Zoning: Land Use Part 2 of 3

Aspen Zoning Map

Aspen Zoning Map

Has zoning become a giant, half-inflated balloon, that wonbt float and wonbt land?

Is zoning the BIG HAMMER?

Theoretically, governments use zoning as a tool to organize community development into areas that are more or less dedicated to compatible uses.

Reasons for this can be as obvious as ensuring that an asphalt batch plant is not located in a residential neighborhood or as obscure as ensuring that an industrial area is not burdened with including residences whose owners then complain about noise and traffic.

In reality zoning can become a set of rules that either prohibits healthy change or allows unfair and unequal rights to some and not to others.B It can result in unintended consequences such as creating vehicle traffic by prohibiting a neighborhood grocery or restaurant in a dense residential neighborhood.

The History
As American settlers moved west, Main Street USA seemed to organize itself in a fairly typical way, with a wide main street (for turning horse-drawn wagons) lined with commercial enterprises like restaurants, hardware stores, five-and-dimes, and drugstores.B One street back was usually a transitional zone with some houses and some business b more like doctorsb offices, attorneys and land agents.B Two streets back became primarily residential.

In states primarily west of the original 13 colonies, streets were most often laid out in a grid pattern, oriented very simply North, South, East, and West.B Rural lands were sectioned off in 6 mile-square bTownshipsb subdivided into 36 1-mile-by-1-mile sections of 640 acres each.B Markings however, were often land features such as rocks, trees, and river beds, and so fluctuated over time.B The federal governmentbs Northwest Ordinance of 1787 established a rectangular survey system designed to facilitate the transfer of Federal lands to private citizens, but the system was not able to take into consideration the changes in topography over such a large and un-surveyed country, also resulting in less than square bsectionsb.

The Rules
Most zoning can be considered one of four basic types:

  1. Euclidean b wherein land use is regulated primarily through use classifications and dimensional standards.B The allowable uses in any given zone are typically quite segregated into residential, commercial, and industrial.B B It has become increasingly viewed as inflexible but does not require that administrators make subjective determinations on property.
  2. Form-Based Zoningb typically attempts to regulate development by its shape, using mass and scale to address the relationships between buildings and adjacent spaces, and thereby regulating bcharacterb, rather than only regulating type of use.
  3. Incentive-Based Zoning, according to a 2010 article in the Philadelphia Zoning Commissionbs online publication bZoning Mattersb, bb&allows a developer to build a larger, higher-density project than would be permitted under existing zoning. In exchange, the developer provides something that is in the community’s interest that would not otherwise be required (e.g., open space, plazas, arcades, etc.).bB A density bonus system is a type of Incentive Zoning that brewardsb developers with additional density for providing items considered community benefits such as affordable housing, trails and transit.
  4. Performance Zoning attempts to regulate the effects of development on a community by requiring that development meet standards for such things traffic generation, noise, maintenance of solar corridors and air quality, among others.

The Effects
Obviously Incentive and Performance Based zoning codes allow the most flexibility in site design, mixed uses, and the opportunity to make development bpay itbs own wayb in a community by providing things such as utility extensions, new roads or trails, employee housing, etc.B But these flexibilities give powers of subjective review to appointed and elected officials and create a complex code that is very difficult to both interpret and administer.

The Arguments
Proponents of zoning as a land use tool often view it as an important part of social policy ensuring that land is used efficiently for the benefit of the wider economy and population as well as to protect the environment.B Advocates believe that restrictions will ultimately promote greater economic efficiency by protecting the property values of a given area, as well as limiting subsequent nuisance claims.

Land owners who oppose zoning see restrictions as a violation of property rights and potential limitation on optimal uses of a given area.B Opponents often cite bmarket conditionsb as the proper tool to ensure that incompatible uses are not in conflict.B Also, strict zoning laws can get in the way of creative developments like mixed-use developments that might integrate residential and neighborhood commercial.B And many people prefer the Main Street USA configuration over the newer style circuitous streets and cul-de-sacs of residential Planned Unit Developments (PUDs).

The constitutionality of zoning was established by the Supreme Court in the 1926 case of Village of Euclid Ohio v Ambler Realty Co. 272 US 365, by determining that government had a valid interest in regulating where certain land uses may occur in upholding the character of a neighborhood.

Our Town
Aspen has created an extremely complex development code using some of each of these types of zoning.B The more Euclidean aspects of zoning do create the bhammerb which is useful on occasion, the Incentive and Performance based aspects have helped our community achieve public improvements we might not otherwise have had, and the form-based elements have attempted to create (or mostly preserve) something called bcharacterb.

I marvel however at the constant changes in temperament, if you will, that seem to mimic a pendulum that swings from zoning with the intention to stimulate development back to zoning with the intention to prevent development and bprotectb existing land owners from change.

I submit that change is inevitable and, in fact, necessary.B Stability can so easily turn into stagnation if change is not embraced.B I also believe that some level of government-administered zoning is appropriate.B After all, without zoning what chance would I have against the gravel pit operator who wanted to mine the streambed in my back yard?

It would be really nice if we could rely on each other to be good neighbors and on developers to include the burdens of utilities, roads and environmental quality in their pro-formas.B But with our ego-centric 20th century behavior patterns well entrenched, I think it will be a long time before we can self administer development that meets the needs of today without compromising the needs of the future. bTil then, at least the governmental regulations cause us to come together sometimes in public forums and give us the opportunity to be a part of solutions, not just problems.

Image from Esri

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