Zoning: Municipalities and Townships Presented by John Anthony and - PowerPoint PPT Presentation

Zoning: Municipalities and Townships Presented by John Anthony and Jessica Logothetides Assistant Civil Prosecutors Stark County Prosecuting Office

Introduction � Private ownership and use property in a free democratic society � Right is not absolute � Limitations in the form of valid restrictions � Development of cities and suburbs and population densities required planning to provide order and achieve desirable ends related to land use. Zoning is part of the planning process � Condemnation of property. Taking property for a public use requires payment of just compensation � Economic development mechanism such as tax abatement

History of Zoning � First arose in cities in the late 19 th and early 20 th centuries as part of the planning process usually by planning commissions to provide for the orderly physical development of the area � New York was the first in 1915 and by 1923 Ohio had zoning in place in Cincinnati � Litigation was heavy- seen by many as unreasonable governmental intrusions � Today most municipal corporations will have zoning regulations in place in addition to other controls and such ordinances dealing with nuisance abatement, property maintenance codes, building codes, and licensing measures and many unincorporated areas of townships will also have such measures as part of its local regulations

Purpose of Zoning � Zoning is the legislative method of regulating land use by the division of a political subdivision (city, village, township, or county) into districts and the enactment of local regulations to control the buildings and uses within the districts. � Purpose: � Regulate land use to minimize property disputes � Regulate land use so that planning and land development can proceed in an appropriate manner. � Prevent land use conflict on a communitywide basis. 1

Requirements of Zoning Regulations � Regulation must promote a valid public purpose � The means a community uses to achieve the purpose has to be reasonably related to the achievement of that purpose � Regulation should not result in a taking of property � Regulations may be subject to other provision of federal or state constitutions � In order to be constitutional zoning must bear a reasonable relationship to the public health, safety, morals, or general welfare

Sources of Zoning Power � Zoning is part of the police power of the state which represents the inherent power of sovereign states. � The state has delegated most of its planning and police power authority to regulate land use to the local level. � 4 track-track system of planning and zoning power 1. Counties � R.C. Chapter 303 2. Townships � R.C. Chapter 519 3. Charter and charter municipalities � Charter � R.C. Chapter 713 4. Non-charter or statutory plan municipalities � R.C. Chapter 713 � Municipalities are divided into two classes: 1. Villages, with a population under 5,000 2. Cities, with a population 5,000 or greater � However, in recent years, the state has enacted statutes which address land use issues of statewide concern. The statutes include full or partial preemption of local regulatory systems.

Municipalities � The origin of the police power in Municipalities is derived through the Ohio Constitution Article 18 Section 3 which states: “Municipalities shall have authority to exercise all powers of local self-government and to adopt and enforce within their limits such local police, sanitary and other similar regulations, as are not in conflict with general laws.” � Municipalities possess the power to control the conduct of citizens in order to preserve the welfare, health and safety of all of its citizens. This is an essential part of the power of local self-government � Limits on this power are made by the General Assembly and are set forth in Chapter 713 � This grant of power of local self-government to Ohio Municipal Corporations is known as “home rule”

Townships � The origin of the police power in Townships is derived through statutory delegation by the General Assembly and are set forth in R.C. Chapter 519 � If a township chooses to enact zoning regulations, it must strictly follow the procedures and standards of state statutes when administering zoning regulations � The board of township trustees must also establish a zoning commission and board of zoning appeals. � One difference between villages and cities and townships is that villages and cities may impose penal sanctions for a violation of its own ordinance. In townships with some exceptions the police power is enforced through civil fines and not penal ordinances

Exception to zoning and state preemption of local zoning codes 1. State preemption 2. Agricultural exemption in townships 3. Non-Conforming uses 4. Variances 5. Conditional use permits

Preemption � The power of local governments to enact zoning regulations may conflict with the laws of the state. � Political subdivisions (counties, townships, and municipalities) cannot enact zoning regulations that conflict with state law. � Examples: public utilities & waste disposal facilities

Agricultural Exemption � R.C. 519.01 defines “agriculture.” � The Ohio Revised Code “confers no power” on townships: � To prohibit the use of any land for agricultural purposes. � To prohibit the construction or use of buildings or structures incident to the use for agricultural purposes of the land on which such buildings or structures are located. � Including buildings/structures that are used primarily for vinting and selling wine and that are located on land any part of which is used for viticulture. R.C. 519.21(A) � Townships may regulate agriculture in some circumstances: � In a platted subdivision approved under law, � In an area of 15 or more lots approved under law that are contiguous to one another � Then the township may regulate: � Agriculture on lots of one acre or less; � Buildings or structures incident to the use of land for agricultural purposes on lots greater than one acre but not greater than five acres by: set back building lines; height; and size � Dairying and animal and poultry husbandry on lots between 1 and 5 acres when at least 35% of the lots are developed R.C. 519.21(B)

Non-conforming Uses � Municipal Corporations R.C. 713.15, Townships R.C. 519.19, Counties R.C. 303.19 � Nonconforming uses arise when a legal existing uses, or uses formerly permitted by a prior zoning ordinance, are no longer allowed under a new ordinance � 3 regulatory considerations 1. Prohibit retroactive application of zoning ordinance 2. Address abandonment or interruption of use � In townships any nonconforming use that is “voluntarily discontinued for 2 years or more” must thereafter be used in conformity with the applicable zoning ordinance � In Municipal corporations can shorten term for abandonment to not less than 6 months but cannot extend the period of allowable voluntary abandonment to more than 2 years. 3. Provide that legislative bodies must allow for reasonable completion , restoration, reconstruction, extension, or substitution � Nonconforming uses can be subject to reasonable police power. Police power can only be applied when the use immediately or directly imperil public health or safety.

Variance � Minor departure or exception from the strict rule or literal enforcement or interpretation of zoning provision � Variance always relate to individual hardship peculiar to the property for which a variance is sought � Intended to alleviate a situation in which for no public reason, zoning for an area more stringently burdens one parcel of land than others � 2 Types 1. Use 2. Area � Body that administers variance process is the BZA (R.C. 519.13 & R.C. 713.11)

Use Variance � Landowner asking that he or she be allowed to use property in a manner not permitted in the zoning ordinance � Example- if in a single-family district that doesn’t allow a dentist office, a request for a variance to allow a doctor’s office is a request for a use variance � Standard is unnecessary hardship � Must be a showing that all permitted uses are not economically feasible or cannot be efficiently continued. � Landowner unable to use the property for the purposes for which it is zoned, landowner deprived of the beneficial use of the land. In effect the restriction amounts to a taking. � The mere fact that one's property can be put to a more profitable use does not, in itself, establish an unnecessary hardship where less profitable alternatives are available within the zoning classification .

Area Variance � Area variance involves an exception from such requirements as yard, lot, height, setback, etc. � Standard is practical difficulties (lesser standard than unnecessary hardship) � Duncan factors to be considered a include: (1) would the property yield a reasonable return without the variance; (2) is the variance substantial; (3) will the essential character of the neighborhood be substantially altered or adjoining properties suffer a substantial detriment; (4) will the variance adversely affect governmental services; (5) did the owner purchase the property with knowledge of the zoning restriction; (6) can problem be solved by some manner other than granting of a variance; (7) whether the spirit and intent behind the zoning requirement would be observed and substantial justice done by granting the variance