Winter 1997

Since You Asked...

Below are the replies to questions that we did not have time to answer in the September 11, 1996, audio conference, Legal Foundation for the Zoning Ordinance. Please note that space constraints prevent us from answering all the questions asked. Look for more questions and answers in an upcoming issue.

Please explain how performance zoning can be used specifically as a growth management tool. (Submitted by Laura Clarke, St. Mary's County, Maryland)

There are several ways in which performance zoning can be used as a growth management tool. First, it has been used to develop districts for urban growth areas (urbanizing and rural districts). The performance districts offer more flexibility in the rural areas providing land owners more development options than is the case with traditional agricultural zoning (30-80 acre minimum lot size). This includes clustering and special home uses that are compatible with farming. It also integrates non-contiguous development in cluster developments which can be used to create small villages or permit development around existing hamlets or rural cross roads.

A second approach deals more with the ability of the community to supply services or provide adequate roads. Under this approach performance ordinances use a capacity analysis (traffic sheds for roads), water, sewer, soil types for septic systems, geology or well yields for wells. These factors are used to modify the zoning district density. For example, a zoning district might permit two-acre lots (50 homes per 100 acres). An analysis of road capacity on rural roads might yield a capacity of one home per 22 acres. The capacity analysis would control until a threshold figure (one house per 40 acres) was reached. The developer can buy development rights or make improvements to improve the density. The developer is thus given many options that force him to value the costs of providing services. The urban growth limit or capacity approaches may be used separately, or they may be combined. (Reply by Lane Kendig, Lane Kendig, Inc., Mundelein, Illinois)

In preparing zoning ordinances, attorneys are necessary but should their role be limited to legal issues, letting the planner accomplish the planning/zoning? (Submitted by Richard Unger, Orlando, Florida)

The zoning ordinance and other land-use regulations are too important to be left solely to lawyers, even those with significant land-use law experience. My own preference is to approach the preparation of a zoning ordinance or a major amendment to an ordinance as a "team" effort with planners. Alternatively, I think it makes sense to have planners prepare the initial drafts of the zoning ordinance or amendment, with the lawyer reviewing that work product. However, I also believe it is difficult to draw hard and fast lines between "planning/zoning" and "legal issues." I think it is important for the lawyer to understand the substantive planning and zoning objectives embodied in the draft ordinance or amendment. (Reply by Frank Bangs, Lewis and Roca, L.L.P., Tucson, Arizona)

What criteria must be met such that a development moratorium will not be deemed a "taking"? Is the need to update a master plan or zoning ordinance a valid reason for a moratorium? (Submitted by Dan Freitag, Granville, Ohio)

The general test of a taking is whether the moratorium substantially advances legitimate state interests and does not deprive a landowner of all economically viable use of the property.

The important factors are discussed below:

Authority to impose moratorium. First make sure that your community has this legal authority. If the authority to impose a building moratorium is not specifically authorized by statute, courts usually imply, or read in, that authority from zoning statutes.

Legitimate state interests. Some valid public purposes justifying temporary moratoria are updating of plans or zoning ordinances or remedying the lack of key public facilities (like water or sewer services). The more pressing the public purpose, the more likely the moratorium will be upheld. Working closely with your attorney is important while you are studying and documenting the need for the moratorium. It can be important to carefully study and document the public need and to refer to it when adopting the moratorium. This study and documentation should include information on how the types of land uses being banned during the moratoria are related to the public purpose. Courts may make inquiries: Will these types of land uses, if allowed, cause further stream pollution during the updating of the sewer system? Why, during the updating of a sewer system, are apartments banned, while whole subdivisions of single-family homes are allowed? Will these types of land uses, if allowed, significantly reduce the effectiveness of new zoning or plans that the community needs time to develop?

Scope of the moratorium. The scope of the moratorium that a court might look at includes not only the range of banned land uses but also the time period and the geographic area in which the moratorium applies. The studies and documentation should explain why the time period is needed. Generally, moratoria are not longer than two years. The longer the moratorium, the more risky it is that a court will rule that a landowner's property rights are taken. In addition to looking at the duration of the moratorium, the court may look at whether the community diligently pursued the claimed public interest during the moratorium. It may be a good idea to set a justifiable schedule prior to adopting the moratorium, and stick to it.

The land coverage of the moratorium should also make sense in terms of the public interest justifying the moratorium. Communitywide moratoria may be justified during comprehensive updates to zoning ordinances or plans but not during the updating of some public services or facilities. (Reply by Rodney Cobb, APA Staff Attorney and Editor, Land Use Law & Zoning Digest)