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Let’s Change the Process to Change Our Zoning: A Response to State and Federal Zoning Controls

June 1, 2022 by Judi Pickell
Policy/Legislative

The views expressed herein are those of the author and not necessarily those of the APAUT. As the author, I welcome discussing your views and maybe changing mine.  

by Paul Moberly, AICP PCED

In general, zoning isn’t newsworthy. Zoning isn’t salacious. Even for planner-nerds, zoning isn’t particularly sexy—except perhaps in a Duany Plater-Zyberk transect centerfold. However, while reading through some current news, I found some increased attention to zoning. The real issue addressed in the articles was housing affordability, with the crux of their arguments being broad reductions in local zoning restrictions.

As with the other wicked problems of our time, a cacophony of local, state, and even federal voices have called for action. Their attentiveness on this issue is not misplaced. In communities populous and dispersed, the West continues to grow and, in many areas, housing prices have long moved past crisis levels for locals. In response, several Western states, from more progressive-leaning California1 to more conservative Utah2 have recently implemented state-wide controls on local zoning. A recent article from the Pew Charitable Trusts outlines that similar actions are occurring nation-wide3. In addition, a recent fact sheet from the Biden administration took direct aim at minimum lot sizes, mandatory parking requirements, and restrictions on multi-family housing, mirroring some federal lawmakers’ efforts4.

Setting aside arguments about federalism, rural-blind policies, local control, or the role of government, these higher-level interventions may stimulate change, but ultimately may prove ineffective without thoughtful, attentive local planning processes. However, widely implemented planning like that would likely render state and federal interventions unnecessary.

A small soapbox (editorial) moment to describe my point. There exists a dominant strain in planning thought that our actions need to always support these greater-good-type interventions—in this case, encouraging affordable housing. However, I believe this same impulse leads us to discount any validity of NIMBY-esque concerns, falling into the easy fallacy of confirm5. When we disregard opposition as “clamor” or avoid input altogether, we reinforce a cultural attitude of winners and losers in the public sphere. This will inevitably come back on us when the clamor for our desired project falls on equally selective, deaf ears.

In the public sphere, the process is as—and perhaps more—important as the outcome. Where it is appropriate for us to desire and advocate, it should be equally appropriate for us to listen and validate. Elsewise we mirror those in government’s higher spheres who may frustrate us with local zoning mandates because we had little say in their decision. As public actions live in the process, I like propositions like that put forth by Paul Allred, AICP where state-level interventions focus more on improving those processes6 and less on mandated and blanketed actions.

I learned about breakdowns with our processes in my first public meeting as an intern. As consultants, we were coming in to present our ideas for revitalization of a small community. I had carefully prepared our public engagement for that meeting, consisting of multiple stations where small groups could understand and comment on our ideas. As I explained how things would work that evening, a middle-aged man in attendance stood up and in frustration asked what we were doing, why we were there, and why they had been left out. The rest of the room followed suit, and my boss spent the rest of the evening on the defensive answering accusations and questions. Evidently, our local contacts hadn’t done much education or outreach and our firm—traveling in from hours away—was only under contract for two public meetings. We could blame an angry and uninformed public, but in reality, our process had failed the public and the project.

Perhaps it is our process which can open better paths. Local concerns from neighboring property owners in many areas continues to form into resistance against various projects like higher density development7 or large-scale solar8. Perhaps they have a point and perhaps they don’t understand the full situation. Perhaps those behind these state and federal mandates have a point—maybe we are too restrictive in our zoning. How can we address these seemingly combating issues of local control, community needs, and NIMBYs?

I believe that mandates won’t successfully alter our townscapes without thoughtful, attentive local planning implemented through a thoughtful process. This type of thoughtful, attentive planning was epitomized by Jayna Watson and her team in Spearfish, South Dakota. The former planner there, Jayna outlined her approach in our podcast last year.

Spearfish’s downtown needed redevelopment. The city of nearly 12,000 residents had several run down homes on small lots in the downtown, but the owners couldn’t do much beyond what was currently there due to the setbacks and parking minimums in their zoning. “On a very long narrow lot, [the setbacks were] taking up to probably fifty percent of the developable space on the lot away from reconstruction and revitalization of these homes. We already have a twenty-foot wide boulevard then you add twenty-five feet on top of that for a front setback, you wind up with almost next to nothing to build on,” Watson explained. “There’s a lot of creative designs out there for very narrow lots but it really wasn’t meeting with what our residents and our builders wanted to build for people.”

After listening to the issues from landowners and builders, she and her team started by examining what could actually be built on the parcels available with the current zoning applied. They found what was suspected: the current zoning pushed buildings back so far that these parcels were really prohibitively restrictive to normal development. “We looked at that and said, we got to do something different here,” said Watson.

After understanding the current situation under the current regulatory structure, they proposed adjustments, moving the setback from twenty feet to twelve—a move uncharacteristic of that neighborhood. Not unexpectedly, the public pushed back. This was change, and many were uncomfortable that it would alter the character of the neighborhood. They had a point. It would be different from how that neighborhood had developed. The landowners were frustrated with the current situation, and the public was uncomfortable with the proposed solution. Unphased, Watson wanted to validate the concerns of those hesitant about the changes, alleviate their fears, and still respond to the property owners. Her solution: “We needed to collect some data,” explained Watson.

Her and her team randomly selected 5-6 blocks and assessed each parcel for existing conditions today relative to their setbacks. “We came up with at least two-hundred parcels where the existing buildings were sitting on the property line or seven feet from the property line and so on,” Watson explained. “On the one hand we had this great idea that staff had to fix the problem, and then we had another contingent who said it’s going to be really different from what we have. We said, no no no, look at the data, the data is showing that you already have it.”

The data was enough to assuage the public’s concerns and the changes to the zoning passed. As a result, new investment and renovations happened within the community’s core; however, the careful work with the public was as important as the outcome—that they were able to have their concerns heard and satisfactorily addressed. As Watson explained, “We let go of our hard and fast front yard rules to make something work for our community.”

This example is presented simplistically, and I’d like to think planning happens in a thoughtful, attentive way more often than not. While the details don’t necessarily apply to all situations, I believe her general process can help us think about our own processes. To simplify, the Spearfish planning department:

  1. Listened: they heard the concerns of property owners and developers in the area.

  2. Examined current conditions: they listened to the complaints, then also took an unbiased analysis of what was actually possible given their own code and found it validated property owner and developer concerns.

  3. Openly identified problems: instead of entrenching or being defensive, they acknowledged the role their own code presented. It would be easy to entrench in the current zoning, ignore the complaints, or be apathetic to the real issue—after all, who has time to dive into the quagmire of changing zoning codes? They did it anyway.

  4. Brainstormed solutions: likely listening to those with concerns, they identified a relatively simple solution which would solve the root problem.

  5. Acknowledged concerns: while there was pushback on their solution from the public, the team didn’t abandon their original intent to help the property owners, nor did they negate the concerns brought by the public.

  6. Used data to address concerns: they methodically—not subjectively—collected data which addressed the concerns of the public, showing that a variety of setbacks were already accepted in the city without dispute. This wasn’t used to prove a point, but to subside fears.

This process as outlined is a good example of thoughtful community planning, but this is not the only way to achieve it. Can we use a process like this to inspire our work in rezoning for more affordable housing types?

What does our current zoning actually allow us to build on the actual parcels which exist in our neighborhoods? Do our current multi-family zones actually allow for the development of multi-family properties? Can we unbiasedly examine our zoning and find room for improvement?  Many of our zoning codes in the West are inherited, poorly adopted from other areas, or just ineffective to the outcomes the community desires. Can we find existing conditions to inspire new possibilities throughout our communities?

In addition, let us look at a better approach to our community engagement when rezoning for more affordable housing types. In a similar manner to examining the possibilities of our zoning, can we examine the possibilities of our engagement processes? What form and quality of feedback do our processes actually allow us to gather? From whom do these processes allow us to collect feedback? What methods for dialogue exist? Moreover, do we have the fortitude to approach and engage all parties in a thoughtful, attentive process to work through challenges and concerns?

I’d like to think that our Western planning regularly follows careful processes like what is outlined here. Unfortunately, from some of the news I read, there appears to be too many winners and losers in our public discourse which are unwittingly dictated by our processes. Working to be more thoughtful in this way, we change our process to change our zoning. Whether or not state or federal mandates come, thoughtful, attentive planning approaches can help solve issues and break down barriers. It might even make zoning a topic of conversation in your town.

REFERENCES
1. Hirneisen, Madison, 12/30/2021.California chips away at ‘NIMBY’ zoning restrictions in 2022. The Center Square, online at https://www.thecentersquare.com/california/california-chips-away-at-nimby-zoning-restrictions-in-2022/article_b9324ab0-6999-11ec-9925-b74f3ed7cf75.html

2. Dussault, Zachary. 3/12/2021. What did this year’s state legislative session mean for housing and transportation? Building Salt Lake, online at https://www.buildingsaltlake.com/what-did-this-years-state-legislative-session-mean-for-housing-and-transportation/

3. Hernández, Kristian, 3/15/2022. As Rents Soar, States Take Aim at Local Zoning Rules: Local officials, however, say they should decide what gets built where. Pew Charitable Trusts, online at https://www.pewtrusts.org/en/research-and-analysis/blogs/stateline/2022/03/15/as-rents-soar-states-take-aim-at-local-zoning-laws

See similar sentiments in Montana: Pepalis, Bob. 3/22/2022. Montana lawmakers should ‘eliminate and reduce’ strict zoning regulations, think tank says. The Center Square, online at https://www.thecentersquare.com/montana/montana-lawmakers-should-eliminate-and-reduce-strict-zoning-regulations-think-tank-says/article_36b1da2c-aa05-11ec-b555-0b78d6875a9d.html

4. Murakami, Kery, 4/12/2022. Biden is Doubling Down on a Push to Roll Back Single-Family Zoning Laws. Route Fifty, online at https://www.route-fifty.com/infrastructure/2022/04/bidens-10-billion-proposal-ramps-equity-push-change-neighborhoods-cities/365581/

5. Sisson, Patrick. 2/12/2020. Public Meetings are broken. Here’s how to fix them. Curbed, online at https://archive.curbed.com/2020/2/12/21132190/neighborhood-development-democracy-city-council-local-meeting

6. Allred, Paul. 4/14/2022. Clamor is King. Utah APA, online at https://apautah.org/clamor-is-king/

7. McClure, Kylee. 5/16/2022. Public hearing raises zoning concerns in Richfield. The Richfield Reaper, online at https://richfieldreaper.com/news/44530/public-hearing-raises-zoning-concerns-in-richfield/

8. Kennedy, Ryan. 3/4/2022. “A solar project would multiply a North Dakota town’s budget, but a 1995 ordinance prevents it”. PV Magazine, online at https://pv-magazine-usa.com/2022/03/28/a-solar-project-would-multiply-a-north-dakota-towns-budget-but-a-1995-ordinance-prevents-it/

About the Author

Paul Moberly, AICP PCED, is the Editor of the Western Planner and the Community Development and Revitalization Manager with Utah’s Community Development Office, part of Utah Housing and Community Development. A long-time student of rural issues, he’s consulted with rural towns throughout upstate New York, the Adirondacks, and Utah and has studied rural decline during the past decade throughout the Northeast and Northwest. He holds a Masters in Regional Planning from Cornell University, and a community development-focused Masters in Education from Boise State University.

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