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

• rder 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 19th and early 20th 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

• ther 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
• f 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

Conditional Uses

Legitimate use under the ordinance but is granted subject to meeting

specified condition in the ordinance

Legislative body provides for the inclusion of conditional uses in a district

upon administrative approval granted in accordance with prescribed standards and conditions

Code delineate standards by which a proposed conditional use must

conform before approval may be given

Amendments to Zoning Regulations

• Zoning Regulations consist of a text and zoning district map, adopted or amended according to state statute or municipal charter/ordinance
• Municipal Corporations
• O.R.C. 713.12
• The Municipal Corporation must hold a public hearing and notices in compliance with the statute must be given 30 days must be given for the public to

examine the text and/or map changes being requested.

• No amendment may become effective “unless the ordinance proposing it is first submitted to the planning commission, board, or officer for approval,

disapproval, or suggestions and the commission, board, or officer is allowed a reasonable time, not less than thirty days, for consideration and report.”

• Townships
• Amendments may be initiated by Township Zoning Commission, resolution by the board of township trustees, or by an application by an owner or lessee of

the property.

• A hearing must be set by the township zoning commission for a date not less than 20 days and not more than 40 days from the date of the certification of such

a resolution.

• The county or regional planning commission shall recommend the approval or denial of the proposed amendment or the approval of some modification of it

and shall submit its recommendation to the township zoning commission.

• The township zoning commission, within thirty days after the hearing, shall recommend the approval, denial or modification of the proposed amendment and

submit that recommendation to the board of township trustees.

• The board of township trustees, upon receipt of that recommendation, shall set a time for a public hearing on the proposed amendment, which date shall not

be more than thirty days from the date of the receipt of that recommendation.

• Within twenty days after its public hearing, the board of township trustees shall either adopt or deny the recommendations of the township zoning

commission or adopt some modification of them.

Appeals

Appeals from a decision of an administrative officer heard by Board of Zoning

Appeals/Planning Commission

BZA must follow proper procedural rules= notice, hearing, timely etc. BZA’s act in an administrative or quasi-judicial capacity

Must allow applicant:

• Present evidence, administer oath to witnesses, provide for examination and cross-examination,

and set forth facts upon its decision

Landowners adversely affected by the BZA can appeal the decision to the court of

common pleas

The common pleas court will overturn the decision of the BZA if the decision was

unconstitutional, illegal, arbitrary, capricious, unreasonable, or unsupported by the preponderance of substantial, reliable, and probative evidence on the record

Filing of appeal with court suspends further action by BZA

Other Related Considerations Related to Zoning

Power to Abate Nuisance through the exercise of the police powers of local

government.

Municipal Corporations

Exercise of police power through zoning regulations, property maintenance codes, nuisance

statute, Ohio Basic Code and local ordinances.

Can impose penal sanctions for violations within the municipal corporation. Municipal

corporations may also invoke civil remedies such as injunction and seek fines to have the nuisance abated

Townships

Exercise of police power through zoning regulation and nuisance statutes Can impose civil sanctions and remedies.

Other Related Considerations Related to Zoning

Junkyard & junk motor vehicles Spot Zoning Zone changes Signs

References

Baldwin’s Ohio Handbook, Ohio Planning and Zoning Sec. 2.1 Ohio Revised Code