Zoning Practice — January 2004

Ask the Author

Here are reader questions answered by Harvey S. Moskowitz, FAICP, co-author with Carl Lindbloom, AICP, of the December Zoning News article, "Why Definitions."

Question from Susan McGregor, Principal Planner, Department of Development Services, City of Oshawa, Ontario, Canada:

We are undertaking a "fine-grained" zoning review of our Central Business District to more specifically restrict street-level uses on main streets to positive image, pedestrian-oriented uses. Are you aware of any definitions/regulations which have this intent?

Answer from author Harvey Moskowitz:

Great idea! Of course you can establish CBD standards to do just that — restrict street level uses to pedestrian oriented uses. You mention creating positive images, as well. That's best done by adapting a design plan and establishing a design review committee to assist property owners and tenants when they renovate or rehab units in the CBD. Many owners (and unfortunately, their architects) don't quite know what to do in terms of creating a more aesthetic image. The design plan can provide guidance and include sign controls (color, size, and location), lighting requirements, window treatment, color and facade treatment, location of entrances, sidewalk treatment, and street furniture. The design committee, which should include planners and architects, can work with the applicant on achieving the plan objectives. (In The Latest Illustrated Book of Development Definitions, due out in March 2004, we define Special Improvement Districts which can be of assistance in what you are trying to achieve.)

The design plan can include the kinds of businesses that you want on the street level, mostly retail stores and services, including small offices that generate pedestrian traffic. Avoid blank walls, parking lots, and corporate offices on the street level.

Question from Stephen Kerlin, AICP, Director of Planning and Economic Development, Ashland, Massachusetts:

The Town of Ashland, Massachusetts includes two 2-lane highway corridors. One of these corridors is under a "moratorium."

We would like to lift the moratorium in June of 2004. Then we would like to create an innovative zoning district along this corridor that would be based on a point system for specific land uses such x points for a coffee shop, y points for an independent bookstore, z points for health food store, etc. The purpose would be to limit uses (brands) of the same type. When the quota of that particular use is met, then a developer would not have the freedom to copy-cat previously allowed uses and would be compelled to try another allowable use.

Is there a way to do this short of developer agreements?

Answer from author Harvey Moskowitz:

Your idea about assigning points to specific uses sounds interesting but, frankly, unworkable. Ramapo, New York, assigned points to specific areas depending on availability of utilities, access, and public services, and then based on the point total, permitted certain residential densities. A developer could increase his density if he put in utilities, etc.

But we have never heard about assigning points for specific uses and when the point total was reached, not permit any more of those uses on a tract.

The developers' agreement that you mention is a better way. Also, the zoning for the site could limit the kinds of uses that are permitted but not the number. However, we find the market is pretty effective. We don't think you're going to get too many of a specific kind of use, at least in a single parcel owned and developed by one developer. It reduces rentability and the developer might be reluctant to rent to too many stores of the same type.

Also, we assume that the zoning would be based on a corridor plan with implementation techniques based on the plan. In that way, with the cooperation of the land owners in the corridor since they would be brought in to help develop the plan, specific uses and use areas can be made part of the zoning.

Question from Ed Shambra, City of Biloxi, Mississippi:

We have experienced a tremendous amount of growth over the past decade, most notably in the area of multi-family and high-rise development proposals — some commercial and some residential, by designation. Although most communities define the zoning term "condominium," the term itself does not relate to a specific "use" as its origin has more to do with how a property is transacted from a real estate perspective than it does to what activity will be accommodated within a given property site. Further, condominiums take on a different status when viewed in the context of subdivision of land, as a high-rise structure would become a "vertical subdivision" with a transfer of "air space" as the recorded area of filed plat consideration.

What embellishments or modern refinements might be employed with respect to the "use" condominium which might be better attuned to the complex situation which many communities, particularly those situated within heavy-demand, tourist-based areas, might utilize to better address this situation?

Answer from author Harvey Moskowitz:

You are absolutely right when you point out that condominium is a form of ownership and not a specific building type. It really is not a use category from a zoning prospective. You can have office suites in office buildings sold as condominiums, flats in apartment buildings sold as condos, and even a two- or four-family house employ the condominium form of ownership and

You regulate the basic use and not the form of ownership. For example, if apartments in a high rise building are to be rented, sold as condos, or subdivided as part of a cooperative ownership plan, the basic controls are still the same: maximum density, setbacks, minimum parking, landscape requirements, etc.

Question from Chris Fine, Principal Planner I, City of Dayton, Ohio:

We are in the process of rewriting our city's zoning ordinance. One question that always arises is the definition of "church" or "place of worship." With respect to churches and other places of worship, what is a good definition of such uses and what are the considerations when crafting a definition? How important is it to have a clear definition of such uses if and when challenged under RLUIPA?

Answer from author Harvey Moskowitz:

All definitions should be sharply drawn, unambiguous, and clear to be applied fairly and survive litigation.

We define Places of Worship as follows: (1) A church, synagogue, temple, mosque, or other facility that is used for prayer by persons of similar beliefs; (2) a special-purpose building that is architecturally designed and particularly adapted for the primary use of conducting formal religious services on a regular basis.

The federal Religious Land Use and Institutionalized Persons Act of 2000 (RLUIRA) places the burden on the municipality to prove that any regulation that imposes restrictions on houses of worship is needed and necessary. Any restrictions must be carefully documented and spelled out to provide a firm basis in the event of litigation. For a detailed discussion of religious land-use issues, see the September 2001 issue of the APA's Land Use Law & Zoning Digest, Vol. 53, No. 9.

Question from Verónica Rosales, AICP, City of El Paso Planning, Research & Development Department:

Some of our zoning definitions are quite specific to the point of being regulations and standards that are not really found elsewhere in the code. Have you found that cities are using definitions to have standards within them or is the trend to separate the regulatory standards in other, perhaps more appropriate chapters, of the zoning code?

Answer from author Harvey Moskowitz:

As noted in Zoning News, "Definitions should not contain the control standards that regulate the defined word or phrase."

We used "home occupation" as an example. Many ordinances use the definition to define the term and then include the standards (maximum floor area, minimum parking, etc.) in the definition. This makes it difficult to tailor the requirements to specific zones.

In our opinion, you should cull the definitions section and remove the regulatory standards to more appropriate sections of the ordinance. We are of the opinion that this is the current trend and it makes a lot of sense.

Question from Lochen Wood, City of Rifle, Colorado, Department of Planning:

A question recently arose around the definition of animal boarding. Currently, I am processing a special use permit with a condition that the veterinary office not have boarding. Does keeping a patient overnight constitute boarding or is it incidental to the veterinary practice? I want to avoid the clinic becoming a place where healthy animals are kept for the convenience of the owners. Should the condition be more specific and state that "boarding is prohibited except when incidental to the veterinary practice?"

Answer from author Harvey Moskowitz:

You asked whether a veterinary office can be permitted under a special use permit prohibiting boarding. The answer is yes and your proposed wording that "boarding is prohibited except when incidental to the veterinary practice" is fine. However, I would also define boarding as part of the permit. One possible definition would be "Boarding shall be defined as the keeping of otherwise healthy animals not requiring medical or surgical treatment for one or more nights."

For you information, we define "Veterinary Hospital" as: A place where animals are given medical care and the boarding of animals is limited to short-term care incidental to the hospital use.

Question from Mike W. Strodtman, City Manager's Intern, City of Mankato, Minnesota:

I just had a couple quick questions to see what your definitions are for the following terms:

1. Special permit or conditional use
2. Rezoning
3. Variance

Answer from author Harvey Moskowitz:

In the 3rd edition of The Latest Illustrated Book of Development Definitions (due out in March 2004) we define Conditional Uses as follows: A use permitted in a particular zoning district when it is shown that such use in a specified location will comply with all the conditions and standards for the location or operation as specified in the zoning ordinance and authorized by the approving authority.

The comment under the definition reads as follows: Conditional uses are permitted uses and are appropriate in the zoning district only when all conditions are met. For example, houses of worship may be desirable in a residential area, but controls over parking, circulation, setbacks, and landscaping may be needed to prevent them from adversely affecting surrounding residences. By classifying them as conditional uses, separate regulations can be imposed to mitigate the adverse impacts. In some states, conditional uses are classified as special-exception uses. In all cases, the conditions must be specific.

Rezoning: The legislative act of changing the existing zoning on a parcel to a new zoning category.

Variance: "Permission to depart from the literal requirements of a zoning ordinance." But there are different types of variances including hardship variances, planning variances, and use variances. Each has different requirements and in some cases (use variances, for example) may require a super majority of the approving authority.

Question from Syrette Dym, AICP, Senior Vice President, Saccardi & Schiff, Inc., White Plains, New York:

I am looking for definitions of "seasonal use." Many other definitions refer to it, such as camps which shall be only for seasonal use, but then fail to define it. Only one ordinance in my Hudson Valley New York region approaches the issue in its definition of camp by identifying them as "...living quarters for temporary occupancy and normally not arranged or intended for such occupancy, except during the period or part of the period from April 1 to December 1 in any year." Can you direct me in any way?

Answer from author Harvey Moskowitz:

We define a seasonal use in The Latest Illustrated Book of Development Definitions, due out in March 2004, as: "A use carried on for only a part of the year."

Under comments, we note: Typical seasonal uses are recreational activities such as outdoor swimming or skiing, but they also include farm stands and Christmas tree sales. Zoning regulations should consider the fact that the use is in place or being used for only a relatively small part of the year. Bulk controls can be waived or relaxed for many of these uses, although some site plan review may be needed to ensure adequate parking and safe circulation.

In other words, the definition can be broad, but in the regulations you should set up specific controls on the seasonal uses which you are trying to regulate. A good way is to set them up as conditional uses or special permit uses which allows for more flexible controls.

Question from George A. Berger, AICP, Program Manager, Economic & Community Development, City of Newport Beach, California:

What do you think the most constitutionally consistent definition for "sign" is? We've got a problem regulating murals/signs/art that we'd like to get square on — essentially, how do we define painted wall art so that the advertising part can be adequately addressed while the rest of the mural is left out of the picture (so to speak)?

And, what's the best way to define mural so people will know what crosses the line between art and advertising — in other words, if you're a coffee shop owner, can you paint non-descriptive coffee cups on your wall and have it not defined as advertising? Or if you own a surf shop, can you install a mural that depicts surfers or the waves without having it all classified as a sign?

Answer from author Harvey Moskowitz:

We define a sign as: "Any object, device, display, or structure, or part thereof, situated outdoors or indoors, that is used to advertise, identify, display, direct, or attract attention to an object, person, institution, organization, business, product, service, event, or location by any means, including words, letters, figures, design, symbols, fixtures, colors, illumination, or projected images."

A mural is a wall sign and should be regulated as any wall sign in the district where located.

Two good references on sign control are: APA's The Mechanics of Sign Control, Planning Advisory Service Report No. 354, 1980; and Sign Regulation for Small and Midsize Communities, Planning Advisory Service Report No. 419, 1989.

Also, look up APA's Aesthetics, Community Character, and the Law, Planning Advisory Service Report No. 489/490, 1999.

Question from David Reiff:

I am a lawyer in a small town in northern Wisconsin. I have a case with a question concerning zoning. A local town passed an ordinance regulating gravel pits, including setbacks: 100 feet from an adjoining boundary or road, 600 feet from any building designed for animal or human habitation. The town claims this is a licensing ordinance. My client claims it is a zoning ordinance. Wisconsin case law holds that zoning is the division of land into districts, which the town did not do, but other cases hold that land-use regulation. The enabling statutes state that zoning municipalities may create districts. The town failed to comply with the procedural or substantive safeguards contained in the zoning statutes. My question is do you think the ordinance is zoning or license? If zoning, do you have references?

Answer from author Harvey Moskowitz:

I may need some more information on the specifics of the case but let me give it a try based on the information you provided.

In the Latest Illustration Book of Development Definitions (due out in March 2004) we define Zoning as "The delineation of districts and the establishment of regulations governing the use, placement, spacing, and size of land and buildings." Even if Wisconsin case law says that zoning is the division of land into districts, inherent in the division are what uses are permitted and the requirements under which the permitted uses can locate. If the gravel pit is a permitted use in the zoning district in which it is located (or even its own district) then its a zoning statute provided the town has met the statutory requirement on publication, notice, etc.

If the town does not have a zoning ordinance, the regulations on the gravel pit might very well be part of a licensing ordinance. I am not familiar with Wisconsin law as to what are requirements for licensing certain uses.

In addition, zoning and licensing may overlap. For example, a gravel pit might be a permitted us in the heavy industrial zone, but the municipality might still decide that it wants to license the use because the gravel pit can be very obnoxious with noise, dust, etc. (not your client's, of course). The annual licensing requirement can trigger a visit from the construction official or zoning officer to determine whether all requirements are in place.

Question from Joseph W. McManus, AICP, Zoning Consultant-Zoning Code Re-Write Project, Miami-Dade County Department of Planning & Zoning:

We are trying to differentiate between a junior department store, variety store, major department store/regional shopping center, and a big box retailer/discount center, as each of the four are assigned to different business/industrial zoning districts. In the past, our internal memos have resorted to using store names, e.g. Burdines, Jackson-Byrons, etc. Are the terms "junior department store" and "variety store" even viable today?

Answer from author Harvey Moskowitz:

Answering your last question first, about whether the terms "junior department store" and "variety store" are still viable, in our opinion they are not. But in PAS Report Number 491/492, A Glossary of Zoning, Development, and Planning Terms, variety store is defined as "A retail store that sells a wide variety of relatively small and inexpensive items" (Valdez, Alaska), p. 249. In the same publication, a junior department store is not defined, but department store is defined as "A business which is conducted under a single owner's name wherein a variety of unrelated merchandise and services are housed enclosed and are exhibited and sold directly to the customer for whom the goods and services are furnished." (Maple Grove, Minnesota), p.80. A junior department store could then be defined as a small department store or (unlikely) a department store catering only to small fry.

Your question focuses on one of the problems that planner encounter with respect to trying to define terms. I think the focus has to be in terms of impacts and markets, so Dade County is correct in assigning various types of retail establishments to appropriate zones. Let's look at major department store/regional shopping center and big box retailer/discount center. In the 3rd edition of The Latest Book of Development Definitions (due out in March 2004) we define Retail Store, Large-Scale, as "Retail sales establishment in freestanding industrial one-story buildings, with floor area of approximately 100,000 to 200,000 square feet." In the comment accompanying the definition we include in this category big-box retailers such as Home Depot, Wal-Mart, Target, discount department stores such as Kohls, warehouse clubs such as Sam's, category killers such as Barnes & Noble, and outlet stores which are usually the discount branches of national department stores. We further note that some of these stores are located in conventional regional centers, often as freestanding stores, in power centers and value malls which combine all types of major retailers and smaller stores. and as free standing buildings. The comment goes on to discuss scale, contextual sensitivity, design criteria, parking, setbacks, landscaping, and bulk controls.

Development Definitions also defines shopping centers as: "A group of commercial establishment planned, constructed, and managed as a total entity, with customer and employee parking provided on site, provision for goods delivery separated from customer access, aesthetic considerations, protection from the elements, and landscaping and signage in accordance with an approved plan. Under comments, four different types of centers are defined as: superregional center (1 million sq. ft. on more than 100 acres); regional shopping center (400,000 to 1,000,000 sq. ft. on 40 to 100 acres), community shopping centers (about 150,000 sq. ft. on 10-25 acres) and neighborhood shopping centers (up to 100,000 sq. ft. and up to 10 acres).

In summary, variety and junior department stores need not be separately defined, major department stores, big box retailers and discounters can be included under a single category (large scale retail stores) and shopping centers should be defined depending on size (square footage and land area). Finally, we also define Retail Store, Convenience as: "A retail establishment of up to 5,000 sq. ft. selling primarily food products, household items, newspapers and magazines, candy, and beverages, and a limited amount of freshly prepared foods such as sandwiches and salads for off-premises consumption." The comment notes that planning concerns that need to be addressed in the regulations include location and number of parking, landscaping, lighting, litter control and aesthetics.