Planners must treat similar businesses the same way
If planners are required to treat similar businesses in the same way, how can they respond to criticism for approving “too many of the same kind of business”?
Planners are sometimes faced with public criticism around approving too many of the same kind of business or approving some businesses at the expense of other businesses. A comment might be something like, “They allowed a new furniture store downtown? Can’t they see we already have two furniture stores and we really need a shoe store?”
There is no easy response to this type of frustrated sentiment. The answer is layered and a little dry, which may be why it is hard for the public to understand and difficult for planners to explain. A simple breakdown of an answer includes:
1) How zoning works
2) The legal framework for zoning
3) The vital economic importance of placemaking.
How Zoning Works in a Nutshell
Conventional Euclidian zoning groups compatible land uses together while keeping other “incompatible” land uses in a different place. These groupings of uses are called “zoning districts” and are typically referred to as Residential, Commercial, Industrial, Agricultural (and many others) depending on the community.
Within those districts, there are lists of land uses or groups of land uses that are allowed. A residential zoning district may limit or prohibit commercial land uses and conversely, a commercial district may limit or prohibit certain residential or industrial land uses.
These groupings of uses or land uses, such as “single family dwelling”, “manufacturing”, or “retail” are defined to be specific enough to keep things separate where needed—but not so specific that each and every kind of new business imaginable has to be defined in the ordinance before it can be allowed.
For example, a zoning ordinances rarely, if ever, would further separate “retail” into specific types of retail sales listed in a zoning district like furniture, antiques, health food, kitchen wares, clothing, shoes, etc. It is important to understand that “retail” in zoning, is all of these things and a single use that might appear simply as “retail” in a zoning district.
In the example provided earlier where there are two furniture stores downtown and the planning commission approves the third, it is important to understand that a planning commission has no legal authority to approve the first two land uses and prohibit the third. In zoning, the third furniture store (or the fourth big box hardware store or the sixth auto parts store), is just another “retail” use that must be treated the same as the other stores.
While the Planning Commissioners may be scratching their heads privately or publicly on why a sixth auto parts store is locating in their town, they are obligated to treat all of these stores the same if they meet the definition of “retail”, for example. This most often means disregarding the number of similar stores that already exist and treating the first store the same as the sixth.
If Planning Commissioners denied a toy retailer and approved a jewelry retailer in the same location, for example, and the reason they provided on record was “because we already have a toy store in town”, they could potentially be at risk for litigation. The U.S. and Michigan Constitutions require equal treatment for similar uses in similar situations, such as the same land use in the same zoning district.
These processes (called due process) are based on the 5th and 14th amendments of the U.S. Constitution and the Michigan Constitution and guarantee equal treatment under the law. These constitutional rights form a basis for all zoning decisions. Together, these laws create a more level playing field for all applicants, procedures, hearings, and notices.
What planners can do to make great places that attract and retain business and talented workers is to engage in placemaking and Michigan Economic Development Corporations’ Redevelopment Ready Communities program. Placemaking is a series of strategic actions to create quality places where people want to live, work, play and learn. Placemaking invites a wide variety of local businesses and supports an entrepreneurial, place-based economy.
Other forms of zoning, such as form-based codes, support multiple uses on a parcel, walkable communities, and live-work buildings. While this would not prohibit a “third furniture store” it offers a stronger alternative to single-use zoning and auto-dominated land use patterns.
For more information on placemaking and community development check out the resources provided by the Michigan Economic Development Corporation. If these kinds of ideas and topics are of interest to the reader, consider joining a local Planning Commission.
Those in Michigan State University Extension that focus on land use 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.