Zoning Practice — January 2009

Ask the Author

Here are reader questions answered by Gail Easley, author of the December 2008 Zoning Practice article "Overhauling Your Zoning Code."

Question from Flavio Malta, São Paulo, Brazil:

I am an architect and work as a planner for a small coastal resort in the northern coast of São Paulo, Brazil. São Sebastião is a typical planning case, due to its combined economy: domestic tourism and sea port activities related to oil and natural gas.

Our local zoning code is outdated since the 1980s, and society can no longer wait for better regulations. I understand the need for innovative methodologies to catch up with new times and developments. As you may know, Brazilian authorities have just passed a number of new laws concerning urban planning and local participation, and this is some kind of challenge for local planners over here.

Could you please comment? I thank you very much!

Answer from author Gail Easley:

I think a good approach would be to combine the approach of incremental changes to fine-tune the code with an eventual overhaul and replacement of the code. How would this work? First, assess the problem by determining which regulations are no longer consistent with current legislation and which regulations are so outdated that they produce unacceptable results. Hopefully, the number of changes required to address these two situations is small enough to be manageable. Modify your code only to address these immediate problems. At this point, I would not be so concerned with trying to incorporate all of the latest innovative techniques so much as you should address eliminating regulations that yield bad results or create legal risk by not conforming to legislation.

In the meantime, proceed along the path of completely overhauling your code. You can benefit from the modifications made to address immediate problems and can incorporate these new/modified regulations into the replacement code. This will also allow you a little more time to evaluate the various contemporary approaches to regulation that will be best for São Sebastião.

If the immediate problems are simply too widespread to allow an incremental approach, consider developing a priority list and making the incremental changes in the order of priority. This will allow you to better manage the resources available to do the work, eliminate the worst of the regulations, and continue making progress toward a better code. Again, in a parallel work program, you should be working toward the complete overhaul.

This dual approach is cumbersome, but if you have pressing issues and cannot wait 12 to 18 months for a complete overhaul to be completed, it is really the only way to move forward. You will not be well served by addressing only immediate needs because the larger problem of an outdated code will remain.

Question from Lois Villemaire, Project Manager, Zoning Code Rewrite, Maryland-National Capital Parks and Planning Commission:

What resource would you recommend to update definitions in a zoning code rewrite? Your article is very helpful and we will use it as a guide as we continue in the process of rewriting and updating the zoning code.

Answer from author Gail Easley:

I have found the PAS report A Planners Dictionary to be very helpful as it provides multiple definitions to consider. This allows me to see the shades of meaning for a term and helps me determine exactly how I want to define a term that has specialized meaning. I also look at some additional sources: (1) definitions in state law that may direct or limit the way I can define a term for location application; (2) for municipalities, I look at the county definitions in its code for comparison; (3) other similar jurisdictions in the area to determine how other jurisdictions are defining a particular term.

A word of caution: Define only those terms that have a specific meaning in your application of the term. Words defined in a commonly accepted dictionary do not need to be defined. Secondly, and even more importantly, do not include regulations within a definition. For example, a home occupation is a business conducted in a residence (generally speaking). A set of regulations may limit employees, type of business, proportion of the home used for business, and so on. These regulations should not be part of the definition.

Question from Lois Villemaire:

Do you have a recommendation on a simple and effective numbering system?

Answer from author Gail Easley:

I very much prefer an outline style as described below.

1.00.00 – where "1" is the chapter or article number, the first ".00" is a main heading for a single topic, such as "Flood Damage Prevention", and the second ".00" is a main hearing within the topic, such as "Applicability." See the following example of an arrangement:

Chapter 2.

chapter example

Under a second-level heading, A, B, C ... defines third level headings. Within the third level, 1, 2, 3 lists regulations. No paragraph or table is without a discrete citation. I make every effort to have no outline extend below a, b, c within a numbered section. This requires me to consider how regulations should be grouped to avoid sub-sub-sub sections.

Question from Lois Villemaire:

What is the best way to submit a zoning code rewrite to the approving authority? For instance, in sections, or as one complete product?

Answer from author Gail Easley:

If your approving authority is willing to hold numerous workshops, you can submit one or several related chapters for a workshop and then hold a "final" workshop on the entire document. Some approving authorities are willing to commit the time for this approach. More often, you should follow the process outlined in Zoning Practice for submittal to staff and planning commission review and submit a complete product to the approving authority.

Question rom Lois Villemaire:

Do you have comments on updating industrial uses with NAICS terminology?

Answer from author Gail Easley:

I do not recommend it. The classification system is not related to land-use issues, such as compatibility, scale, or impacts from the use. It is related to the type of business. An example: Within "retail trade" is a category for "building materials and supplies dealers." This includes everything from a home improvement center to a hardware store. From a land-use and zoning perspective, you are concerned with scale, location, impacts, compatibility, signage, parking, and so on, rather than the classification of the business within. Even assuming that you can separate uses at the most detailed level of the classification, how is it helpful to distinguish between "hardware" where tools are sold and "paint store" where paint and wallpaper are sold? And when you get to this level of detail, your tables of uses are huge and cumbersome. But at a more general classification level, there is no distinction between home improvement centers, which are typically "big box" stores, and a hardware store, which is a much smaller scale.

Question from Anthony Kobak, Chief City Planner, City of Youngstown, Ohio:

What would you consider an approximate cost for a total rewrite of our zoning code? Our city stats are as follows:

Population of 82,000
34 sq. mi.
Zoning code from 1969 based on 1952 comprehensive plan
Recently completed new comprehensive plan (new zoning code is an implementation step of new plan)

Answer from author Gail Easley:

I can provide only a very general response, as there are more factors to consider than population and age of the code. For example, a code that is primarily text and tables will cost less than a code that is rich in graphics, which will be less than a code that is interactive (digital links from, say, a regulation to pertinent definitions; or definitions with graphics that appear in windows when the word is selected).

The extent to which your city regulates all development matters or relies on other agencies that issue permits will have an impact on the content and cost of the code. For example, wetlands permits may be issued by a state agency, and the local government requires proof of permit but has no additional local regulations.

Another issue is whether you want a rewrite of only the zoning code or the creation of a unified code where all development regulations are included.

Typically, a significant issue when hiring consultants is the number of workshops, meetings, and hearings. The cost of researching and writing the code is one budget consideration, but the cost of preparing for, traveling to, and attending workshops, meetings, and hearings is another.

I cannot even suggest a range without more information. Hopefully, these comments will help you consider the costs you should consider in a budget for a code rewrite.