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Thread: Contract zoning

  1. #1
    Cyburbian Dashboard's avatar
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    Contract zoning

    Anybody know where I can find out about different states experiences with contract zoning...especially in relation to the Master Plan?

  2. #2
    moderator in moderation Suburb Repairman's avatar
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    My understanding is that contract zoning is a no-no, no matter what state you are in. However, most cities have a seperate "specific use permits" that create a process for attaching conditions for permitting a certain use on a certain property. Some cities also have conditional use permits that create a standard set of conditions for a certain use in a certain district so long as it meets the written criteria.

    You may want to clarify your question a little more because I'm not sure I'm understanding it correctly.

    "Oh, that is all well and good, but, voice or no voice, the people can always be brought to the bidding of the leaders. That is easy. All you have to do is tell them they are being attacked and denounce the pacifists for lack of patriotism and exposing the country to danger. It works the same way in any country."

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  3. #3
    Cyburbian Budgie's avatar
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    Planned Unit Development is another way of saying "contract zoning"..... well, almost.
    "And all this terrible change had come about because he had ceased to believe himself and had taken to believing others. " - Leo Tolstoy

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    Cyburbian Dashboard's avatar
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    To clarify my original question a bit...Most communities preach that if you follow the Master Plan, the courts will support you. In essence, contract zoning encourages arbitrary spot zoning and bargains away the zoning power. I think there are about 11 states that allow contract zoning. I'm curious how communities in these states have dealt with complications that may arise in zoning enforcement or if they have to go to court to defend their decisions.

    Michigan Governor Jennifer Granholm is on the verge of signing some new bills that will legalize contract zoning. Many are concerned that contract zoning will allow developers to bypass master plans.

  5. #5
    Cyburbian nerudite's avatar
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    We used to use contract zoning occasionally in Oak Harbor, WA. It wasn't very often, but it was used on certain occasions where we wanted specific mitigation measures to be written into the zoning on a site. I believe it is used by many municipalities in Washington for similar reasons. www.mrsc.org has a collection of several online ordinances and a decent search engine. I'm sure if you do a little digging in that site you could find several examples.

    Edit: I read your clarification in the above post after I wrote this response. I believe most municipalities that allow contract zoning specify that it must be in accordance with the master plan. As an example, here is a caption from Okanagon County's code:

    17.37.070 Contract Zoning - To the extent permitted by law, the county may enter into an agreement with the applicant for, or the beneficiary of, a proposed amendment action, executed concomitantly with and as consideration for approval of the amendment, for the purposes of mitigating public burdens caused by the proposed use and to maintain harmony of the proposed use with the Comprehensive Plan.
    Prior to specific wetland ordinances, we used contract zoning in Oak Harbor to enforce wetland protection on certain sites. Enforcement was carried out through the regular channels, which included court appearances once it went past our administrative procedures.

  6. #6
    Cyburbian munibulldog's avatar
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    Thanks for the heads up on the contract zoning legislation. I will check it out... after the holiday break!

    Here is the problem: if you can't change your zoning ordinance fast enough to meet the changes in demand for different types of development, you have to be flexible and use PUD's and other negotiated methods of development control. If you don't change your zoning in unison with the development market, it causes more problems than it solves. Not to say you allow all new development, but that you recognize what the demand for new buildings and uses is, and you make guidelines to allow them to fit in their appropriate districts.

    Unfortunately, most cities can't review and amend their zoning ordinances fast enough, so they are always behind the ball. Contract zoning can allow good developments to happen, even if your ordinance disallows them. It can be very helpful in areas where change is happening quickly.

    I would like to hear about any negative experiences with contract zoning, and how to avoid them if possible.

  7. #7

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    Contract zoning represents a complete failure of the planning process, including in those states which permit it. It is seen as preferential treatment for developers and undercuts the credibility of planning in a major way. You can accomplish all of the same goals in a well-designed planning process that has citizen support, if you are willing to work through that process and you are willing to integrate performance zoning concepts into your system.

  8. #8
    Forums Administrator & Gallery Moderator NHPlanner's avatar
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    Quote Originally posted by Lee Nellis
    Contract zoning represents a complete failure of the planning process, including in those states which permit it. It is seen as preferential treatment for developers and undercuts the credibility of planning in a major way. You can accomplish all of the same goals in a well-designed planning process that has citizen support, if you are willing to work through that process and you are willing to integrate performance zoning concepts into your system.
    As usual Lee...right on target.
    "Growth is inevitable and desirable, but destruction of community character is not. The question is not whether your part of the world is going to change. The question is how." -- Edward T. McMahon, The Conservation Fund

  9. #9
    Cyburbian Breed's avatar
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    Quote Originally posted by Lee Nellis
    Contract zoning represents a complete failure of the planning process, including in those states which permit it. It is seen as preferential treatment for developers and undercuts the credibility of planning in a major way. You can accomplish all of the same goals in a well-designed planning process that has citizen support, if you are willing to work through that process and you are willing to integrate performance zoning concepts into your system.
    I do have a question though... what separates contract zoning from a PD or development agreement? It seems to me as though they both could very easily be corrupted into a legal battle dealing with inequity.
    Every time I look at a Yankees hat I see a swastika tilted just a little off kilter.
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  10. #10

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    The difference between contract zoning and a development agreement is clear. A development agreement is a contract that memorializes and enforces conditions of approval which have emerged from the development review process. A development agreement says, to take a trivial example, that the developer will install three flower planters of X size, by X date. It may also say that the developer will place $X in an escrow account, or provide another other form of security, that the flower planters will, in fact, be installed as promised. A development agreement cannot change the terms of the regulations, it can only implement them.

    There is, at least in the way certain communities use it, less difference between contract zoning and various types of planned developments. We had a thread on this not so long ago. Used properly, and I argue that it should not be used very often (if it all), a PUD is also a tool for implementing a set of standards, instead of for making up the rules as you go.

  11. #11
    Cyburbian Dashboard's avatar
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    Just to update everyone, especially those in Michigan - The Governor signed three bills into law on December 30, 2004, authorizing cities and villages, townships, and counties to consider contract zoning proposals.

    Contract zoning is now legal in Michigan. (Public Acts 577, 578, 579 of 2004)

  12. #12
    Cyburbian Big Red's avatar
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    I'm from Michigan and I gave a presentation to the local Planning Commission about "conditional" rezoning last Monday.
    I was testing if they were open to a voluntary offer for conditional rezoning on a unique piece of property bounded by a State Highway, a Natural Area, and high density residential. The 11 acre parcel is zoned Ag. It sticks into the Natural Area and has two houses, 6 buildings, a tennis court, and a pavillion on the acreage closest to the highway. I would like to have the 5 acres along the highway rezoned to R1, one acre homesites, and deed the "back" 6 acres to the township Natural Area.

    It was split about 50/50. Some were open to the proposal while others tried to think up various reasons why it wouldn't work, generally those opposed were concerned about "how it would look". Since this type of issue can clearly be addressed in the proposal as part of the conditions for the rezoning I think I will move ahead.
    Granted, this is also a very new planning tool and since the township is already being sued six ways from sideways they were naturally cautious.
    That said, I have noticed that my standard for development is much higher than what is already generally accepted as "great" here. So, with common water and waste provisions, control point access to the natural area, "green" building codes and building envelopes, architectural controls, etc. that I would do anyway it seems that a straightforward case and plan could be presented for the rezoning.
    Yeah, and monkeys might fly out of my butt...
    Maybe the most any of us can expect of ourselves isn't perfection but progress.

  13. #13
    Cyburbian Big Red's avatar
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    Cautionary note on contract zoning use from PZN

    "Michigan Association of Municipal Planners is urging municipal attorneys NOT to use the new contract zoning authority until certain constitutional issues associated with it have been addressed in corrective legislation."

    There is a strong consensus that due to the speed at which this bill moved through the legislature and the that because MML and the Michigan Sociey of Planning had no opportunity for comment that the law may lack statutory authorization under the constitution.

    Basically, the reccommendation is that if a municipality has other ways of dealing with use questions like, PUD, OSD, rezoning, etc. That all other options be completely exhausted before a municipality wades into a murky swamp that they may never get out of...

    "It is premature to use this authorization in view of the lack of standards for application, if the community uses the authorization once, due process and equal protection issues may well arise upon denying it's use to a similarly situated party."

    All I can say is...
    Thanks for telling me now.
    Maybe the most any of us can expect of ourselves isn't perfection but progress.

  14. #14
    Cyburbian Wannaplan?'s avatar
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    Interesting. Can you provide a link? I'd like to read more.

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    I believe we all tod you that using contract zoning doesn't make any sense, anyway.

  16. #16
    Cyburbian Big Red's avatar
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    I believe we all tod you that using contract zoning doesn't make any sense, anyway.

    Yeah, M'Kay, thanks...


    I don't have a link, but the article is in Planning and Zoning News Vol. 23 No. 4 February 2005 edition
    -but you could probably get a copy of the advisement letter from Gerald Fisher
    gfisher@secrestwardle.com

    Steve Langworthy has also written an article on contract zoning lang@lsplanning.com
    that will appear in next months Michigan Planner magazine.

    The typical elements of contract zoning deals seem to be the same things that are usually included in "Development Agreements". But since the new law was not well defined most community representatives will shy away from these types of deals even though they could detail many more restrictions, improvements, and developer obligations than a normal PUD or OSD
    Maybe the most any of us can expect of ourselves isn't perfection but progress.

  17. #17
    Cyburbian PlannerByDay's avatar
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    Quote Originally posted by Big Red
    I don't have a link, but the article is in Planning and Zoning News Vol. 23 No. 4 February 2005 edition
    -but you could probably get a copy of the advisement letter from Gerald Fisher
    gfisher@secrestwardle.com

    Steve Langworthy has also written an article on contract zoning lang@lsplanning.com
    that will appear in next months Michigan Planner magazine.
    I have a PDF file of this article. Is it possible to post .PDFs for viewing on here?

    I could e-mail to people if you PM me you address.

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