John M. Stamm
Extension Agent, Community Development
Franklin County, and Coordinator of Extension Land Use Team
Since early in this century, zoning has been the major local tool for regulating land use in Ohio. Over the years zoning has evolved, and it continues to be at the heart of today's land-use issues. A simple definition of zoning is a locally enacted law that regulates and controls the use of private property. It divides the jurisdiction into districts, or zones, for different uses and determines which uses are allowed. It regulates lot sizes, building heights, impacts on adjacent land uses, and other specifics.
The power to regulate land is delegated from the state to local governments. Three broad types of power are delegated to local governments -- taxation, eminent domain, and police power. Zoning is a police power. Though zoning is widespread in Ohio, communities are not required to have zoning. Indeed, many communities have no zoning regulations in force, especially in southern and eastern Ohio.
Ohio played an important role in helping to establish zoning as a common local government tool. In 1915, Alfred Bettman, an attorney working in Cincinnati, was instrumental in drafting and lobbying for pioneer planning and zoning legislation. These innovative ideas, along with those from other states, helped lead to the Standard State Zoning Act published in the mid 1920s by the U.S. Department of Commerce. The act served as model zoning legislation for the states. In the 1920s, many states passed statutes enabling local units of government (townships, municipalities, and counties) to enact zoning ordinances. The legality of zoning was determined in a landmark U.S. Supreme Court case originating in Ohio. The Village of Euclid (Ohio) vs. Ambler Realty Company (272 U.S. 365 [1926]) was argued by Alfred Bettman. The court's ruling in favor of the Village of Euclid established the basic legality and constitutionality of zoning. This ruling encouraged local governments to adopt zoning and broaden its scope. Now, more than 80 years later, state and federal courts continue to maintain the constitutionality of zoning. However, landowners continue to challenge the right of a local government to restrict their use of their property. Courts have extensively defined how and to what extent property can be regulated, and they continue to do so.
The purposes of zoning are to regulate land use, prevent land-use conflict, and allow growth to occur in a rational manner. More specifically, zoning aims to:
Conversely, zoning in Ohio cannot:
Cities and villages (incorporated areas / municipalities) in Ohio have the authority to administer zoning. They must do this according to the Ohio Revised Code (ORC) unless they have adopted a charter, which can give the municipality broader zoning and other powers. Charter communities may fashion zoning regulations that vary from (but cannot violate) the ORC.
Townships administer zoning in unincorporated areas (outside incorporated cities and villages) unless the township has voted to let the county administer zoning, which is called county zoning. Approximately 16% of counties in Ohio have county zoning in at least one township. Both townships and counties must administer zoning according to the ORC. Not all states delegate zoning authority to townships, but rather keep the authority at the county level.
Whether zoning is administered by the township, county, or municipality, it can be much more effective when based on an adopted comprehensive plan (see OSU Extension Fact Sheet CDFS 1269-99, Comprehensive Planning). Such a plan defines a community's development goals and priorities -- where, how, and when a community will grow -- and spells out the tools necessary to reach the goals. One of these tools is zoning. Municipalities may adopt their own comprehensive plan, or may be part of a county comprehensive plan. A county or regional planning commission creates a county plan.
It is the township trustees (or county commissioners in the case of county zoning) who initiate the zoning process in an unincorporated area by adopting a resolution declaring their intention to proceed with zoning (zoning legislation in townships is called a resolution, and in municipalities it is called an ordinance). Next, they appoint a zoning commission, which is responsible for preparing a zoning text and map. When this task is completed, the commission holds a public hearing, then sends the map and text for comment to the county or regional planning commission. Prior to going to referendum, the trustees or commissioners must hold a public meeting and review the map and text. They may deny, modify, or adopt the map and text as a resolution. When officially adopted, the resolution goes to local referendum. For the resolution to become law, a majority vote is needed.
Rural townships rarely have enough staff to do all the work to initiate and develop the zoning maps and text. They usually depend on the county or regional commission, hire a consulting firm, or refer to the Ohio Model Zoning Code as a starting point. Whatever the approach, enacting zoning is always a participatory and sometimes a costly endeavor.
While general procedures are similar in municipal zoning, it is normally more sophisticated and addresses more complex issues than rural zoning. Again, charter municipalities may create further variations on zoning procedures.
Three basic units administer zoning -- the zoning commission, the board of zoning appeals (BZA), and the zoning inspector. They depend on one another to make sure zoning is fair and effective in a community.
In unincorporated areas, the zoning commission is made up of five citizens, per the ORC. In charter communities, the planning commission may carry out the zoning commission duties and may have a different membership, often defined by the charter. The commission is an advisory group, and zoning decisions may be overruled by unanimous agreement of the local legislative body (township trustees, county commissioners, or city council).
The basic duties of the zoning commission are preparing the zoning text and map, holding public hearings, initiating zoning amendments, and making formal recommendations on all amendments.
Text and Map The text is the written part of the zoning resolution. Typically, the text covers definitions, enforcement, administration, exceptions, rezoning, outlines of the different districts, parking, signage, mobile home parks, floodplains, provisions for the zoning maps, and other features. Zoning districts are generally classified into residential, industrial, commercial, and agricultural districts although they often allow districts that permit a blend of uses. The zoning map is drawn up to show which areas are classified in which district.
Adoption of zoning regulations by a community does not mean, however, that the previously stated purposes will be fulfilled. First of all, the zoning text must appropriately address the particular needs of the community. It must have the proper balance of flexibility and firmness. Also, the zoning text and map must be kept up-to-date. Typically, they should be updated every five years so the process can reflect changing community priorities and realities of growth.
Zoning Amendments Amendments are extremely important to the zoning process. An amendment, or rezoning, is a change in the zoning map or text. Zoning regulations must be flexible to allow the community to be responsive to the need for legitimate changes. The amendment process enables the community to monitor changes and encourage those that enhance the community. It also allows the public a voice in changing zoning regulations. In rapid growth areas, requests for amendments are very common and often controversial, because they may cause changes in traffic flow, runoff, aesthetics, noise, and other factors that may affect surrounding property.
Amendments are initiated in the following ways -- adoption of a motion by the zoning commission; adoption of a resolution by the county commissioners, township trustees, or city council; the filing of an application by at least one owner or lessee of property within the area proposed to be changed or affected by the amendment.
The zoning inspector is responsible for the day-to-day administration and enforcement of the zoning regulations. He/she is appointed by the township trustees, county commissioners (in the case of county zoning), or the municipal legislative or administrative body.
The inspector's duties involve reviewing applications for zoning permits, conducting on-site inspections, investigating violations, maintaining records of nonconforming uses, maintaining up-to-date text and map, and proposing amendments. In zoned areas, all new construction and many additions and other changes in property must receive a zoning permit from the inspector. He/she must have a thorough knowledge of the zoning text and map and use these as a basis for granting permits and citing violations.
The board of zoning appeals (BZA) is the "judicial branch" of zoning administration. In unincorporated areas, the board of zoning appeals is made up of five local residents. Municipal BZAs are similar. If a person wants to do something with his/her property that is not specifically allowed in the zoning regulations, that person may ask for a conditional use or a variance, depending on the circumstances. Both are obtained through the BZA.
Both variances and conditional uses require a hearing from the BZA. However, variances are true exceptions to the zoning resolution, while conditional uses are allowed changes that require a hearing. Municipalities may modify the roles of BZAs. Zoning officials must judiciously monitor these change processes if zoning is to serve its true purpose in a community. Allowing arbitrary and inconsistent changes can weaken the integrity of the regulations and trigger land-use conflicts, loss of property values, and lawsuits.
Variances A more technical definition of a variance is a modification of the strict terms of the zoning regulations where such modification will not be contrary to the public interest and where, owing to conditions peculiar to the property and not the result of the applicant, a literal enforcement of the regulations would result in unnecessary and undue hardship.
If a person applies for a zoning permit and the zoning inspector denies it, he/she may request a variance (or appeal the decision of the inspector). If, due to special conditions, the literal enforcement of the ordinance causes an individual unnecessary hardship, a variance can be granted. A BZA should have standards against which it judges every variance and conditional-use request in order keep decisions consistent and defensible.
Conditional Uses Conditional uses are those that are perfectly appropriate for a district but require a hearing to determine that they will not have adverse effects as defined by the conditional-use standards in the resolution. They require approval of the BZA. For example, in a commercial district, a restaurant may be a permitted use, but a drive-through restaurant may be a conditional use.
Zoning can have numerous benefits for a community. However, it is not without difficulties. Zoning officials and the public should be aware that zoning is subject to certain "real world" considerations. For one, zoning is hard to separate from local politics -- elected officials appoint zoning commissions and BZAs and hire zoning inspectors. Pressure from interest groups, businesses, or powerful citizens can complicate decisions. Administration and application of zoning can change from one political administration to the next. Another reality, especially in sparsely populated areas, is staffing and training. Communities may not have the means or opportunity to thoroughly train part-time commission and board-of-appeals members and inspectors.
Another issue that is constantly at odds with zoning is the property rights issue. Some citizens will always believe that zoning is an invasion of property rights and other constitutional rights and will challenge the government's right to restrict the use of their own property. Cases sometimes land in court, which can be very expensive for communities and landowners.
Issues involving land use will be extremely important in the future. As communities continue to deal with these issues, they will re-examine the roles of numerous tools in striving to balance various objectives such as economic growth and quality of life. Zoning will continue to be one of the more important tools available to local governments in this effort.
Common Groundwork: A Practical Guide to Protecting Rural and Urban Land. 1993. Institute for Environmental Education.
Constitutional Issues of Growth Management. 1977. David R. Godschalk et al. The American Society of Planning Officials Press.
Land Use Controls: Present Problems and Future Reform. 1974. David Listokin, Ed. Center for Urban Policy Research.
Ohio Planning and Zoning Law. 1998 Edition. Stuart Meck and Kenneth Pearlman. Banks-Baldwin Law Publishing Company.
Ohio Model Zoning Code. 1991 Edition. Terry Jacobs, Ed. Ohio Department of Development.
Ohio Rural Zoning Handbook. 1991. Terry Jacobs, Ed. Ohio Department of Development.
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