Zoning can do a lot, but it can’t do it all

Zoning laws regulate how land is used and how buildings are constructed. Unfortunately, zoning codes also are often seen as a vehicle for all kinds of desired changes in a community, since they provide the most local regulations. However, shoehorning some types of changes in via zoning laws is a bad idea.

A zoning law can require a specific area or type of area to comply with a new regulation, while the rest of the community remains unchanged. Unfortunately, this morphs zoning into an even more complex set of rules for regulating businesses, people, and things that are really beyond the scope of the uses and buildings on the land. Here are some things that zoning is not well suited for:

Zoning cannot force a certain type of business to show up

Some communities try to use zoning to force a specific type of business to be built in the neighborhood by creating a district that only has a single permitted use. The theory is that if a certain parcel of land only allows a specific business, then that business will be built.

A recent food equity report for Prince George’s County recommended a grocery store zone for neighborhoods without supermarkets. Up until Montgomery County updated their zoning code, they had a hotel zone. While a single-use zoning district would reserve parcels of land for a specific use, it cannot force that business to be built. This falls back to the local market: if there are not enough customers to support a grocery store, it does not matter that there is a grocery store zone — that land will remain vacant.

This type of zoning may in fact make it more difficult to build the supermarket because it reduces the potential supply of land where a grocery could be built, thus increasing its land value and making it more expensive to build a supermarket. This requires more customers to make the store profitable, further limiting where a grocery could be placed because there is now a higher threshold for a business to break even.

Zoning cannot force an existing business to leave

The inverse to wanting specific businesses to open in a community is to want existing businesses to leave. However, if that business was lawfully operating, zoning cannot force it to leave. At most it can become a “nonconforming use,” a use that is prohibited under the current law but was lawfully existing when the zoning law changed.

Let's take, for example, a used car dealer who was lawfully operating when the residents of the surrounding neighborhood asked their elected official to prohibit car dealers. The law is changed, and now car dealers are not allowed in that neighborhood. However, this does not mean that the existing car dealer must leave — it simply means that no new car dealers can be built. The existing dealer becomes a nonconforming use.

Some regulations limit how nonconforming uses can rebuild or expand, but this can backfire. Not only is there a business which is deemed inappropriate for the area, but that business cannot update its architecture to be more visually appealing. The best approach (albeit not one that engenders satisfactory sense of action) for encouraging a business to leave is for that community to stop supporting it. This is the inverse of wanting a different business to show up – if a business cannot stay profitable in one location, it will find a new one where it can be profitable.

Zoning cannot stop businesses co-locating in the same area

Zoning cannot stop multiple versions of the same type of business from setting up shop near each other. A common criticism of development is that one neighborhood has too many gas stations/shoe stores/liquor stores*/gyms/etc. Zoning simply gives permission regarding what types of uses can be built in a certain area, it does not state how many of that use can be built.

For example, community members are often critical of too many dollar stores in a single neighborhood. However, if all the dollar stores in the area can remain in business, it suggests that there are not too many dollar stores. The supply of dollar stores is able to meet the demand.

*Liquor stores are a special case. Many jurisdictions, such as Prince George’s County, have a licensing board that licenses the ability to sell liquor and can limit the number of liquor stores that set up in a specific neighborhood. However, this is not a function of zoning.

Zoning cannot limit how many people are in one area

While zoning can effectively control how many dwelling units are in an area, this is different from controlling the population density. This distinction is important in practice. The local jurisdiction is generally responsible for approving building permits, so they have the ability to ensure that developments follow the building density requirements. If the zone requires one house per acre, but a subdivision proposal is two houses per acre, the local government can deny those building permits.

The same cannot be said for population density. For example, Fairfax County, Virginia has limited the population density of Reston to 13 persons per acre. A proposal to increase the density to 16 persons per acre was met with substantial opposition. The criticisms of the increase were mostly related to traffic and school crowding, but there is no practical method to enforce the density limit.

If a couple has twins or a recent college grad moves back in with their parents, it could push the density over the limit, and there would be no recourse for the local government. They could place a moratorium on new building permits, but this doesn’t address the population density. If a couple were to separate and one person move away, would Reston then allow a new person to move into the community?

Zoning cannot control for people because people are not tied to the land. Families grow and shrink, and people move in and out of communities. People and populations are too fluid for local governments to regulate through zoning.

Zoning cannot reduce the number of cars parked in a neighborhood

Although zoning can establish parking minimums and maximums for a community, zoning cannot control how those spaces are used nor how many vehicles are owned by each household.

Concerns about the lack of available parking in residential neighborhoods is a common issue introduced at community meetings. Generally, the issue is followed by an anecdote about that one house that has ten cars all parked on the street, leaving no space for anyone else. Zoning can require a higher minimum number of parking spaces for each house, however since there is limited amount of buildable land, at some point, the front and rear yards of housing simply become parking lots, and the character of the neighborhood is destroyed.

The other challenge is that even with required parking spaces, zoning cannot effectively ensure that parking spaces are used for motor vehicles. Many families choose to park on the street so that they can use their garage and driveway for additional storage. Additionally, zoning can’t limit how many motor vehicles are owned by a family. Whether each member of a family has their own automobile, or whether one person has more than one vehicle.

Zoning can effectively provide a supply of parking, but it cannot effectively regulate how that parking is used and managed. In these cases, managing the existing supply of parking spaces, through parking meters or permits is the best approach to address the number of cars in a neighborhood.

Zoning cannot require “good” architecture

Zoning cannot force “good” architecture to be built. Architecture is subjective, what one person finds appealing will be abhorrent to someone else (e.g. brutalism). Most simply put, since there is no way to truly define good architecture, there is no way to effectively regulate it.

Some area master plans in Prince George’s County have required certain materials to be used or architectural styles to be followed in an effort to mandate good architecture. However, this has not guaranteed good architecture — it has simply guaranteed that some buildings have met a required minimum for certain building materials. For instance, many single-family homes will have at least one portion of a side covered in brick. In addition, regulating architecture will inevitably result in a neighborhood where all the buildings look the same.

For any law to be effective, it must be easily enforceable on a practical level. Zoning is enforceable because local governments approve or deny building permits. If a proposed development is not in compliance with zoning, it does not receive approval. Moreover, buildings are attached to the land, so building inspectors and enforcement officials can visit a site and confirm compliance.

Although the specific architectural details of a building, the types of businesses that do or don't operate in a community, or the population density of an area are all related to development, they are also subject to market forces, population shifts, and construction trends. This makes them difficult to regulate through zoning.

Zoning works best when the rules address how the land is used and developed. The regulations can be specific to certain uses and their impacts, but they can’t go beyond how the certain use or development impacts the surrounding area.

Ultimately, zoning should be viewed as a broad, permissive form of regulation – what can be done with land versus what cannot be done. With this shift in focus, zoning can effectively preserve the health, safety, and welfare of the community and encourage new and innovative use of the land.