When 'What's Old Is New Again': - PowerPoint Presentation

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When 'What's Old Is New Again': The Challenges of Tailoring Land Use Regulation and Tapping Technology

John Travis Marshall

Ryan Rowberry

Georgia State University

College of Law

April 8, 2017Slide2

A Continuing Story of Rebirth Rooted in the PastUniv. of Florida & State Archives

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Zoning Ordinances Were Adopted with the Best of Intentions . . . .

“[Washington, D.C.’s] . . .

new

zoning code makes changes . . . to legalize the kind of development patterns that formed the neighborhoods residents treasure today, rather than forcing radically different forms which characterize much of the mistakes of the mid-to-late 20th century.+

+ D. Alpert,

Rewritten D.C. Zoning Code Corrects Past Mistakes

, Greater Greater Washington (Feb. 8, 2012)3Slide4

An Example of the Challenge: 8th St. between Ave L & MSandborn Fire Ins. Map (1922)

Franklin Cty. Property Appraiser (2017)

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Framing the ChallengeFor The Local Government . . .

Fla. Stat. Sec. 163.3194

(requires consistency with City’s comp. plan)

City Comprehensive Plan,

Future Land Use Map (sets density limits)

City Land Dev. Code:

E.g., R-1 zoning (forbids accessory structure for residential use; requires 9000 s.f. lot for two-family home)E.g., variance (cannot “increase the density upon a parcel of land”)For the Scattered Site Affordable Housing Developer . . .

Serving market segments not generally served by for-profit market playerskeeping rehabbed homes affordable:Property tax abatementsPhilanthropic grant funds

Gov’t grant fundsTax creditsProactive credit counseling Predictable permitting environmentUnit size & owner-occupied rental (lot)

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Framing the ChallengeHistoric Rehab Goal:

subdivide a single lot of record (the target parcel), which supports rehab 4 shotgun homes, into two lots of record, each with 2 shotgun homes – one home in homeowership and the other for rental.

The target parcel is located in the R-1 zoning district. 

R-1 allows one unit per lot 'as of right' with a minimum lot size of 6000 s.f.  

By "special exception,“ R-1 allows a two family structure if the lot is at least 9,000 s.f.  

But two-family structures (i.e., duplexes) does

not mean two detached homes. See LDC at § II, para 76 (definition for “Two-family”).  Applicant sought a variance to allow subdivision of target parcel into two lots, neither of which would satisfy the minimum R-1 lot size.

In December 2015, board of adjustment (BOA) determined the city could not grant a variance to re-subdivide the existing lot of record into two lots.

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Framing the ChallengeThe BOA’s decision was well-grounded:

BOA cannot waive minimum lot requirements based on a project applicant’s request to create nonconforming lots (e.g., variance not appropriate where applicant’s affirmative action creates the “hardship” necessitating the variance).  

Arguably, BOA could

also

have denied the variance because it would:

Allow a type of multiple family use not allowed the R-1 district.

See § III.A.3.b.9 (“Under no circumstances shall the Board issue a variance to permit a use not generally or provisionally permitted in the district involved in the request . . . .”).  Arguably bless a future land use density that exceeds the density currently permitted by the City’s future land use map. See Fla. Stat. § 163.3194

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Framing the ChallengeThis case highlighted [at least] three obstacles:

Zoning district’s minimum lot size requirements

Zoning district’s allowable [and special] uses 

Comp. Plan future land use map densities

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An Initial Solution – Recent LDC AmendmentsRecent changes to LDC terms and provisions:

To provide better guidance to city officials and owners of nonconforming structures, by resolve the

existing

LDC’s perceived omissions and ambiguities:

This means removing definitions that could cause confusion regarding rights and responsibilities;

Adding and amending definitions that help clarify rights and responsibilities; and

Revisiting how the city treats the continuation, cessation and expansion of nonconforming uses and structures.To provide better guidance for city boards regarding their duties concerning review of:Applications for development approval relating to historic structures destroyed by flood; andApplications for variance

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Informal Thoughts on Solutions: Polling Practitioners & Academics

Thinker

Impressions & Ideas

Prof. Peter Byrne

Georgetown Univ. Law Center

Washington, D.C.

In 1950s, Washington adopted zoning rule requiring single family homes to have off-street parking, causing big aesthetic problem in row house historic districts

DC later amended zoning ordinance so rule did

not

apply in historic districts

Consider: (1) amending code to establish neighborhood historic district where the dimensional aspects of zoning do not apply, or (2) replace the existing zoning with a form-based code

Stephen Villavaso, FAICP

Villavaso & Associates

New Orleans, LA

I’ve “seen this before”

Lots of possible approaches.

Planned Development (PD) zoning is wrong approach.

Overlay district (or floating zone) may be best approach for encouraging historic rehab

Bob Rivers

Exec. Dir.

New Orleans Planning Comm’n

Familiar problem.

Cities’ 1960’s-era zoning code not sensitive to historic settlement patterns often resulting in old structures being designated “nonconforming”

In 2013, New Orleans adopted place-based Comprehensive Zoning Ordnance (CZO), i.e.,

zoning regulations based upon the development characteristic of specific areas of the city

Consider overlay district to memorialize the desired development standards

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General Thoughts on Two Additional Ways Forward

Concurrent with zoning changes, consider updating City’s

housing plan

. . . .

Current plan outlines city’s housing types, deficits, and overarching goals

Update attracts philanthropic grants and speeds post-disaster federal recovery funding

About disasters . . . .Nonconforming uses and structures stifle redevelopment and rehab in older communities hit by major storms. Comprehensive Plan’s Historic and Housing Elements already support thoughtful amendment to zoning code to promote historic rehab:“Future land use and zoning regulations should encourage the rehabilitation of historic structures . . . .” (Comp. Plan, Historic Element at § III).

“Review the current zoning ordinance and amend it to include density bonuses to those developers who construct housing for low to moderate income persons . . . .” (Comp. Plan, Housing Element at § IV, Policy 1A.“Increase supply of safe, affordable, and sanitary housing by recycling older houses . . . .” (Id. at Policy 1B).

“Preserve, restore, and enhance historic house[s] and buildings . . . so tha[t] no historic structures that are salvageable are lost.” (Id. at Objective 7)

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More General Thoughts on 2 Ways Forward

Overlay

Zones and

Floating

Zones

zoning “tools” that add flexibility to relatively rigid zoning districts (e.g., R-1).

Overlay and floating zones address:special community concerns . . . .concerns not adequately addressed in underlying zoning district(s), For example: historic resources (overlay & floating zones), environmental or wildlife resources, e.g., habitat protection (principally overlay)commercial corridors, e.g., pedestrian amenities (principally overlay), or

high hazard areas, e.g., landslide risk (principally overlay)

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Possible Way Forward – Overlay ZoneOverlay Zone:

A property is simultaneously situated in 2 zones

Underlying

zoning district

reflects city’s concern for compatibility of use in various areas of the city

Overlay zone reflects city’s concern for protecting particular resource running across one or more districtsOverlay regs supersede underlying zoning

Source: Clearzoning Giffels-Webster13Slide14

Thoughts on Two Possible Ways Forward2. ‘Floating’ Zoning District

Arguably allows more control than overlay, but requires more staff & board time

The unmapped zoning district “floats” over the city until:

landowner applies,

satisfies the floating zone’s criteria, and

the zoning designation is affixed to the parcel.

An analog to a special exception use (i.e., presumed compatible with areas in which the floating zone may be located).Text of zoning code makes certain types of uses available (through a floating zone) if detailed criteria are met.

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Possible Way Forward – Floating ZoneProcedure:

First

, city adopts an ordinance, creating a zone along with its detailed characteristics (e.g., historic residential structure, design same as or similar to Gulf Coast Mill Worker’s Cottage, see Comp Plan Historic Pres. Element at § IIII).

Ordinance allows designation by application

Second

, property owner applies to secure zoning designation by application

Application must establish the specific criteria identified in the initial ordinance. Source: The Suffolk Times

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Economic2012 Federal historic preservation tax credit58,000 jobs

$3.4 billion in GDP

$2.5 billion in income

Heritage Tourism (Georgia, annually)

117,000 jobs

$204 million in wages

$210 million in local taxes Mental Health and Societal Well-beingConnecting with the past creates resilient people and communities that better cope

with change

Benefits of Historic Preservation

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GIS-based inventorySearchableWhy?Already widely usedInexpensiveLayering and slicing data

on a map allows for range

targeted operations

Online Historic Resources Database

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CrowdsourcingVoluntary contributions from online communityExamples: Finland, NatGeo, South Africa, UKOnline Portal

Online training

Allows for quality control

Why?

Scarce gov’t resources

Fosters civic pride/communityFulfill mission

Crowdsourcing Interface

www.digventures.com

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Lengthy review processes can impede rebuilding post-disasterExample: New OrleansStreamlined RegsFederal LevelProgrammatic Agreementswww.achp.gov/fema-pa.html

Why?

Time



No time to legislate post-disaster

Money

 Review must be complete before disbursementStreamline Envtl/Historic Review

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ResourcesCity of Atlanta, Ga, Code of Ordinances, Chap.20G, Sec. 16-20G.001 – 20G.006 (describing the West End neighborhood overlay district)

Town of Southold, NY, Code of Ordinances, Chap. 280, Art. XXIII,

Sec. 280-190 – 280-196 (describing the Town’s floating zone ordinance to protect its historic churches by promoting opportunities for adaptive reuse).

Julian Juergensmeyer & Thomas Roberts

,

Land Use Planning And Development Regulation Law

§§ 4:16 (Floating) and 4:21 (Overlay) (Thomson West, 3d ed. 2012).Julian C. Juergensmeyer, Florida Land Use Law §§ 8:08 (Floating) (Lexis, 2d ed. 1999).John Travis Marshall and Ryan Rowberry, Urban Wreckage and Resiliency, 50 Idaho L. Rev. 49

reprinted in Patricia E. Salkin, Zoning and Planning Law Handbook, Thomson Reuters

(2015 ed.).Thanks to Research Assistant, Corbin Aiken, GSU College of Law (2017). Slide21

Thank you!!Questions??

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