Common problems we observe in local zoning: Part 2
MSU Extension land use specialists are often reading zoning from many different communities. Doing so shows us some common problems which should be corrected in zoning.
October 22, 2015 - Author: Kurt Schindler, Michigan State University Extension
As part of the job as a Michigan State University Extension educator in land use we end up reading or skimming through many different zoning ordinances from around Michigan. As a result we notice that there are many communities which have common errors or problems.
So this is intended as a list you might use to compare with your community’s zoning ordinance. Is there appropriate study and reasons behind these regulations? If not there should be. Remember in Michigan zoning shall be based on a plan, and that “plan” is the master plan adopted pursuant to the Michigan Planning Enabling Act. As a result the reasons and logic behind regulation in zoning is normally found in the Master Plan. Usually this is found in the zoning plan part of the master plan.
This is the second of two articles on a similar topic. The other article, part one, focuses on some common missing parts of a zoning ordinance.
The items to check for basis on the Master Plan and the studies and reasons for the regulation are:
- Parking: Read your zoning ordinance section on the number of parking spaces required for different types of land uses. Can you, or someone in your zoning jurisdiction explain why a particular business is required to have 20 parking spaces? Why is it 20? Why not 18, or 25? Where did those numbers in your zoning ordinance come from? Hopefully it was not just some “model” or was copied from a neighboring community, unfortunately, a common practice. One township came to realize their “copied” parking standards were not making any sense. So they divided up the township into seven parts (seven members on their planning commission) and went and counted number of cars parked at each business. That was compared to property tax records for the type and size of the business. Even on the Friday after Thanksgiving no one’s parking lot was full. That meant they required paving more than what was really needed, costing businesses more money, creating more runoff of storm water and more expensive storm water management systems. They re-wrote the table of required parking spaces, included ability to have shared parking between some land uses, and also instituted a maximum number of parking spaces allowed on an impervious surface (with overflow, if ever needed, on pervious parking surfaces).
- Signs: Regulation of signs cannot be about the content of the sign. Local government cannot say or regulate anything about what the sign says. Regulation of signs cannot treat certain signs differently than other signs based on the sign content. For example, a regulation that says campaign signs have to come down so many days after an election is not proper – unless the regulation is requiring all signs to come down so many days after an election. The differentiation between a campaign sign and other signs is regulating based on sign content. With recent U.S. Supreme Court cases on this topic a local government needs to be even more rigorous about making sure any and all regulation of signs are completely content neutral, function neutral. In Michigan these same principles also apply to donation solicitation boxes. Most sign sections of zoning do not live up to the content neutral rigor required. There are very good resources for a community to use to critique its sign regulations. In particular see Michigan Sign Guidebook: The Local Planning & Regulation of Signs.
- Regulation of agriculture: In Michigan the Right to Farm Act prohibits any local government regulation of agriculture or farms if the subject of that regulation is already in the Right to Farm Act or in an adopted published Generally Accepted Agricultural Management Practices (GAAMPs). But many zoning ordinances include provisions that run afoul of this provision of Michigan law. Just some examples: zoning cannot regulate the number of acres a farm must have; cannot choose certain types of farms to allow but not others; not allowing a farm market that is associated with a farm (even if the farm is located elsewhere); modifying or changing the meaning of “commercial,” “farm operation,” farm product;” farm liability; and investigation or processing complaints about agriculture. There are more. There are some exceptions to the above, but they are far and few and generally deal with livestock operations in relatively densely populated residential areas. For handling urban agriculture and preparing zoning that regulates what it can, and cannot, see Land Use Series: "Sample zoning for agriculture-like and urban agriculture".
- Undevelopable land: There are areas zoned for relatively dense residential, or other intense development, but a quick look at other maps shows the land types in the same location simply would not support such development. The master plan should have enough background studies and data that red flag such inconsistency so the zoning ordinance is not so incompatible with what is found on the ground. Zoning for relatively dense development should not be for large locations which are obviously large expanses of environmentally sensitive, or special and unique areas, or unsuitable for development. Not all land should be developed. Zoning in rural areas should be directing development, or intense versus sparse development based on those land characteristics. If there are large areas of land which are not suited for development, then zoning should not include it in a residential zoning district or similar. Rather it might be rural, or some other very low density zoning. Some zoning ordinances requires a minimum parcel size which, when measured, does not include areas which are sand dune with slopes over 18 percent, beaches contiguous to a lake or stream, wetland, areas which are not suited for on-site septic systems, flood plain areas that would have a destructive current, existing public utility easements, right-of-ways, and slopes over 25 percent. Every parcel created would have enough area, exclusive of these features, on which someone can build and use the land.
- Clear efficient procedures: Often the process to obtain zoning approval is more complex and has additional steps than is necessary. This results in more time and red tape. Consider reviewing the zoning ordinance to see if a greater number of land uses can be listed as permitted uses (use by right) rather than as special uses. Eliminate steps which are duplicative, such as the legislative body acting on administrative decisions such as site plans or special use permits. Sometimes it is informal practices that are steps that can be eliminated. Too often a community does not let a person, zoning administrator or planner, or planning commission chair, set up a hearing or review meeting. Instead the task of scheduling the review or hearing is an agenda item at the Planning Commission meeting. That means there are two meetings, two months, to perform the task: one to schedule the hearing or review and the second to do the hearing or review. The ordinance and related office guidelines and policies, should include clear flow of how applications are handled, which departments conduct reviews, time limits for reviews to take place, tracking systems, and more. The Michigan Redevelopment Ready Communities program of the Michigan Economic Development Corporation (MEDC) provides a set of best practices for zoning processes as well as other self-evaluation resources. In particular Best Practice Three Self-Evaluation focuses on zoning process.
- Streamlined zoning: The zoning ordinance should be written in a user friendly way, or should be “streamlined”. Streamlining does not mean shorter zoning ordinances – and often may be just the opposite. But it does mean things like logical organization, use of illustrations, tables, flow charts, and more.
Michigan State University Extension land use Educators provide various training programs on planning and zoning, which are available to be presented in your county. Contact your local land use educator for more information.