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Friday, 27 January 2012 00:01

Zone defense: a work in progress

Written by  John Deem

Constantly shifting growth patterns, land use needs often make logic a moving target when deciding how to best utilize land.

Zoning — like religion, the Constitution or the Major League Baseball strike zone — often is a matter of loose interpretation.

Are a community's zoning regulations a beginning or an end?

Are they restrictions meant to limit development? Or catalysts meant to drive it?

Do they exist for the well-being of the community? Or for the protection of a neighborhood, or even an individual?

For residents of the Monteith Place subdivision in Huntersville who oppose a proposed behavioral health facility next door, zoning is about protecting their safety and property values. In other words, zoning has the potential to prevent something they don't want to see built. For them, zoning regulations are absolutes, impervious to interpretation.

In Davidson, CommunityOne Bank, owner of 179 acres it hopes to see developed along N.C. 73, sees zoning in the same way, if through a quite different lens. The Asheboro-based bank, which acquired the property through foreclosure, has sued Davidson over a rezoning of the tract approved by the Town Board last year. Among its allegations in the suit is that the property's new zoning renders it virtually useless for development.

That argument makes the assumption that the 2011 rezoning represents the last word — functionally, at least — in how (or whether) the so-called Davidson East property will be developed.

But Davidson, in its response to the lawsuit filed last week in Mecklenburg County Superior Court, offers a less restrictive view of existing zoning. In its request for dismissal of the CommunityOne suit, the town argues that the bank hasn't been denied anything, but it has yet to come forward with a specific request to develop the property.

What that response only hints at is that thousands of acres are rezoned in the Lake Norman area every year at the request of the property owners. And more often than not, the change reflects a less restrictive use of the property, meaning the original zoning was far from absolute. That's certainly the assumption Carolinas Healthcare System (CHS) is making in its request to build a two-story, 113,000-square-foot, 110-bed psychiatric care facility and outpatient clinic joined by a 30,000-square-foot medical office on the 17-acre tract the hospital owns at the corner of N.C. 115 and Verhoeff Drive.

To make the project happen, CHS must convince Huntersville commissioners to rezone the site from its current residential classification to one that allows campus-style institutional development. At first blush — and to many residents of the unfinished Monteith Park subdivision — that sounds like a huge zoning leap. But the same site was home to medical institutions for decades under early County and then Huntersville zoning, and today's zoning for the tract calls for something for which the tract will never be suited, single-family housing. It could also, by right, be an apartment complex, which is a potentially likely, by right use given the nature of properties on three sides of the site.

In other words, precedent would suggest that such a medical facility makes perfect sense for the site, even though now zoned Neighborhood Residential, while some neighbors argue that the proximity of their homes changes the equation.

The paradox

In the early days of zoning, communities were typically divided into three districts — residential, commercial and industrial.

"In the 1950s the complexity and sophistication of development regulations grew in response to increasing development and higher population densities in the state," writes David W. Owens and Andrew Stevenson of the UNC School of Government in a paper entitled, An Overview of Zoning Districts, Design Standards, and Traditional Neighborhood Design in North Carolina Zoning Ordinances. "Many zoning ordinances were amended to create subdivisions within each basic district category."

The Charlotte zoning code of 1951 included six zoning districts (two each for residential, business and industrial uses), Owens and Stevenson note. Also in 1951, Raleigh created a separate district for office and institutional uses "designed to meet the problem of handling doctors' offices and similar offices which want to open in residential districts."

In 1954 the Shelby zoning ordinance was amended to add a "neighborhood business" district and to divide its single residential district into three residential districts. Also in that year, Raleigh added a shopping center district and a buffer commercial district to its zoning ordinance.

Between 1952 and 1992, Charlotte's zoning ordinance grew from five to 60 zoning districts; Greensboro's, from seven to 38; and Raleigh's, from five to 57. But far from being restrictive, the more-specific zoning was part of a development explosion.

That wouldn't have surprised Edward Bassett, the New York City lawyer and so-called father of American zoning, who died in 1948.

"It may seem paradoxical to hold that a policy of building restriction tends to a fuller utilization of land than a policy of no restriction," Bassett once said. "But such is undoubtedly the case. The reason lies in the greater safety and security to investment secured by definite resources."

And therein lies the conundrum of the CHS proposal. Is the ultimate decision about the safety and security to community investment, or about the perceived threat to the personal safety and financial security of those living nearby?

Just another episode of Planning in the Twilight Zone.

 

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