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Thread: Exclusive overlay district

  1. #1
    Cyburbian mallen's avatar
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    Exclusive overlay district

    In my community there is a push by a group of influential individuals that want to create an overlay district to govern how a certain area that they live in will develop. It is not zoned uniquely, but it has become an exclusive enclave in the community.

    There are some remaining underdeveloped tracts in the area. This group of property owners wants to formalize the area's "character" by creating an overlay that would, in effect, ratchet up standards to "protect the character" of the area. Basically they want to increase minimum lot sizes, house sizes, building materials, etc.

    I am not a "nazi, socialist planner" by any means, but I have a difficult time justifying using regulations in this way.

    I am trying to convey to my council that overlay districts are generally for geographic areas that have legitimate unique circumstances (such as groundwater recharge areas, water supply watersheds, historic downtowns, etc.) and not to preserve an exclusive (ie wealthy) character.

    Any ammunition that I can use to defend by position?

  2. #2

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    Well, what these folks are really asking for, and what your legal counsel should also recognize, is not an overaly. They are asking for a map amendment. If planning and legal staff both were to agree that it has to be a map change, to a new district, that might cast some light on it.

  3. #3
    Cyburbian jmello's avatar
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    Quote Originally posted by mallen
    This group of property owners wants to formalize the area's "character" by creating an overlay that would, in effect, ratchet up standards to "protect the character" of the area.
    Isn't this what all zoning is really about?

  4. #4
    Cyburbian mallen's avatar
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    Yes. But basically what they want to do is create exclusive standards that require $1,000,000.00 homes in their enclave. It is zoned the same as other parts of the city, but they want to change the rules because they built big houses and now want everyone else to build big houses. In my opinion there is no legitimate reason to do that.

  5. #5
    Cyburbian SGB's avatar
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    [sarcasm]
    In lieu of an overlay district or a zoning map amendment, these concerned neighborhood property owners can always buy the properties themselves and place private restrictive private covenants on them prior to resale to the right type of people.
    [/sarcasm]
    All these years the people said heís actiní like a kid.
    He did not know he could not fly, so he did.
    - - Guy Clark, "The Cape"

  6. #6
         
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    My community does have a provision for a character overlay district to preserve the uniqueness of an existing neighborhood. It has never been used in the eight years it has been available in the code. I personally dislike overlays because everywhere I have worked they are not well administered. After a few years and a change in staff they get forgotten until something gets built out of compliance and the neighbors rightfully go ape. If the existing zone district doesn't work maybe a new one could be created and the area rezoned.

  7. #7
    Cyburbian jmello's avatar
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    Quote Originally posted by mallen
    Yes. But basically what they want to do is create exclusive standards that require $1,000,000.00 homes in their enclave.
    Sounds like status quo in New England. Is this unusual where you live/work?

  8. #8
    Cyburbian imaplanner's avatar
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    Not knowing the specifics of the planning laws in the state you live in (not knowing the state you live in) I don't know that I can comment too much. But I will remark that ultimately zoning is supposed to protect and implement the ideas of the citizens of the community - and if the citizens want one thing and it's not inconsistent with state law than what is the objection?

  9. #9
    Cyburbian wahday's avatar
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    This sounds like it could be treading into the domain of "exclusionary zoning"

    You may try looking at the Mt Laurel Doctine. This was a landmark New Jersey case in which Mt. Laurel's zoning requirements of large lot sizes and minimum square footage for houses was deemed unconstitutional (according to the state, not the federal constitution). It has been used to argue many such situations around the country ever since.

    Here's a link to some great info about the case and topic in New Jersey:

    http://njlegallib.rutgers.edu/mtlaur...utmtlaurel.php

    I realize you are not in New Jersey, but this could be a good place to start...

  10. #10
    Cyburbian mallen's avatar
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    Quote Originally posted by imaplanner
    But I will remark that ultimately zoning is supposed to protect and implement the ideas of the citizens of the community - and if the citizens want one thing and it's not inconsistent with state law than what is the objection?
    Well, I really have 2 related - but separate - objections.

    First, I do not believe this is an appropriate use of an Overlay District. An Overlay District is a useful (and appropriate) tool to establish a set of standards or requirements for one area that does not necessarily apply to community as a whole. But the key is that there must be a compelling reason to do this in lieu of establishing consistent standards for the entire community.

    Overlay districts are commonly used for protecting/enhancing historic areas. They are also used in areas that require special environmental protection (water supply watersheds, groundwater recharge areas, areas of steep slopes, poor soils, etc.).

    They key to a successful (and legal) restrictive overlay district is to be able to identify a unique and bona-fide situation that genuinely warrants protection. People generally accept historic character, special environmental protection, etc. as legitimate areas of concern.

    In this case the goal would be to protect the character of a high income area that really has no unique features other than income bracket. The real question at hand is: What unique set of circumstances exist for this area that warrants treating it differently than the rest of the City? (ie why are different zoning rules needed here rather than everywhere. Trying to maintain a higher "quality" (ie exclusive) enclave is difficult for me to defend. Courts generally smile on environmental protection, but frown on perceived "exclusive" standards.

    If this area was characterized by farms (instead of just very expensive suburban homes), it would be easier to identify a genuinely unique and threatened character.

    Character is created by land uses not income bracket.

    Secondly, even if it is an appropriate use of an Overlay District, I still have a problem about using zoning to create such exclusionary standards. Furthermore, I agree that we can probably find a way to do this legally if we really want to (we can simply create a new zoning district and initiate a zoning change for this area to that new district with these new standards). But using the power of zoning to create discriminatory standards really bothers me. Maybe its just me, but I also have a problem with cities than ban pickup trucks in the driveway (yes, some do).

    I donít have a problem with establishing appropriate standards that genuinely benefit the welfare of the community. Heck, I do that all the time. But unfortunately we work in a world without many bright lines to follow. We have to use our professional judgment. This situation doesnít pass the smell test for me.

  11. #11
    Cyburbian mallen's avatar
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    Quote Originally posted by wahday
    Here's a link to some great info about the case and topic in New Jersey:
    http://njlegallib.rutgers.edu/mtlaur...utmtlaurel.php
    Perfect, thanks.

  12. #12
    Cyburbian donk's avatar
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    We have 31 distinct residential zones, with about 6 that were created to maintain teh "exclusivity" of various neighbourhoods. Depending on the number of lots, the areas and your enabling legislatation it may just be easier to create a new zone for the area and be done with it.
    Too lazy to beat myself up for being to lazy to beat myself up for being too lazy to... well you get the point....

  13. #13
    Cyburbian permaplanjuneau's avatar
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    sarcasm? really?

    Quote Originally posted by SGB
    [sarcasm]
    In lieu of an overlay district or a zoning map amendment, these concerned neighborhood property owners can always buy the properties themselves and place private restrictive private covenants on them prior to resale to the right type of people.
    [/sarcasm]
    I have to agree that this idea sounds like the owners are pushing for exclusionary zoning, and that's something I can't stomach ethically. That said, I think SGB is on the right track in this case, sarcastically or not. If these people can't stand the thought of something less than a $1 mil. home on an adjacent lot, then they should step up and make the investment to make it happen. I've seen plenty (too many, IMO) of places where this happens--I taught skiing in Park City, UT for several years, and there are neighborhoods all over the place there with restrictive covenants on the land requiring residences of certain sizes and certain finish materials, as well as landscaping and other standards. One such neighborhood even had its own architectural review board--if they didn't like the design of a home, they simply said "no," and the property owner went back to the drawing board. I was there at a time that a yurt was put up on one such lot, and was forcibly removed by the neighborhood association because it didn't meet the covenants of the development, even though it met all local requirements.

    We haven't had any houses built on it yet, but a developer recently subdivided an island (http://www.spuhnisland.com) and recorded covenants and restrictions that specify the minimum size of homes and uses not allowed on the properties. It will be interesting to see how the development progresses, and we expect to start reviewing building permits for this development this year. Of course, any development that you need a boat to get to is by default "exclusive" economically, but the developer didn't want too many locals (nearly all of whom own boats) messing up the ambiance of thier island for the multi-millionaires they expect to build vacation homes there.

  14. #14
    Cyburbian
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    Wouldn't simple market economics exclude people who wouldn't build similar homes as seems to be the norm in this neighborhood. The price of the lot should exclude most people from moving to this neighborhood. That is why the lots are still vacant I'm guessing, people who aren't rich can't afford them. Thats why they call them exclusive neighborhoods. They exclude 99% of the world.

  15. #15
    Cyburbian mallen's avatar
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    Quote Originally posted by Planner22
    Wouldn't simple market economics exclude people who wouldn't build similar homes as seems to be the norm in this neighborhood. The price of the lot should exclude most people from moving to this neighborhood. That is why the lots are still vacant I'm guessing, people who aren't rich can't afford them. Thats why they call them exclusive neighborhoods. They exclude 99% of the world.
    Yes. But they want to control the situation instead of being passive.

  16. #16
    Cyburbian Queen B's avatar
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    Well let's look at this on the opposite end of the spectrum.

    We have zoning regulations that don't allow mobile homes in most areas of our zoning, it seems reasonable to me that with an active voice that one could argue the other end of that.

    Do those of you that have a problem with allowing this think that mobile homes should be allowed just anywhere??? And how exactly would you feel if you spent a million dollars on your home and someone put a mobile home in next to you. Well it is almost the same if they put lets say a $150,000 home in on the next lot.
    It is all a matter of perspective!!!

  17. #17
    Cyburbian
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    Quote Originally posted by Queen B
    Well let's look at this on the opposite end of the spectrum.

    We have zoning regulations that don't allow mobile homes in most areas of our zoning, it seems reasonable to me that with an active voice that one could argue the other end of that.

    Do those of you that have a problem with allowing this think that mobile homes should be allowed just anywhere??? And how exactly would you feel if you spent a million dollars on your home and someone put a mobile home in next to you. Well it is almost the same if they put lets say a $150,000 home in on the next lot.

    Housing type is one thing, size, value, and character are a completely different beast

    I would tell them there is no way you can do that. Developers can draft covenents and design guidelines to require a certain size home and worth a certain dollar amount but a city should stay 100 miles away from ever getting involved in that, because as mentioned before it could be considered exclusionary zoning.

  18. #18
    Cyburbian donk's avatar
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    Quote Originally posted by Planner22
    Housing type is one thing, size, value, and character are a completely different beast

    I would tell them there is no way you can do that. Developers can draft covenents and design guidelines to require a certain size home and worth a certain dollar amount but a city should stay 100 miles away from ever getting involved in that, because as mentioned before it could be considered exclusionary zoning.
    it would only be considered true exclusionary zoning, if they city does not provide an area for the proposed use and the proposed use is reasonable.

    As an example, we don't let adult entertainment uses in very many zones, is it exclusonary? Yes. Is there a zone where they can happen? Yes. Therefore few legal problems.


    I know of zoning by-laws that contain minumum building sizes in them, so while this is at the top end of tehe spectrum, it is not out of the question.
    Too lazy to beat myself up for being to lazy to beat myself up for being too lazy to... well you get the point....

  19. #19
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    I would suggest this ought not be an overlay adopted as part of your code, but done as a PUD. Our PUD ordinance allows a developer to essentially write their own zoning code, sub regs, and design standards. Their entire "development code" is approved as part of their permit, but is not adopted as part of our zoning ordinance; it is essentially a detailed protective covenent administered privately, for the most part. B&S was not initially happy due to concerns over enforcement (which I can understand), but so far, the project has been slow to start, so I do not know how difficult enforcement may be. The zoning map shows the area zoned as, for example, R-3/PUD. The PUD designation alerts anyone looking at the map that there is a unique permit associated with that area, and further investigation is necessary.

    I think this is quite different from an overlay because it is not adopted as part of our code, and, unlike an overlay, this generally gets applied to vacant property pre-development, not to an established area. However, we do have neighborhoods who want a similar ability to "freeze" their neighborhoods/density/character/etc with a similar permit process. But that's another thread.

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