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Martin Laplante

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Tue, 08 May 2007

Zoning Exceptions and the Failure of Planning

The theory of zoning is to make new development compatible with existing users of land, while treating all landowners equitably. If one landowner has the right to build one thing and the one next door has very different rights, then something is wrong. There are legitimate reasons why they may have different rights. To preserve the equitable treatment of landowners, there are two ways in which to make exceptions: One is to have an comprehensive plan that explains in terms of officially accepted land use objectives why people on one side of a dividing line should have rights different from those on the other side. The other is the variance route, a way for an individual property owner to argue why one lot in particular should be exempt from a general rule because his lot differs sufficiently that the spirit of the zoning rule is better applied with a variant on the letter of the rule.

When exceptions to the general rule are granted for other reasons, one can reasonably suspect that influence is at work to promote the interests of one owner over the other. Planners in some cities (Toronto, and sometimes others) have argued that these exception have become required because the official plans have not kept up with changing conditions. Individual landowners can justify the cost of re-zoning, or if required of making a small change to the comprehensive that only applies to them, but not of redoing the entire planning exercise.

Essentially, owners and planners ask for rezoning arguing that the rezoning is in accordance with the "Shadow Plan", as I call the unpublished plan in the heads of senior planners. This plan is the set of reasonings determining what zoning changes they will consider reasonable even though it is not in accordance with the official comprehensive plan. You can well imagine what knowledge of and influence over this shadow plan is worth to a developer. They can buy land valued by others according to the official comprehensive plan, and re-value it according to this shadow plan.

The "Shadow Plan" comes into effect when a few conditions arise: one is a divergence in vision between those who create the plans and those who deal with applications for changes. In some cases, the official plans may be for public consumption only, given that the are developed with a degree of public consultation and democracy that creates a momentum that no one dares challenge, but knowing that the philistines can later be kept out of the important work of development decisions. Another condition is a land market that depends on zoning changes. Once the expectation has been established that serious development proposals can get zoning changes, land values go up to unrealistic levels. The traditional mantra of developers that they can not afford to develop anything within existing zoning and that their children will go hungry if they have to follow the regulations may have a tiny speck of truth to it. Breaking out of that vicious circle requires both the elimination of the "shadow plan", either by adopting one that is enforceable or by some backbone in enforcing it, and a change in the political culture whereby following the rules is for suckers.

The practice of changing the zoning for a single parcel only is sometimes known as spot zoning. It is illegal in some jurisdictions. It is definitely frowned upon as a failure in the planning process elsewhere. It creates a patchwork of small irregular zoning areas that are tantamount to not having zoning at all - everything is changeable if you ask the right way.

How changeable is zoning? What is the "right" size for a zone? Is spot zoning a symptom of a malaise in planning and if so is the problem influence or lack of comprehensive plans?

In a nearly-scientific study, I assembled a few zoning maps from different cities to see how many zones and exceptions were typical. The methodology is not extremely rigorous but here it is. First, I searched for online zoning maps in cities that are reputed for patchwork zoning. "Reputed" depends on what I've read or who I've spoken to lately. Second, I looked for generally comparable areas, somewhat hampered by my lack of in-depth knowledge of many of these cities. Starting from downtown, I went generally West, or if it seemed that West would encounter some geographical obstacle I chose another likely-looking direction. I was looking for a 100-block area, reasonably close to downtown, with mostly residential but partially commercial zoning. I was looking for a 100-block area that included if possible two distinct types of street layout. My guess was that these were the types of areas where there would be some development pressure and some local resistance. It happens that this often hit poorer areas of town. Anecdotally, poorer areas of town can be subject to more development pressure since residents are often renters and may not be well equipped to influence political decisions.

So here are the results (click pictures to zoom) :

New York zoning First, New York City. In this planning map, there are about a dozen zones, from R4 to R7, and a couple of C4-3 presumably commercial zones. All of them are at least a block. One area boundary is in the process of a proposed change. New York City's zoning dates back to 1961 and has been changed remarkably little, considering.
Washington DC zoning Washington DC has less than 10 zones. Sorry, the streets don't quite show up in the picture. The zones seem rational, even cartesian, with commercial streets backing on to R4 areas a block or two wide, and large areas of R1 and R3. Residential areas are in similar zones, and all of them are within walking distance of commercial streets.
Philadephia zoning The Philadelphia example is an interesting one. Although the street grid obviously has a fair bit of history, the number of zones is about a dozen. The zone boundaries are somewhat irregular, and there are some but not very many sub-block zones.
New York zoning The Chicago sample is somewhat different. Here we see an underlying major zoning, with specific small areas zoned differently. The vicinity of major streets seems to make clusters of alternative zoning more likely, but it does not seem like a planned approach, more likely changing the zoning to reflect what is on the ground.
Vancouver zoning Over in Canada, Vancouver is nearly as orderly as DC. The frontage of certain streets consistently has one zoning while the interior has another. Commercial uses cluster around major arteries. The same zoning applies to small and large lots. Zoning area boundaries are more often the rear laneway rather than the street, for a zoning approach that is more oriented to street frontage than to blocks.
Victoria zoning Victoria, across the strait from Vancouver, has much more of a patchwork approach. There are several dozen different zones. Large lots tend to have different zoning from the smaller lots around them. Many sub-block single-lot zones exist. This is particularly the case for what looks like older street and lot layouts in the southern section, with more uniform zoning in what looks like more recent single-use residential lots to the north.
Calgary zoning Calgary is another example of this. The large lots on curvilinear streets have uniform zoning, where public uses are the only exceptions. Where there is a variety of lot sizes, but generally smaller lots on a grid layout, is where we see a variety of zoning. Many of them are single lots of higher density or commercial zoning.
Ottawa zoning Ontario has generally more chaotic zoning than other jurisdictions, but Ottawa is probably the extreme case. There are parts of the city where almost every lot has its own distinct zoning, with special deals for height, density, or a schedule of exceptions. The brown areas are heritage overlays. This map is actually the proposed zoning after the comprehensive zoning review, the last one of which for this area was 10 years ago. It's not for lack of recent planning reviews, the latest Official Plan is quite recent, and the area is well covered by recent secondary plans and urban design plans. It is also not for lack of a variance mechanism, several hundred are granted every year, and they routinely grant several extra storeys, reduce setback on regular rectangular inside lots, and grant more density when zoning changes has failed to grant it. I'm not certain how this zoning can be explained.

So what works best? Some cities have little or no zoning at all. Houston is the most famous example. Is this the cause of sprawl, or are zoning codes the cause of sprawl? Similarly, zoning can be very restrictive, forcing complete separation of uses, or the regulations can be comprehensive enough for a single zone to allow the fabled "mixed use" while constraining it so that the market does not re-segregate the uses. But what does not work is sucker zoning, where your property right are whatever you can cajole and bully the city into giving you.


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