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Contemporary Zoning Conflicts

An evolving landscape presents new challenges.
by Kristina Daniel Lawson

Eighty-six years ago, the U.S. Supreme Court validated the practice now known as modern-day zoning. Thanks to the court’s decision in Village of Euclid, Ohio v. Ambler Realty Co., 272 U.S. 365 (1926), the substantial majority of American cities today enjoy a separation of the various land uses in a manner that seeks to prevent conflicts and nuisance problems. In addition to regulating the aesthetics of a community, one of the primary end goals of a zoning ordinance is to prevent land use conflicts that could have an adverse effect on the public health, safety, or welfare.

However, as urban patterns change — both voluntarily and involuntarily — contemporary land use conflicts emerge. Today, many local governments and other special-interest groups are focused on the social utility of protecting and incentivizing certain land uses with some level of conflict a necessary evil. As a practicing land use attorney in California, I have witnessed three interesting land use conflicts in the past several years.

Agriculture vs. Housing

Modern-day agricultural uses are often complex commercial and industrial operations. They use a significant amount of water, require numerous diesel truck trips, produce large quantities of animal waste and byproducts, utilize chemical pesticides, and attract bacteria.

Gone are the days of a new proposed residence bumping up against a small rural farming operation with a few head of cattle. It is no longer a debate about flies and odors; today’s agricultural/residential conflicts involve significant environmental concerns, including air quality and greenhouse gas emissions, traffic, noise, and waste disposal. Often, environmental justice concerns are also implicated.

In California’s Central Valley and throughout the nation’s agricultural regions, agricultural/residential land use conflicts have in some cases become more heated since the collapse of the housing market. During the housing boom, single-family residential development pushed through and past the suburbs into areas traditionally reserved for agricultural use. Following the housing market collapse, as a result of a lack of available credit, coupled with an inability of homeowners to quickly exit residences with underwater mortgages, there is heightened immobility in the residential market. Further, throughout America’s exurbs, housing developers failed to complete numerous infrastructure and mitigating improvements that were promised to municipalities and to the home buyers. Consequently, normal buffers such as new roads, sound walls, and screening landscaping were never put in place to separate conflicting land uses.

In previous years, residents offended or annoyed by adjacent land uses could institute self-help by moving away from the use. Today, with restricted mobility, homeowners are unable to relocate or pay to install mitigation features, and both municipalities and agricultural interests are hearing the complaints. 

TOD vs. the Single-Family Suburban Residence

Another interesting contemporary land use conflict is simmering in suburbs across America. As commercial real estate developers search for financeable development opportunities, residential apartment complexes have become a desirable investment. These multifamily developments have also been widely encouraged throughout the country in connection with sustainable and smart growth development strategies. In states like California and Virginia, high-density developments are cropping up around transit hubs, largely as a result of legal incentives and competitive financing available to developers of multifamily product.

Because Americans have traditionally regarded the suburbs as a bastion of single-family residences, the influx of large multifamily residential developments has concerned many long-time suburbanites. Common themes include concerns about traffic, noise, and impacts on public safety response time. In this context, it is the secondary impacts caused by the multifamily land use that makes it offensive, not necessarily the land use itself.

Churches vs. Shopping Centers

As a result of federal legislation in place for about the past 10 years, land use planners and decision-makers evaluating religious land uses have also been presented with challenging, almost compulsory, land use conflicts. The Religious Land Use and Institutionalized Persons Act, commonly referred to as RLUIPA, precludes local agencies across the country from imposing or implementing land use regulations that would impose a substantial burden on religious uses, unless the local agency demonstrates that the imposition of the burden is in furtherance of a compelling governmental interest and is the least restrictive means of furthering that interest. The law also prohibits local agencies from imposing land use regulations on religious uses on less than “equal terms” with a nonreligious assembly or institution. 

Recently, it has become quite common for religious end users, such as churches and parochial schools, to seek available assembly halls, facilities, and other gathering spaces in atypical locations such as shopping centers and industrial parks. Land use planners and other end users in the shopping centers and industrial parks cite a wide variety of potential land use impacts caused by churches and other religious uses, in opposition to the siting of such uses in these atypical locations. However, because RLUIPA is seemingly as close as you can get to an exemption from a zoning ordinance, it often forces exactly the land use conflicts traditional zoning ordinances have sought to prevent for eighty-six years.

As the above examples briefly illustrate, the planner’s utopia that a perfect zoning scheme could theoretically create is impacted by present-day economic forces and government regulation. The economic downturn causes conflict that perhaps would not have existed under strong economic conditions, and the government in some cases creates land use conflicts when it seeks to solve other social dilemmas. Even in Euclid, Ohio, the city on Lake Erie that eighty-six years ago opened the door for modern-day zoning, land use planners and the City Council continue to face new, contemporary land use conflicts.

 

Kristina Daniel Lawson is a partner in the Land, Environment, and Natural Resources Division in the San Francisco office of Manatt, Phelps & Phillips LLP. Contact her at klawson@manatt.com.

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Linda

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