couples and fewer large families. The relationship between unit size, household size, and number of school-age children has been studied often and can be predicted fairly accurately. Thus this sort of "architectural birth control" can often be practiced quite effectively.
The developer will also structure the proposal to give herself room to be reasonable. If she would be satisfied with building six units to the acre, the initial plan may call for eight units to the acre. This strategy leaves her something that can be given up after suitable protest but without causing her real pain.
The developer may or may not obtain a zoning change in this manner. Any planner who has spent some time working in the suburbs has seen such situations go both ways. The point, however, is that the party desiring the zoning change has numerous avenues open.
Note that if the developer is successful in obtaining the rezoning, she has, in effect, made a very large sum of money even before construction begins. She has obtained land worth $50,000 an acre for the price of $12,000 an acre plus the cost of the option. In fact, were she to forget about the project and simply sell the rezoned land to another developer, she would make a very large profit.10
Because of the large sums of money at stake in some land-use decisions, the practice of zoning is not immune from bribery and corruption. An FBI sting operation in Fresno, California resulted in eight convictions, with the longest sentence being 30 months, in connection with exchange of bribes and campaign contributions for favorable zoning decisions.11
The playing of zoning games is hardly limited to those on the private side of the fence. Municipalities often zone substantial amounts of land in economically unrealistic categories. This practice suits the municipal interest quite well, since it gives the municipality a bargaining position that it would not have were the land zoned realistically in the first instance.
In the late 1970s the town of Harrison, New York became the home of Texaco's corporate headquarters. The headquarters imposed few costs on the town yet provided a substantial property tax payment, clearly a very desirable situation from the town's perspective. How did this arrangement happen? The site was 100 acres or so of land zoned for single-family houses on two-acre lots. As it happened, the site was in a developing commercial area and was close to the intersection of two interstate highways. It clearly had potential for much more valuable use than low-density single-family housing. The fact that a zoning change was needed for economically realistic development put the town in a strong negotiating position. First, the town was able to turn away any development proposal it did not like. In addition, the need for a rezoning gave the town the power to insist on site features, like below-ground parking and deep setbacks, which the corporation may not otherwise have chosen to provide.
Similar comments might be made with regard to residential development. If a rezoning is necessary to permit the building of multi-family
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