Loading...
A Brief Introduction to Zoning 1975 PublicationA BRIEF PREPARED FOR PUBLIC INFORMATION BY THE CITY OF DUBUQUE PLANNING AND ZONING COMMISSION STAFF JANUARY 1975 What Zoning Is Most simply stated, zoning means dividing a city into different areas or districts, often called zones, and regulating what activities can be car- ried on and what buildings or structures can be built within each zone. Another way to think of zoning is that zoning is a set of city laws con- trolling how people use their land based upon its location and relation to surrounding activities. II. The Purposes of Zoning Under our constitutional and legal system, it is generally true that a person has the right to use his land and other property any way he pleases, but only so long as he doesn't interfere with the rights or similar freedom of others. The Iowa law which grants cities the power to zone puts this idea in another way by allowing cities to zone only to promote "the health, safety, morals, or the general welfare of the community". State law puts a further restriction on zoning by requiring that all zon- ing regulations "shall be made in accordance with a comprehensive plan". [§414.3, Code of Iowa]. This has not been interpreted to require that a city have a formally -adopted "master plan" on the order of the 1965 Gruen Plan. What it does mean, however, is that a city must make its zoning de- cisions based in accordance with uniform and rational policies designed to promote the harmonious growth and development of the city. These policies and plans will be contained in the zoning ordinance itself, in the traffic plans, in the capital improvements plan, and similar documents. Taken together, all these documents and the studies underlying them constitute the "comprehensive plan" for the city. Policies are basically formal statements of intention or rules of decision which a local government adopts for itself to guide its future actions to- ward concrete goals. In zoning ordinances, policy statements are most com- mon in the statements of intent for each district, which declare the pur- poses of the district and set forth the criteria that will be used in lo- cating the district and in judging rezoning requests. Such policies are very important, not only because they tell the individual property owner what the "rules of the game" are, and help keep attention focused on the overall goals they are intended to promote, but also because they help in- sure easier and more consistent decision -making in individual cases. Often there is a reluctance by government agencies and officials to formu- late broad policies, possibly because people fear to commit themselves to positions that may later be judged unwise or unpopular, or because there is a fear of being "locked into" a future course of action forever. But policies can be both flexible and capable of change. More often than not it is the failure to formulate and adopt broad policies which can under- mine rational or coordinated planning efforts and erode public confidence and support for zoning. In addition, when local government fails to fol- low consistent zoning policies, the resulting series of ad hoc decisions may actually result in less legislative control over the city's growth, due to the fact that each decision may become a legal precedent for sim- ilar cases in the future. Ill. The "Tools" of Zoning Uses: Zoning is the most powerful tool by which a city can control the use of property. The term "use" in zoning generally refers to the ac- tivity or occupation being maintained on the property, though it also may refer to the building in which that activity is being carried on (e.g., single family dwelling). Planners make a distinction between uses based on their relative im- portance on the property. The main or principal activity which is maintained on a lot is called the principal use..Other activities on the lot which are related to or dependent onthe principal use, but which are smaller in scope are called accessory uses. For example, on a typical residential lot the principal use is the single family residence itself. Swimming pools, barbeque pits, garages, and simi- lar structures normally associated with residential living would con- stitute accessory uses. The zoning ordinance can either specifically list each accessory use which is permitted in the zoning district, or it can merely state that all "customarily incident" accessory uses are permitted. The term "customarily incident" is a legal phrase referring to uses that are subordinate in size and occur on the same lot with the principal use, and which are commonly associated with the principal use. Further distinctions are made between uses based on their place in the zoning ordinance. Within the regulations creating each zoning district, certain uses are listed as Permitted Uses (or sometimes Principal Per- mitted Uses). Permitted uses are uses that may be maintained or estab- lished in the zoning district by right, without further city approval. A second major class of uses appearing in most ordinances are called Conditional Uses, or Special Exceptions. These are uses which are de- termined to be generally compatible in the zoning district, but only when certain standards or conditions are present. The conditions un- der which the use is permitted are detailed in the ordinance, and each Conditional Use application is subjected to case by case hearing and review by the Board of Adjustment. If the Board finds that the re- quired standards or conditions are met, the Conditional Use must be allowed. If the conditions are not met, the Board must deny the ap- plication. In addition, the Board has limited authority to impose special extra limitations or conditions upon its approval of a Con- ditional Use, where necessary. Under present Iowa law, only the Board of Adjustment has the power to review and decide Conditional Use ap- plications, and their decision is not subject to Council review. Non -Conforming Uses: This is a very important and sensitive class of uses. Basically, a non -conforming use is a use which is not listed as a Permitted Use, Conditional Use, or Accessory Use for the district in which it is located. An example might be the isolated business located in the middle of an otherwise exclusively residential neighborhood. -2- Because non -conforming uses are inherently incompatible with the dis- tricts they exist in, and because experience has shown that such uses, if unregulated, often tend to expand or create other problems in their neighborhood, almost all modern zoning ordinances impose fairly severe restrictions upon non -conforming uses which are intended to prevent their expansion and encourage their cessation. Some ordinances even "amortize" such uses, which means requiring that they cease after a certain period of time, set by formula. An important distinction must be made between non -conforming uses and non -conforming buildings, structures, or lots. For example, an older house built before the imposition of zoning may be built closer to the side of its lot than the ordinance requires. Such a building is a non- conforming building. Another common example is where an old, narrow lot fails to meet the required frontage for its district. Such a lot is a non -conforming lot, even though the use on the lot may be conform- ing. Typically, zoning ordinances deal much less severely with non -conforming lots, buildings, or structures than they do with non -conforming uses. A common approach is to require that no non -conforming building or struc- ture can be altered or expanded in a way that increases its non -conform- ity, and that in the event of total or near -total destruction, the build- ing must be rebuilt to conform to the zoning ordinance. However, repair, maintenance, and even expansion of such buildings or structures is usual- ly permissible, subject to the above considerations. Variances: In addition to controlling the use of property, zoning laws typically regulate characteristics of use, such as building setbacks and height limits, yard and lot areas, open space, parking, etc. Regulations of this type are necessary to insure that the purposes of the zoning dis- tricts are fully achieved. Like use regulations, they must be uniform for each district and must bear some reasonable relationship to promoting the public health, safety and welfare. However, because of the fact that no two buildings or pieces of land are ever identical and no zoning or- dinance can ever anticipate every situation, it sometimes happens that these additional regulations either make little sense or create an unne- cessary hardship when they are applied to a particular piece of property. In cases of this type, the Board of Adjustment has the power to grant the owner a variance, which is a limited exemption from those parts of the zoning ordinance which create an unnecessary hardship for him. While variance provisions are a necessary "escape valve" in any zoning ordinance, it is obvious that the power to grant variances might be abused in many ways. For this reason, the law is very clear and pre- cise concerning what conditions must be present before a variance may be granted by the Board of Adjustment. As in the case of Conditional Uses, the Board of Adjustment holds a public hearing on each variance request to determine whether the property owner is entitled to the var- iance. I IV. Zoning and Local Government A number of local government bodies have roles in the operation of the zoning ordinance. The Planning and Zoning Commission: The role of the Planning and Zoning Commission is largely advisory in nature. The Commission makes recommen- dations to the City Council concerning the original comprehensive plan, zoning ordinance and zoning map, and any amendments to these documents. Where any changes in the comprehensive plan or the zoning ordinance are proposed, or any large change in the zoning map, the Commission must hold a public hearing on the change and transmit a recommendation to the Council. If the Commission disapproves the proposal, the Council may only adopt the change by a 3/4 majority vote. In the case of minor re- zoning requests, however, no public hearing is required by the Commis- sion. State law makes it clear that the Planning and Zoning Commission is in- tended to be an active and key participant in community planning. The Commission has the power and duty to conduct ongoing studies, surveys, and re-evaluations of the comprehensive plan, the zoning ordinance, and the map. The City Council: The City Council also has a very large role in the zoning process. It is the Council which has the ultimate power to adopt the comprehensive plan, the zoning ordinance, and the zoning map. This power also extends to any changes. Thus only the Council can ap- prove a rezoning of land, or a change in the zoning ordinance or plan. It is probable that state law intended for the Council to concern it- self primarily with the broader planning and zoning policies for the community, while placing heavy reliance on the experienced advice of the Planning and Zoning Commission where smaller issues are involved, as in minor rezonings. In any event, it seems fair to conclude that the most effective and efficient operation of the planning process de- pends on a cooperative working relationship between the Council and Commission in which each body complements the actions of the other. The Building Commissioner: The Building Commissioner and his staff serve as the enforcers or "policemen" of the zoning ordinance. It is the Building Commissioner's job to see that all new construction complies with the ordinance, and to investigate and act against ex- isting ordinance violations. The Building Commissioner also has the responsibility to issue building or other necessary permits, to en- force the.Housing Code and Building Code, to interpret ordinance pro- visions (with advice of the City Attorney), and to maintain records pertaining to variances, conditional use permits, non -conformities, PUD plans, and other zoning matters. Because the Building Department is the enforcement agency of the zon- ing ordinance, it is the proper place for property owners to seek in- -4- formation concerning the current zoning status of their property, to find out specific ordinance requirements, and to make complaints about possible ordinance violations. The decisions, judgements, or orders of the Commissioner may be appealed only to the Board of Adjustment, and are not reviewable by the City Council. The Board of Adjustment: The Board of Adjustment is a five -person body appointed by the City Council which primarily functions as a small court or tribunal in certain zoning matters. Most of its pow- ers and duties are governed by state law, but the Board is free to adopt its own rules of procedure and set its own meeting times. The Board has three main responsibilities under Iowa law: 1) To decide on applications for conditional uses; 2) To decide on applications for variances; and 3) To hear appeals from the rulings, judgements, or orders of the Building Commissioner or other zoning enforcement officials. In performing all these functions, the Board holds pub- lic hearings and receives testimony from interested parties. The Board then makes a ruling based upon the facts shown at the hearing. In the case of conditional uses and variances, the applicant must prove to the Board's satisfaction that he has met the specific re- quirements and standards set forth in the zoning ordinance. The Board can either deny or approve the request, or it can approve the application subject to additional restrictions or conditions which it feels are necessary to preserve the intent of the ordinance. Decisions of the Board may only be challenged in a court of law, and are not reviewable by the City Council.