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Thread: Municipal buildings exempt from zoning regulations?

  1. #1
    Cyburbian SlaveToTheGrind's avatar
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    Municipal buildings exempt from zoning regulations?

    City wants to erect a building on the public works site. Cost is always an issue as taxpayer dollars are at work. Do you know of any cities that exempt themselves from architectural standards, for instance? Cost of a building meeting code will be approximately twice as much as the one preferred by the pw director. Currently there are no nearby residential buildings but that will change in the future. The obvious questions that comes up is why should a city building not have to follow the code when John H. Developer has to?

  2. #2
    Cyburbian
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    Quote Originally posted by SlaveToTheGrind View post
    City wants to erect a building on the public works site. Cost is always an issue as taxpayer dollars are at work. Do you know of any cities that exempt themselves from architectural standards, for instance? Cost of a building meeting code will be approximately twice as much as the one preferred by the pw director. Currently there are no nearby residential buildings but that will change in the future. The obvious questions that comes up is why should a city building not have to follow the code when John H. Developer has to?
    I agree with your last sentence. I've always tried to go above and beyond to make sure the locality where I work complies with the ordinance. Would a variance be an option? Is there an option to waive the architectural requirements that's already written by the code?

  3. #3
    Super Moderator luckless pedestrian's avatar
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    I feel differently than others - I think municipalities should be exempt from zoning (not building codes, folks, relax, just zoning) and here is why, so hear me out on this:

    Municipal Projects are in the community's capital plan, a part of the budget, that, in many parts of New England, gets voted on by everybody - so the ultimate permitting authority, in this case, Town Meeting, has said, yes that school should go there, or that park, or that public works facility - this process is the ultimate in public involvement so it should be "a done deal" because the deal got done when the budget passed by everybody

    Now, that does not mean a neighborhood meeting should not occur, or some public process to work out issues, design considerations, construction timing and the like - but to give a permitting authority, as in the Planning Board, or worse the Board of Appeals (the town is the applicant, really? how does that even work!?! I'm appealing myself?! WTF is that?!?) what could be (and I have seen this) another crack at killing a project they (as Planning Board members and regulatory authorities) may have voted no to funding (and lost to the majority) is just bat $%^& crazy!

    another thought is that zoning is the land use policy to ensure that land uses/site development is in keeping with the public interest, as outlined in the comprehensive plan (hopefully) - so a municipal project, I would think, is IN the best interests of the public or it wouldn't have been funded! Hopefully the municipal projects have been outlined in the comprehensive plan, which again, in New England, gets voted in my EVERYBODY! So EVERYBODY already said yes to this project!
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    Cyburbian dvdneal's avatar
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    I like LPs arguments, but working here and my last job design was never a part of capital projects. The budget was approved by the governing body so no one really had a say beyond their council members and even then it never came up that the new PW building would just be a steel sided brand of ugly. Granted ours was in an industrial area where that was allowed. I guess it goes to the level of public involvement for the community.

    My problem was always with things like signs. I've seen it in two places now. City wants a digital sign or an oversize sign. It's not allowed. Justify it by saying it's in the community interest or some garbage. Next thing you know the poor planner has a hundred calls either complaining about the giant sign or asking for a digital sign in a city that doesn't allow them.
    I don't pretend to understand Brannigan's Law. I merely enforce it.

  5. #5
    Forums Administrator & Gallery Moderator NHPlanner's avatar
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    Here's how it's done in NH...

    CHAPTER 674
    LOCAL LAND USE PLANNING AND REGULATORY POWERS
    Governmental Use of Property
    Section 674:54
    674:54 Governmental Land Uses. –
    I. In this section, "governmental use'' means a use, construction, or development of land owned or occupied, or proposed to be owned or occupied, by the state, university system, the community college system of New Hampshire, or by a county, town, city, school district, or village district, or any of their agents, for any public purpose which is statutorily or traditionally governmental in nature.
    II. The state, university system, community college system of New Hampshire, county, town, city, school district, or village district shall give written notification to the governing body and planning board, if such exists, of a municipality of any proposed governmental use of property within its jurisdiction, which constitutes a substantial change in use or a substantial new use. Written notification shall contain plans, specifications, explanations of proposed changes available at the time, a statement of the governmental nature of the use as set forth in paragraph I, and a proposed construction schedule. Such notification shall be provided at least 60 days prior to the beginning of construction. Either the governing body or planning board of the municipality may conduct a public hearing relative to the proposed governmental use. Any such hearing shall be held within 30 days after receipt of notice by the governing body or planning board. A representative of the governmental entity which provided notice shall be available to present the plans, specifications, and construction schedule, and to provide explanations. The governing body or planning board may issue nonbinding written comments relative to conformity or nonconformity of the proposal with normally applicable land use regulations to the sponsor of the governmental use within 30 days after the hearing.
    II-a. Any use, construction, or development of land occurring on governmentally owned or occupied land, but which is not a governmental use as defined in paragraph I, shall be fully subject to local land use regulations.
    II-b. The construction and operation of any solid waste disposal facility on land owned or occupied by any city or town within another city or town shall be subject to local land use regulations to the same extent as if the land were owned and occupied by a private entity. Nothing in this paragraph shall affect the construction and operation of a solid waste facility on land owned by a solid waste management district formed under RSA 53-A or RSA 53-B or any combination of municipalities authorized by an act of the general court, if the land is located within a city or town that is part of the district.
    III. This section shall not apply to:
    (a) The layout or construction of public highways of any class, or to the distribution lines or transmission apparatus of governmental utilities, provided that the erection of a highway or utility easement across a parcel of land, shall not, in and of itself, be deemed to subdivide the remaining land into 2 or more lots or sites for conveyance for development purposes in the absence of subdivision approval under this title. For purposes of this subparagraph, "transmission apparatus'' shall not include wireless communication facilities.
    (b) The erection, installation, or maintenance of poles, structures, conduits and cables, or wires in, under, or across any public highways under RSA 231, or licenses or leases for telecommunication facilities in, under, or across railroad rights of way. For purposes of this subparagraph, "structures'' shall not include wireless communications facilities.
    IV. In the event of exigent circumstances where the delay entailed by compliance with this section would endanger public health or safety, the governor may declare a governmental use exempt from the requirements of this section.

    Source. 1996, 262:1. 1998, 281:2. 2007, 29:1, eff. May 14, 2007; 361:32, eff. July 17, 2007.
    "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

  6. #6
    Cyburbian MD Planner's avatar
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    Obviously things are done differently from state to to state but I disagree with LP's argument. So what if it's in the CIP? That's just the funding portion of the project. The actual compliance and design with local codes in mind is a completely separate matter IMHO. There is established case law in Maryland that we don't have to follow our own zoning but I've always made sure we follow our own rules. In fact, I just had a meeting a few weeks ago to make sure our DPW folks are adhering to our historic district rules when doing workin in the district. You have to lead by example. Especially in this day and age of social media. Try allowing something for the local government and not for John Q. Public and see how fast you get crucified online.
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  7. #7
    Forums Administrator & Gallery Moderator NHPlanner's avatar
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    Quote Originally posted by MD Planner View post
    Obviously things are done differently from state to to state but I disagree with LP's argument. So what if it's in the CIP? That's just the funding portion of the project. The actual compliance and design with local codes in mind is a completely separate matter IMHO...
    LP's point is that these kind of things are literally voted on by the residents in Traditional Town Meeting settings in most of New England...not through a representative council/board. It's a direct vote by the residents...which is what makes it different (and from my experience those direct votes include A&E and design).
    "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

  8. #8
    Super Moderator luckless pedestrian's avatar
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    Quote Originally posted by MD Planner View post
    Obviously things are done differently from state to to state but I disagree with LP's argument. So what if it's in the CIP? That's just the funding portion of the project. The actual compliance and design with local codes in mind is a completely separate matter IMHO. There is established case law in Maryland that we don't have to follow our own zoning but I've always made sure we follow our own rules. In fact, I just had a meeting a few weeks ago to make sure our DPW folks are adhering to our historic district rules when doing workin in the district. You have to lead by example. Especially in this day and age of social media. Try allowing something for the local government and not for John Q. Public and see how fast you get crucified online.
    Quote Originally posted by NHPlanner View post
    LP's point is that these kind of things are literally voted on by the residents in Traditional Town Meeting settings in most of New England...not through a representative council/board. It's a direct vote by the residents...which is what makes it different (and from my experience those direct votes include A&E and design).
    Yes - usually, if it's the Public Works building for example, the sketch of the building, its location etc are shown at town meeting so everyone knows what it's going to be before they vote on it - I still think neighborhood meetings should occur to iron out issues but too often I have seen the site plan review get politicized by Board members who were against the project at town meeting and now get another crack at it - the project still meets buidling codes but everyone votes on it at town meeting - this argument doesn't work as well with charters that have representative councils and not the traditional town meeting where every registered voter can vote on it
    Kim Wexler: Either you fit the jacket... or the jacket fits you.

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    Cyburbian dvdneal's avatar
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    If I were in LP shoes (I hope she doesn't where heels often) I would be all for doing it her way with a town hall vote. Doesn't matter if it's part of the CIP or separate, the people had their voice. My place and my last job didn't have that. The only public hearing option was to go through the planning commission, but I also see problems like this in the town I live in. The planning board and the city board have different agendas and sometimes it gets a little weird and the people have no say in the deal. Our new giant sign and our new tin field house are great examples of things the council pushed through despite the planning board and the people absolutely hating the design and in some cases the project itself - mostly the budget aspect which just goes to prove LPs way might be better.
    I don't pretend to understand Brannigan's Law. I merely enforce it.

  10. #10
    What does that say about the zoning code when developers are expected to follow it, but a municipality elects to not due to cost concerns or the administrative burden of being on the other side of the counter. I had an experience recently in a fairly large city known for its complex regulatory environment that had to amend its zoning text because things were at a standstill and city agencies were pointing fingers at each other on why things couldn't get done. To LP's point, this was in a city that was not exempted from its own zoning, I don't know if it was state legal or just the political environment.

    Quote Originally posted by dvdneal View post
    If I were in LP shoes (I hope she doesn't where heels often) I would be all for doing it her way with a town hall vote. Doesn't matter if it's part of the CIP or separate, the people had their voice. My place and my last job didn't have that. The only public hearing option was to go through the planning commission, but I also see problems like this in the town I live in. The planning board and the city board have different agendas and sometimes it gets a little weird and the people have no say in the deal. Our new giant sign and our new tin field house are great examples of things the council pushed through despite the planning board and the people absolutely hating the design and in some cases the project itself - mostly the budget aspect which just goes to prove LPs way might be better.
    Off-topic:
    What about RLUIPA and Fair Housing concerns? There's been no shortage of recent articles where a town didn't want a mosque, religious graveyard, or even low-income housing. The people have their voice, even though such structures are fully allowable by zoning. The town then gets slapped with a federal discrimination lawsuit. Planning board' and even city council's do help combat the mob mentality sometimes. It may not be a popular decision made, but it's the right one.
    The content contrarian

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    Cyburbian dvdneal's avatar
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    I can't say the public always make the right choice. That's what we're hear for. Try to give them some advice. Personally I'd say make the city use the code. If it's good for everyone else why isn't it good for the city? At the same time I can understand the compelling public interest to save some taxpayer money by using cheaper materials. That's why I like the public hearing aspect. Let people have their say, vote on it, move on. Then when someone asks why the city project didn't have to meet code you can answer the public all got together and voted on it. It works better in LPs town hall system than the rest of us that use boards and councils to approve everything. We don't have that public vote tool.
    I don't pretend to understand Brannigan's Law. I merely enforce it.

  12. #12
    Cyburbian AG74683's avatar
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    Everyone should follow the zoning code, regardless of who the applicant is. It's simply not fair to exempt some interests while imposing it on others. It should be an even playing field for all.

  13. #13
    Super Moderator luckless pedestrian's avatar
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    Quote Originally posted by OfficialPlanner View post
    What does that say about the zoning code when developers are expected to follow it, but a municipality elects to not due to cost concerns or the administrative burden of being on the other side of the counter. I had an experience recently in a fairly large city known for its complex regulatory environment that had to amend its zoning text because things were at a standstill and city agencies were pointing fingers at each other on why things couldn't get done. To LP's point, this was in a city that was not exempted from its own zoning, I don't know if it was state legal or just the political environment.
    It's not that the city isn't following it, in my example above, it's that the city voted on it already - that the building x, is going to go here, and this is what it's going to look like, vote yes or no

    Quote Originally posted by OfficialPlanner View post
    Off-topic:
    What about RLUIPA and Fair Housing concerns? There's been no shortage of recent articles where a town didn't want a mosque, religious graveyard, or even low-income housing. The people have their voice, even though such structures are fully allowable by zoning. The town then gets slapped with a federal discrimination lawsuit. Planning board' and even city council's do help combat the mob mentality sometimes. It may not be a popular decision made, but it's the right one.
    I don't understand this example?

    Quote Originally posted by dvdneal View post
    I can't say the public always make the right choice. That's what we're hear for. Try to give them some advice. Personally I'd say make the city use the code. If it's good for everyone else why isn't it good for the city? At the same time I can understand the compelling public interest to save some taxpayer money by using cheaper materials. That's why I like the public hearing aspect. Let people have their say, vote on it, move on. Then when someone asks why the city project didn't have to meet code you can answer the public all got together and voted on it. It works better in LPs town hall system than the rest of us that use boards and councils to approve everything. We don't have that public vote tool.
    The city would have to follow building codes and if there is design standards, they would have to as well - it just does not get reviewed formally by a regulatory authority after the city already voted to build it

    Quote Originally posted by AG74683 View post
    Everyone should follow the zoning code, regardless of who the applicant is. It's simply not fair to exempt some interests while imposing it on others. It should be an even playing field for all.
    It's not that it's not following a zoning code, it's saying this public facility, owned by the city, is a building for all, is in the general public interest and not for an individual property owner and that the resdients voted to build it becasue they wanted it there
    Kim Wexler: Either you fit the jacket... or the jacket fits you.

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    Cyburbian AG74683's avatar
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    Quote Originally posted by luckless pedestrian View post
    It's not that it's not following a zoning code, it's saying this public facility, owned by the city, is a building for all, is in the general public interest and not for an individual property owner and that the resdients voted to build it becasue they wanted it there
    But isn't the reason the code exists in the first place is that it is "in the general public interest". At some point the community decided these standards were worth the extra financial investment to protect the city, and that shouldn't exempt a city owned building from following the same standards.

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    Super Moderator luckless pedestrian's avatar
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    Quote Originally posted by AG74683 View post
    But isn't the reason the code exists in the first place is that it is "in the general public interest". At some point the community decided these standards were worth the extra financial investment to protect the city, and that shouldn't exempt a city owned building from following the same standards.
    I am not saying the city puts up a building that doesn't meet building codes but if the city owns a piece of property and decides to put a building there and everybody votes, yes, that's a great spot for it, here's the money and we saw what it's going to look like, isn't that the ultimate in ensuring the public interest is met - as opposed to zoning a private piece of property for uses that the city thinks are in the public interest and the landowner meets that requirement
    Kim Wexler: Either you fit the jacket... or the jacket fits you.

  16. #16
    Cyburbian AG74683's avatar
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    Quote Originally posted by luckless pedestrian View post
    I am not saying the city puts up a building that doesn't meet building codes but if the city owns a piece of property and decides to put a building there and everybody votes, yes, that's a great spot for it, here's the money and we saw what it's going to look like, isn't that the ultimate in ensuring the public interest is met - as opposed to zoning a private piece of property for uses that the city thinks are in the public interest and the landowner meets that requirement
    In your specific jurisdiction, I think this makes sense since the general public is voting on it regardless. For most other places where the public doesn't get the same input, I really think it falls under abuse of power to circumvent your own zoning or development codes.

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    Cyburbian Big Owl's avatar
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    Municipal buildings should be examples of what you want others to build in your jurisdiction. More time and consideration should be given to how it fits in to the community and impacts adjoining property. Some municipal buildings or projects have no private sector doppelganger and they are unique, which maybe need to be treated differently. Any exceptions to current codes should be justified and the process should be transparent. You'll still get people that try to compare their project to the city project that they feel was given special treatment.

  18. #18
    Cyburbian Tobinn's avatar
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    Follow yer own lead

    Quote Originally posted by NHPlanner View post
    LP's point is that these kind of things are literally voted on by the residents in Traditional Town Meeting settings in most of New England...not through a representative council/board. It's a direct vote by the residents...which is what makes it different (and from my experience those direct votes include A&E and design).
    Great, then the residents should vote to change their zoning regulations to exempt government projects from having to meet their own requirements. Until then the rules should apply to everyone.
    At times like this, you have to ask yourself, "WWJDD?"
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  19. #19
    Forums Administrator & Gallery Moderator NHPlanner's avatar
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    Quote Originally posted by Tobinn View post
    Great, then the residents should vote to change their zoning regulations to exempt government projects from having to meet their own requirements. Until then the rules should apply to everyone.
    Can't do that. NH is a Dillon's Rule state, not a home rule state. Municipalities are only allowed to do what is expressly proscribed by state law, and a local regulation cannot override a state law.
    "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

  20. #20
    Then the rules should apply to everyone?
    The content contrarian

  21. #21
    Forums Administrator & Gallery Moderator NHPlanner's avatar
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    Quote Originally posted by OfficialPlanner View post
    Then the rules should apply to everyone?
    See above: http://www.cyburbia.org/forums/showt...l=1#post805462

    That's the State Law in NH. We are obligated to follow that law. Under that law, it is up to the governmental entity to decide to follow the normally applicable regulations or not. Many do, some do not. In my experience, municipalities come closest to meeting all the normally required regs, school districts less so, and state government the least.
    "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

  22. #22
    Quote Originally posted by NHPlanner View post
    See above: http://www.cyburbia.org/forums/showt...l=1#post805462

    That's the State Law in NH. We are obligated to follow that law. Under that law, it is up to the governmental entity to decide to follow the normally applicable regulations or not. Many do, some do not. In my experience, municipalities come closest to meeting all the normally required regs, school districts less so, and state government the least.
    Interesting - is it the case the the State doesn't enforce the provision applicable to municipalities (and are even less enthusiastic about enforcing it against themselves)?
    The content contrarian

  23. #23
    moderator in moderation Suburb Repairman's avatar
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    Two thoughts...

    New England is really freaking weird with their town hall votes.

    Cities, at least in Texas, are not required to comply with all codes. It is, however, in your best interest to do so. We even send them through our permitting process like anything else, the only difference being that we don't charge ourselves fees. We can be overruled by the city manager, but our political environment here would sniff that out in a heartbeat. Our City Council is big on us complying with our own rules. In fact, they feel we should exceed them when possible to send a message to private sector.

    "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."

    - Herman Göring at the Nuremburg trials (thoughts on democracy)

  24. #24
    Super Moderator luckless pedestrian's avatar
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    Quote Originally posted by Suburb Repairman View post
    Two thoughts...

    New England is really freaking weird with their town hall votes.

    ...
    ah the but the chaos - you are missing out on that! democracy in its purest form is semi-controlled anarchy

    the good thing is, though, that if something pass at town meeting, you can always say to anyone complaining, hey, you all voted this in!

    so I stand by my thought that, in New England, in a town meeting charter, that it's best to:

    allow all government uses in all of your districts
    exempt them from site plan review (this is the key)
    follow building codes and things like height and setback

    why? It's because the project, its funding, what it looks like, and where it's going, has already been argued, vetted and ultimately voted upon at town meeting (a vote of all registered voters who show up on town meeting night)
    Kim Wexler: Either you fit the jacket... or the jacket fits you.

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