Wednesday, May 20, 2009

Too many businesses … of your kind, that is …

  The fundamental purpose of the “variance” in land use law is to provide an outlet when the zoning does not make sense for a particular parcel.  Zoning is inherently a blunt instrument, and simply drawing zones on a map may not address the peculiarities of a particular parcel.  It makes sense that a variance should not be so extreme that it conflicts with the basic idea behind the zoning – it would be extreme, for example, to allow a variance for oil refinery in a residential neighborhood.  But many land use ordinances go beyond this, to require broadly that the requested use variance meet some sort of “the public interest.”  This requirement, which in practice allows governments wide discretion in second-guessing the specifics of landowner plans, seems to be to be contrary to the thrust of zoning laws, in which government regulation is limited to categorical restrictions.
Hand    An interesting example is a case decided this week by a New Jersey appellate court, concerning a variance application in Roseland, a suburb in Essex County.  (The case is Seung Chang v. Board of Adjustment, No. A-5248-07T3, 2009 Westlaw 1361677 (N.J. Super. Ct. App. Div. May 18, 2009).)   The applicant leased part of a one-acre parcel in an area zoned for townhouses and garden apartments.  But the zoning ordinance requires, as stated by the court, “a five-acre minimum lot size for townhouses and a nine-acre minimum lot size for garden apartments.”  (I assume that this prohibits three-unit townhouse clusters.)  The applicant wanted to open a nail salon in a building that had previously been used as a fuel oil company.  The land across the street was zoned for businesses.
   The court affirmed the decision of the borough’s zoning board to deny the variance.  The application didn’t meet New Jersey’s “public good” requirement for a variance because, the board concluded in large part, there were two other nail salons nearby and the applicant could have opened up a nail salon elsewhere in the borough.
   This kind of thinking goes against a wise conception of the variance, in my opinion.  It would be one thing to conclude that a small business would be incompatible with the residential zoning of the area.  But it’s another thing for the government to tell the applicant that there are too many nail solons in the area, while another business that would have an identical land use impact (perhaps a hair salon?) would be acceptable.  This kind of decision is subject to abuse and leaves the zoning authorities in the position of going beyond land use regulation and unwisely regulating competition …  

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May 20, 2009 | Permalink | Comments (0) | TrackBack (0)

Tuesday, May 19, 2009

A “sign” of the times …

   One can either frown, chuckle, or ignore the story of the efforts of Reading, Ohio (north of Cincinnati), to regulate the placement of a busty mannequin as an attraction outside a barbecue restaurant.  (After asserting that the mannequin was an unpermitted sign, the city’s Design Review Board reportedly required that she be covered up; the barbecue owner reportedly plans to appeal.)  One can also not care whether the case raises issues of first amendment rights to free expression, or is just a case of regulating commercial advertisement.  But one cannot deny that we will be hearing more land use cases such as these, as American commercial land use advertisements become, like our society as a whole, more confrontational (consider the punch-counterpunch commercials between Apple and Microsoft), more approving of “shocking” behavior, and more obsessed with selling through titillation …

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May 19, 2009 | Permalink | Comments (0) | TrackBack (0)

Monday, May 18, 2009

The limits of the appeal of the car-free community …

    Can American communities exist without cars?  The New York Times published last week a “running commentary” on whether American towns can be successful that ban cars, or at least relegate them to outskirts.  As assessed by expert contributors and hoi polloi commentators, some of the keys are an efficient public transportation system and mixed land use, in order to make tasks and travels easy without a car.  
New urbanism    Here are my two cents:  As shown by many of the citizen commentators, car-free living is not so unusual any more.  Despite Witold Rybczynski’s odd assertion that “there are only six American downtown districts [two areas of NYC, Chi., SF, Boston, and his own Phila.] that are dense enough to support mass transit” (uh, ever been to Washington or Seattle or Portland, for example?), there are many American urban neighborhoods today that look like the Arlington, Va., picture at the NY Times site: dense, mixed-use land use with grocery shopping, apartments, nightlife, and mass transit to nearby offices.  Even Tampa, Florida, near me, famously among America’s least-walkable cities, holds a Hyde Park District in which apartment and townhouse residents can shop for lettuce, sip coffee, hear a band, and walk or catch a bus to work without a car.  Many do.     
   But Rybczynski and others are correct in suggesting that the key question is not whether car-free neighborhood can prosper—they clearly can – but whether a large percentage of Americans truly want to live in such neighborhoods.  Car-free sectors are almost certainly going to be apartment, condo, and townhouse neighborhoods.  It is much tougher to build a car-free community of single-family houses with yards.  Accordingly, while many young urban professionals embrace a life of apartment-above-a-Starbuck’s-with a-Whole-Foods-down-the-block, it’s another for an American family with kids to do so.  Unlike in Germany, a suburb in which the Times focuses, far fewer American families have accepted the car-free lifestyle.  Many factors go into these decisions, including (and this is a point rarely mentioned by optimistic urbanists) dissatisfaction with urban public schools.  Attitudes may be changing, but let’s recognize the limitations of the appeal of the car-free community …    

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May 18, 2009 | Permalink | Comments (0) | TrackBack (0)