Edmonton (Alta.) - 1996-1999 - DP3_Selection of a zoning model (1998-05-14)

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Selection of a zoning mod I Edmonton. Planning

Directions for a New Zoning Bylaw

Planning and Devik>iarrient

LIBRARY The City of EdmOhtiin

SELECTION OF A

ZONING 11 MODEL I.

DISCUSSION PAPER #3

elitiOnton 313.1a E3 E373 19961999c

PLANNING AND DEVELOPMENT

Planning Services Branch May 14, 1998

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Table of Contents 1.Introduction 2. Why Zone 3. Why the Time is Right for Change 4. What Needs to be Changed 5. Models for a New Zoning Framework 6. Selection of the Model

1 2 3 5 7 9

Appendix Model 1: Performance Based Zoning Model 2: Modernization of the Existing Zoning Bylaw Model 3: Creation of a New Regulatory System Model 4: Land Use Control without Zoning

11 16 22 30

Figures Figure 1 Methodology for Evaluating the Four Models Figure 2 Evaluation of the Four Models and the Selection of the Model

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1. Introduction This report initiates discussion about directions for a new Zoning Bylaw. Initially, the report is driven by recent provincial legislation requiring that all municipalities review their Zoning Bylaws before September 1, 1998. This will be achieved, in the City of Edmonton, by a number of minor text amendments to the current Land Use Bylaw.

However, the Planning and Development Department has embarked on a major 3-year review of its Zoning Bylaw. Research has indicated that a wide variety of types of Zoning Bylaws exist and that opportunities for improving the regulatory system - of which the Zoning Bylaw is but one smaller component - should accompany the discussion leading towards a new Zoning Bylaw. Therefore, to cover the range of possibilities for a new Zoning Bylaw and to include discussion of service improvements to the regulatory system, four models have been developed and are presented in this report. They are summarized in part 4 of this chapter and are further elaborated in the appendix. Briefly, they are the following: Model 1 -Performance Based Zoning (Development of a new zoning system) Model 2 -Modernization of the Existing Zoning Bylaw Model 3 -Creation of a New Regulatory System Model 4 -Land Use Control without Zoning (also referred to as the No Zoning approach) An evaluation was done to narrow the range of possible models for further public discussion and to provide a basis for comparing the four models against each other. This is depicted in Figure 1.

Figure 1 Methodology for Evaluating the Four Models

Low Certainty/High Flexibility

Public Rights

Private Rights

High Certainty/Low Flexibility Figure 1 contains two parameters. The vertical parameter is the degree of certainty/flexibility. Certainty is a desired objective because it provides development

applicants and residents alike with clear rules and expectations with regard to future development possibilities. Edmonton's Land Use Bylaw provides a degree of certainty by attaching several permitted uses to a specific land use district (zone). If a development complies with all provisions of the Land Use Bylaw, it will be approved "as-of-right".

Flexibility is required to accommodate unique and innovative development concepts and sites with significant physical constraints. Edmonton's present Land Use Bylaw provides a degree of flexibility through the use of a series of discretionary uses. If a proposed development conforms with the applicable regulations of the Land Use Bylaw and any statutory plans, the Development Officer has the discretion to approve the permit. Once approved, discretionary uses become subject to the "right of appeal" by impacted property owners.

The horizontal parameter involves private versus public rights. Private rights describe the situation where land use control relies on market forces to dictate the location and separation of land uses. The private sector achieves land use control, in its purest form, through private deed restrictions or restrictive covenants. Public rights encompass public intervention to protect the public interest and are represented by an institutionalized form of land use control. A municipal Zoning Bylaw is a common example. However, there can exist within different Zoning Bylaws varying degrees of public intervention to protect the public interest. Public rights depend on how well the public interest can be defined and measured so that specific development or performance criteria can be established. Any land use control system recognizes the need to find some balance and accommodation of the rights of the development applicant, impacted neighbours and communities, and civic interests.

Ultimately, some balance must be struck, between certainty and flexibility, and between private and public rights, if an effective and acceptable new Zoning Bylaw is to be developed.

This report provides a brief overview of the directions for a new Zoning Bylaw which outlines the purpose of zoning; why the time is right to make changes; what needs to be changed; the models for preparing a new Zoning Bylaw; and finally, selecting the model.

2. Why Zone Zoning is a mechanism for public intervention in land use planning and development control in order to protect the public interest. Land use planning involves the balancing of individual, private interests and the broader, public interest, especially where private citizens' actions can reasonably be expected to have an adverse impact on other parties. Government acts as a guarantor for those other parties. In addition, government acts to coordinate land use activity, thereby reducing risk to investors and ensuring the orderly, efficient and economic development and redevelopment of land.

2

Zoning is an implementation tool within a physical planning and development system.

Such a system has existed in some form since the incorporation of the City of Edmonton in 1892. The City of Edmonton controls land use through the Land Use Bylaw which • was adopted by City Council on July 3, 1980 and replaced the former Zoning Bylaw and Land Use Classification Guide with a single, comprehensive set of controls. Its purpose is to regulate the use of land within Edmonton and to set basic standards for development.

It is the key tool for implementing the City's land use policies as expressed through the Municipal Development Plan and all district, neighbourhood and small area plans.

Zoning is an exercise of the basic power delegated to municipal government by the Province, under the Municipal Government Act, to regulate land use in order to achieve the public good or interest. This includes: • the need to protect the public health, safety, and general welfare of its citizens; • the need to foster the orderly, efficient and economic development and redevelopment of land; • the need for environmental protection; • the need to protect property rights and values; • the promotion of social and other quality of life objectives; • the promotion of high standards of urban design which achieves an attractive, safe and sustainable urban environment; • the promotion of economic development; • the need to accommodate appropriate public participation in public decision making on planning and development matters; • the need to minimize the time for development approval; and • the need for flexibility and reasonableness to adjust regulations and processes required to meet society's changing demands and market expectations.

3. Why the Time is Right for Change The time to review and change the City's Zoning Bylaw and perhaps its regulatory context could not be better. There is considerable evidence that the winds of change are blowing from quite a number of sources - political, social, economic and administrative. In sum, the same fundamental question keeps emerging. "What business should we be in and how should we best go about doing it?"

The Provincial Government initiated change with its new (1996) Municipal Government Act which consolidated much municipal legislation. More importantly, it requires each municipality to have a Land Use Bylaw and furthermore, to review it by September 1, 1998. The latter will be accomplished through some relatively minor text amendments to the Land Use Bylaw. For example, the number of dwelling units per parcel must be specified in the Land Use Bylaw. A text amendment bylaw will be prepared and presented at a Public Hearing in the summer of 1998. As well, the Act

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requires each municipality to adopt a new or revised Municipal Development Plan by September 1, 1998.

Edmonton City Council chose to aggressively pursue a new vision for the City in the preparation of a new Municipal Development Plan. Council's priorities in five key areas (municipal government responsibility areas) - Economic Development, Services to People, Leadership and Regional Cooperation, Infrastructure Development and Maintenance, and Planned Growth - guide the Plan's preparation. It also allows the Planning and Development Department to evaluate how its policy and regulatory instruments - from plans to development permits - can achieve Council priorities as articulated through the new Municipal Development Plan.

The winds of change also came from the development industry and the public. In 1993, the Planning Process Round Table was organized to review the current planning process among all of the stakeholders. A common concern emerged over the frequent "battles" which occur between developers and community groups at City Council over site specific development. There was a common desire to reduce the level of conflict and to implement measures which supported more constructive negotiations, information sharing and public notification. The development industry emphasized rapid response capability, a more streamlined regulatory system and greater flexibility in zoning in order to better adapt to a changing marketplace. Communities emphasized earlier and greater participation in the development process as well as better information sharing and additional resources.

The winds of change were also blowing within the corporation. In 1996, Council began the City '97 Program, a planned course of corporate renewal. Its goal was to build a streamlined and responsive organization while responding to fiscal and service challenges. This would be achieved by departmental restructuring. As part of City '97, the Planning and Development Department has initiated a review of its existing organization structure and business practices. The Department has already received approval from City Council to develop a new or revised Zoning Bylaw over the next three years.

Within the Planning and Development Department, the winds of change have blown for some time, reflected in organizational change, new office space and computers and the production of business plans. Key to this change has been the adoption of the customeroriented service model which has reshaped the Department's way of doing business.

Historically, the Department expected its customers to come to it, seeking its statutorilyderived programs and services. Increasingly, the Department has sought out its customers; redefined what business it is in; and endeavoured to understand the needs of its customers.

Finally, the City's Land Use Bylaw is 18 years old and in need of major repair. Since its adoption in July of 1980, the City's Land Use Bylaw has grown threefold and introduced over 190 general amendments (as of January 1998). The number of general 4

amendments are increasing in frequency and complexity. A review of this situation suggests that the Land Use Bylaw is increasingly becoming a patchwork document of adhoc amendments. The use of specifically designed land use overlays and site specific direct control districting frequently circumscribes the standard and conventional land use districts. In other words, if too many exceptions to the rules are being create, perhaps the rules should be changed.

4. What Needs to be Changed Several background and Council reports exist, detailing what needs to be changed in Edmonton's current Land Use Bylaw. A more detailed and systematic review has yet to occur. This review will encompass both the content and the administration of the Zoning Bylaw. Council's direction will also be important, particularly in regards to such matters as their own areas of responsibility and decision-making authority, and the decision on the nature and extent of public intervention in the development process. The following list is a very preliminary identification of some of the deficiencies and criticisms that exist within the current Land Use (Zoning) Bylaw. The majority of items relate to the content of the current Land Use Bylaw. However, it is important to begin thinking about administrative or structural items which presently hinder or impair the effectiveness of the Land Use Bylaw. (a) Critique of the Content of the current Land Use Bylaw 1. The Land Use Bylaw is an old and clumsy document. This 18 year old document has accumulated many band aid solutions. The document itself has grown threefold and introduced almost two hundred general amendments. The use of numerous Statutory Plan Overlays (SPOs) and site specific development control districts (DC5s), for example, are not user friendly and make the document clumsy.

2. Since the Land Use Bylaw is the "front door" to the eventual development and occupancy of land, it is often misused to solve more complex, societal problems which go well beyond the realm of land use regulation. The Land Use Bylaw has been an easy, but not appropriate, repository for 'people/behaviour' issues such as peep shows, pawnshops, liquor stores, and the like.

3. Increasingly, there is an insufficient link between policy, be it the Municipal Development Plan or Neighbourhood Plans, and regulation. Without this link, regulations may be efficiently administered but the question arises: Are they effective?

4. The Land Use Bylaw must meet contemporary demands to adjust to a changing society as well as achieving a good balance between flexibility and certainty. The Land Use Bylaw has fallen behind in this pursuit, evidenced by a number of structural problems which are described below as well as the increasingly slow response to change, dictated by the threefold increase of the document and the volume of incremental changes to it.

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5. A number of structural problems exist within the existing Land Use Bylaw. These include the following.

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There is inadequate recognition of the different urban forms between inner city and suburban land uses.

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There are too many Land Use Districts (zones). They need to be compressed.

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The Use Classes are too rigid and outdated and do not reflect changing technology and business patterns. Big box retailers and home occupations are two examples of new uses.

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The Industrial Land Use Districts (zones) reflect an outdated world with concepts that have been replaced. Manufacturing, for example, has been supplanted by a more service and information-oriented economy. Also, recent issues associated with risk management and separation distances, which require new performance measures, require attention.

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The Special Provisions sections of the Land Use Bylaw are outdated. New standards are required for signs, parking and landscaping.

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The exercise of discretion associated with the Variance provisions need careful review. Better guidelines need to be established to assist the Development Officers in their decisions.

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There is a need to insert environmental legislation.

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There are four Annexation Area (1981) Land Use Bylaws which need to be incorporated into the City's Land Use Bylaw.

(b) Critique of the Administration of the current Land Use Bylaw 1. There is insufficient attention to 'pre-decision notification' in the Development Permit process. Presently, the notice goes out to the public only after the Development Officer has made a decision.

2. There is a need to improve public education and awareness of the Land Use Bylaw processes for typical users.

3. Enforcement of the Land Use Bylaw is understaffed and otherwise weak, relying, for the most part, on a citizen complaint model.

4. There is overlap and poor linkage with licensing. Provincial licensing regulations, for example, are sometimes in conflict with municipal bylaws or create enforcement issues.

5. The technology exists to increase processing efficiencies, the accuracy of the information and the user friendliness of the Land Use Bylaw.

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6. A system of monitoring the Land Use Bylaw needs to be established to ensure that it is able to adapt quickly to changing customer and civic demands for service. Such a monitoring system should include both industry and community representation.

7. Other civic and public agencies need to become zoning 'partners' in providing a better and more efficient service.

8. Council's role needs to be redefined in terms of achieving a better balance between of its policy-making functions, which should be enhanced, and its review of development through rezonings.

5. Models for a New Zoning Framework Four models are initially put forward for developing a new zoning framework. Three of the four models describe the Zoning Bylaw. Model 3 goes further by describing significant and fundamental changes to the regulatory system, of which the Zoning Bylaw is only one component. The four models are further described in the appendix.

Model 1: Performance Based Zoning (Development of a new zoning system) This approach would result in a new land use regulatory tool which would control development on the basis of a series of "performance criteria" as opposed to the current "use and regulation" approach. An outline of this approach is included in Enclosure II. Compared to the existing Land Use Bylaw, Performance Based Zoning provides more flexibility as to the use of land and more control over actual impact of that use. It will allow the City to make plans and land use policy and more effectively implement those plans through the regulation and guidance of development. For example, policies related to the mix of family and non family accommodation could be more directly implemented by taking into consideration what has been happening on other sites in the neighbourhood. The current system restricts considerations to the site being applied for.

This approach would not be so restricted. Performance Based Zoning is much more technically complex however, with the implication that the applicant's certainty of use which currently exists will be considerably reduced; that a higher level of administrative review of the impacts of a proposed development will be required; and that new and quantifiable standards for evaluating the impact of development will have to be prepared for all land uses.

Model 2: Modernization of the Existing Zoning Bylaw This approach would strategically review and modernize the existing Land Use Bylaw.

The areas for review have already been identified by planning staff in a document entitled "Towards a New Land Use Bylaw". A summarized version is attached as Enclosure III. This would be the least expensive and simplest approach to creating a new Zoning Bylaw. It would augment the present document's use of traditional zoning with additional performance measures to deal with some emerging issues, especially the

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impacts of some forms of industrial development. It would mirror what was done in Calgary and would be the least controversial. Some minor reforms to the existing regulatory system could be made such as compressing and streamlining the Zoning Bylaw to make it more user friendly.

Model 3: Creation of a New Regulatory System This approach would see the development of an entirely new system which would shift the emphasis from a regulatory approach to one of providing a service. A new Zoning Bylaw would only be one component of the new system and it would consist primarily of Performance Based Zoning. This approach would influence the Planning and Development Department's reorganization under the City '97 program. It also includes recommendations which would see the closer integration of other corporate development, licensing and inspection services in order to create a more "seamless" service. It would emphasize one stop shopping for all elements of civic approval for development projects, from their initiation through to their occupancy. While there are recommendations for making the regulatory system more user friendly and efficient, there are also recommendations which explore means for making the system more effective. For example, should Council's role shift from making development decisions to one of policy making to guide these decisions? Should the public be pre-notified before development permits are granted and provided greater opportunities for input or should the approach be to limit public input to the right of appeal? As always there are tradeoffs which need to be explored within the context of broad political, industry and public discussions.

Enclosure IV elaborates on this proposal for a new regulatory system and Zoning Bylaw.

Model 4: Land Use Control without Zoning This approach, best exemplified by Houston, Texas, does not have an institutionalized form of land use control. Land use control without zoning relies on market forces to dictate the location and separation of land uses. The private sector achieves land use control primarily through private deed restrictions or restrictive covenants. There are some mechanisms for effecting public/municipal control of land use through special ordinances (bylaws) for some land uses, subdivision regulations, and the planning and provision for municipal services and facilities. Houston voters, on three occasions, have narrowly rejected a Zoning Ordinance for the city. Proponents prefer the no zoning approach because it frees them from governmental restrictions that prevent them from maximizing their production. Opponents of this approach point to the decline in the effectiveness of private deed restrictions, the amount of private litigation and lobbying required by communities and the desire to create certainty of future land use, especially among new residents accustomed to traditional zoning. Enclosure V describes this approach and further describes some of the measures and difficulties involved if this model was adopted in Edmonton.

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6. Selection of the Model The four models were evaluated on the basis of the methodology presented in Figure 1 (see page 1). Figure 2 presents the results of this evaluation. Model 3 (Creation of a New Regulatory System) was selected as the Model. Model 3 strikes a reasonable balance between certainty and flexibility, and between private and public rights. It proposes significant and comprehensive improvements to the regulatory system. Finally, its development of a new Zoning Bylaw which primarily consists of Performance Based Zoning expands the use of performance criteria to deal with land use impacts. The Planning and Development Department intends to further refine this selection through a process of civic and public consultation. The Department will provide semi-annual progress reports to City Council, describing the progress of the work and further work to be undertaken. The preparation of a new Zoning Bylaw along with any accompanying changes to the regulatory system will come from this process. The final products may vary from the Zoning Model as a result of the inputs received from the various stakeholders and in particular, City Council. The appendix to this report further describes the four models described in this report.

Figure 2

Evaluation of the Four Models and the Selection of the Model

Low Certainty/High Flexibility •

Model 1

Model 3 (Creation of a New Regulatory System) - Model

Public Rights

Private Rights Model 2 • • Model 4

High Certainty/Low Flexibility

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APPENDIX

Model 1: Performance Based Zoning 1.Definition Performance Based Zoning is a zoning system that regulates the use of land by establishing minimum levels of performance and quantifiable standards which proposed developments must meet. Performance Based Zoning's key departure from standard land use zoning is that its prime concern, or level of analysis, is not use, but rather the carrying capacity of a site and the identification of measures to make activities of varying intensities compatible.

In essence, Performance Based Zoning is built upon the belief that the impacts of one land use upon another are more a function of the intensity/performance of the use rather than the use itself.

2. Background The foundation of Performance Based Zoning can be traced back to the 1950s, when it was proposed that the classification and zoning of industrial uses be based upon their environmental effects on the community rather than on the product being produced.

Industrial nuisances such as smoke, noise, odour, and solid and liquid wastes can be measured scientifically. Furthermore, the numbers so obtained, when expressed as desired levels of performance, provide a rational basis for industrial zoning. Therefore, Performance Based Zoning has the ability to distinguish between industries using different production technologies, yet producing the same product.

The success of Performance Based Zoning in the regulation of industrial uses, and the perceived inadequacies of standard zoning legislation, led a number of U.S. municipalities' to develop and implement holistic Performance Based Zoning ordinances.

3. Fundamentals of Performance Based Zoning In the Performance Based Zoning system, land uses are generally permitted as a matter of right. Thus, theoretically, any use can be located on a particular property, providing it meets the established performance standards. Unlike standard zoning, Performance Based Zoning is not based on the premise that different land uses are inherently incompatible. Performance Based Zoning attempts to identify and quantify the "nuisance" level of different land uses and the impacts they will have on other types of land uses.

'A sample of municipalities that have implemented Performance Based Zoning ordinances: Queen Anne's County, Maryland; Buck County, Pennsylvania; Tallahassee, Florida; Paola, Kansas; Flagstaff, Arizona; Lake County, Illinois; Fort Collins, Colorado; Bath, Michigan; Breckenridge, Colorado; Hardin County, Kentucky and Cocoa Beach, Florida

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Performance Based Zoning legislation continues to use the concept of "zones" or "districts", however, at a much more general level than that employed by standard zoning. The zones are used to separate areas with broadly different functions (rural, urban, agricultural, wilderness) rather than to isolate specific uses (single detached residential, highway commercial, central business, etc.). Within each zone performance standards allow a landowner considerable freedom to develop a property. The standards are based on concepts such as carrying capacity. Flexibility in land use and design is possible due to the large number of performance criteria that are applied to every development.

Firstly, a site must have the capacity, in terms of municipal services and access to roadways of sufficient carrying capacity. Secondly, design standards are used to protect one land use of a certain intensity from the negative impacts of another land use of a greater intensity. The determination of land use intensity is based on four key variables: I. Open Space Ratio (OSR) - the proportion of a site, excluding private lots and roadways, that will remain undeveloped and designated as open space. It is for the benefit of the community as a whole, and serves to protect areas of significant environmental value, provide recreational space and define the character of the community. The OSR enables Performance Based Zoning to protect sensitive natural areas. Also, a minimum open space ratio ensures adequate areas for play and recreation. This measurement is most applicable to situations where large parcels of raw land are proposed to be developed.

2. Impervious Surface Ratio (ISR) - the proportion of a site occupied by surfaces that do not absorb precipitation, including buildings, roads, and other paved areas. Standard zoning uses the concept of building coverage which tends to underestimate the actual amount of site coverage. The ISR has important implications for stormwater runoff, ground water recharge, and related environmental impacts such as erosion and flooding.

3. Density - density factor measures the number of dwelling units per net buildable hectare. It provides a measure of the impact of a development on transportation systems, schools, community facilities and services.

4. Floor Area Ratio (FAR) - compares the total floor area within nonresidential buildings to the total area of the site. FAR is a useful indicator of the impacts of land use and one which provides the flexibility appropriate to the considerable diversity of non-residential uses.

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By applying these four variables in different combinations, the intensity of development can be pegged on an "intensity scale". The impacts of higher intensity may include greater impervious surface coverage, with associated runoff, heat generation, reduced percolation, and open space; increased bulk and height of buildings; increased traffic with associated noise and congestion; signs and exterior lighting visible from neighbouring property; late hours of operation and other nuisances. The range of intensity classes open to a use does not affect whether it can locate on its lot, but only how it can develop on that lot. Performance standards are specified for each intensity class; exceeding any single standard in an intensity class moves a use to the next higher intensity class. In the event that a use class does not appear in the next higher intensity class, it may not exceed any single criteria in the highest intensity class in which it is listed.

A simple example of the application of performance based zoning is represented by the case where a large office complex is proposed to be located in a predominantly low density residential area; approval would be forthcoming if the subject site had access to a roadway of sufficient capacity to carry the anticipated vehicular traffic generated by the development and municipal infrastructure capacity to serve the scale of development proposed. After the issue of capacity is addressed, the next question is how do seemingly disparate land uses be developed so as to minimize nuisance to an acceptable level?

Performance Based Zoning relies upon the "bufferyard" concept, that is, landscaped yards which become larger and more densely landscaped in direct relation to the intensity of the proposed development. The bufferyard provides a visual barrier that blocks out noise, glare of lights, parking areas and other nuisances. Several bufferyard options are available for each pair of land use intensity classes (according to a matrix system).

Bufferyards are always used between adjoining uses of different intensities. In the case of the above example, a large office building adjacent to low density residential uses, the required bufferyard and landscaping would be of a relatively large order, perhaps so large as to make such a development unfeasible on that particular site, due to a high percentage of the site being consumed by the required bufferyard.

4. The Performance Based Zoning Experience The first comprehensive model Performance Based Zoning ordinance proposed that nearly all urban land uses could be accommodated in a "Development District". Use restrictions were abandoned in favour of quantified performance standards, formulated over a ten year period by Performance Based Zoning advocates. Data on vehicular traffic generation rates of all land uses is tabulated on a "number of trips per gross floor area" basis. Additionally, a bufferyard matrix was developed, which provides developers a minimum of four options of variable yard widths and landscaping densities to ameliorate nuisances between adjacent land uses.

The U.S. municipalities that have embraced the concept of performance zoning have been unable, or unwilling, to apply Performance Based Zoning in its purest sense (i.e. the model ordinance). Existing Performance Based Zoning ordinances have tended to be hybrids, using standard zoning elements such as permitted, prohibited and conditional 13

uses, as well as, relatively narrowly defined zones (albeit fewer and broader than the land use zones used by standard zoning legislation).

This incomplete implementation can be attributed to property owners' demand for some degree of certainty, in terms of land uses that may appear down the block, and more importantly, next door. It is a basic economic fact that investment is attracted not only by returns, but also by security and predictability. This underscores the point that a pure Performance Based Zoning system will not likely work; but that components of performance zoning would be useful in any zoning system, along with traditional elements of use etc, to meet objectives of certainty and predictability.

Also, experience has shown that Performance Based Zoning is not suitable for areas of communities developed under standard zoning regulations, as infill developments in established areas are generally unable to meet the performance standards, especially with regard to environmental preservation and provision of bufferyards.

5. Performance Based Zoning - Prospects Performance Based Zoning has several interesting features that make it an attractive system of land use regulation. The concept of pre-established, "quantified" impacts of different land uses, and prescribed measures to ameliorate their externalities, has obvious appeal, as it eliminates seemingly subjective judgement with scientific decisions based on "hard" numerical data. Also, the flexibility of no pre-ordained land uses, as characteristic of standard zoning, permits developers to quickly respond to changing economic, social and demographic conditions without going through time consuming and costly rezoning exercises.

On the flip side, Performance Based Zoning in its purest form poses some difficulties in terms of implementation and application. Most significantly, Performance Based Zoning cannot be applied to the portion of a municipality developed under standard zoning. Thus a municipality looking at adopting Performance Based Zoning will essentially have two zoning systems operating simultaneously: Performance Based Zoning in the newly developing areas and standard zoning in the rest of the municipality.

The establishment and administration of performance standards is a complicated and time consuming proposition. The land use intensity measures of one municipality may not necessarily be acceptable in another jurisdiction. A comprehensive amount of data is required with regard to infrastructure capacity and requirements, traffic generation and site development capacity ratios. Also, the amount of information required from a development applicant (i.e. traffic impact analysis, infrastructure requirements, etc.) may be onerous for small and "one-time" developers, who lack the resources and knowledge base to fulfil such data demands.

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6. Performance Based Zoning - Application to Edmonton In the context of the City of Edmonton, the application of pure Performance Based Zoning legislation would require an amendment to the Municipal Government Act, which requires municipalities to divide themselves into districts with a list a of permitted and discretionary uses. Additionally, substantial time and financial resources would have to be devoted to completely overhauling the City's present land use control system, data accumulation, staff re-training and a public education program to "sell" the benefits of zoning system without prohibited uses. However, there are certain elements of Performance Based Zoning, such as flexible bufferyards and greater concern for environmentally sensitive areas, which merit further consideration for application in any new land use control framework the City adopts.

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Model 2: Modernization of the Existing Zoning Bylaw (Summary of Report Entitled "Towards a New Land Use Bylaw") The report "Towards a New Land Use Bylaw" identifies the strengths and weaknesses of Edmonton's existing Land Use Bylaw and recommends the philosophical direction and form a new Land Use Bylaw should take. These findings are largely based on a series of "Idea Exchange Sessions" held with Planning and Development Department staff who utilize Land Use Bylaw regulations on a daily basis. This review also considers how alternative forms of land use control, gleaned from an extensive literature review, may be applied in the Edmonton context.

1.Alternative Forms of Land Use Control As North American urbanization progressed, the basic land use control provided by conventional zoning bylaws was inadequate to address the new problems and unique situations that were continuously emerging. In an attempt to introduce some flexibility to land use control, several alternative or innovative zoning techniques were devised to complement conventional zoning. The growing complexity of the urban environment has made the reliance on a single zoning method impractical, if not impossible. In fact, Edmonton augments its conventional zoning foundation with several innovative zoning techniques, including contextual zoning, direct control zoning, incentive zoning, overlay zoning, performance based zoning and planned unit development. A summary of these innovative forms of land use control appear in the table on page 5.

Extreme forms of land use control are not desirable in the Edmonton environment. This includes "no zoning" (full flexibility) or "rigid zoning" (pure conventional zoning). As well, the Municipal Government Act (MGA) limits the extent to which a new Land Use Bylaw can be "unconventional". The MGA requires that a land use bylaw divide the municipality into districts with prescribed permitted and discretionary uses. However, the MGA does allow for direct control districts. The Alberta Building Code is restrictive, and in many instances may limit innovation as well.

The general approach of the present Land Use Bylaw, based on conventional zoning but augmented with several innovative zoning techniques remains relevant to the Edmonton context. The Land Use Bylaw does not require a new philosophical approach to inject more flexibility into the system, but a new environment in which the current opportunities are better implemented. A revised Land Use Bylaw must balance the protection that some level of certainty brings, with the opportunities of a truly flexible approach.

2. Edmonton's Emerging Dichotomies The following three strong, and sometimes overlapping, themes emerged from the Idea Exchange Sessions. These dichotomies demonstrate the balance that must be achieved if the new Land Use Bylaw is to effectively serve Edmonton into the new millennium.

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2.1. Inner City/Suburban Dichotomy A significant criticism of Edmonton's built form is that infill development generally does not fit within the context of the existing built environment. A revised Land Use Bylaw should take into account those characteristics that make inner city and suburban areas unique, and incorporate regulations that acknowledge and respect these differences.

Potential solutions to this problem are to formulate new residential and commercial districts that are applicable to select areas of the city, specifically, inner city and suburban areas. Increased flexibility in the regulations within the existing districts could accommodate greater diversity in built form. Finally, overlay districting could be more widely applied to address community aspirations for unique land use regulations. This, in effect, would be a limited and strategic application of contextual based zoning. Such a system could involve development permits based on a point system which would provide clear, objective direction to the Development Officers when considering proposals in communities wishing to retain or enhance their character.

2.2. Use Class/Impacts Dichotomy There are several indications that the standard land use districts, and particularly the method of separating use classes, have failed to accommodate evolving trends.

Revised Land Use Bylaw regulations must place greater emphasis on the impacts of uses and built form in order to reduce the reliance on DC5 districts and overlays, and the need for ad hoc text amendments. Although greater emphasis should be placed on the impacts of uses in each district, purely impact or performance based zoning is not feasible in the Edmonton context. Constraints with regard to resources (staff time and expertise, data requirements, monitoring capabilities) and the often subjective nature of land use control would make purely performance based zoning system unattainable. (See Enclosure I.) Some impacts of land use can be dealt with via Special Provisions, rather than within each standard district. This would clarify regulations for uses which have significant land use impacts, notwithstanding their location. "Finally, use class definitions that have become obsolete or are too narrowly defined and applied must also be updated to reflect current trends.

The standard districts must be broadened, to be based more so on impacts, rather than use. Applying this to commercial areas, for example, could result in a the creation of three commercial districts (i.e. Neighbourhood Business, Corridor Business, Regional Business), down from seven and based upon compatibility with surrounding development. This would result in a more stream-lined Land Use Bylaw as several districts could be deleted. Reworked standard districts must recognize the economic trends leading to an integration of uses, group uses together based upon common requirements and impacts and thus decrease the reliance on DC5 districts and 17

overlays. Future districts must also give greater consideration to built form, as the appearance, scale and style of a development can have significant impacts on, or enhance compatibility with, surrounding land uses.

The Land Use Bylaw has become a tool in the legislation of moral issues and has recently been drawn on to resolve land use issues mandated by superior legislation (i.e. communication towers). This has resulted in an ad hoc approach of addressing evolving land use and social trends via piecemeal Land Use Bylaw text amendments, often involving issues outside the mandate of what a Land Use Bylaw is to do.

2.3. Certainty/Flexibility Dichotomy The development industry desires greater 'flexibility' on one hand, and yet 'certainty' allows the system to work faster. A revised Land Use Bylaw must address the dichotomy between the practical benefits of having more certainty, where the rules are very clear up front and the same for all participants, versus the need to inject enough flexibility to accommodate innovation and reflect changing conditions and needs. Edmonton is often criticized for over-regulating development; however, the problem is not with the philosophical basis of the land use control system, but rather in how it has been applied. Listed below are some interrelated and sometimes conflicting issues which should be addressed in the new Land Use Bylaw. i.

ii.

iii.

iv.

v.

vi.

Lack offlexibility. Standard districts are not providing enough flexibility in terms of development regulations, F.A.R., yard requirements and landscaping and have failed to adapt to changing needs.

Lack of architectural guidelines. Standard districts fall short in providing architectural guidelines or requirements to ensure attractive and compatible developments.

Overuse of variances. Development Officers have the discretion to vary Land Use Bylaw regulations. The intent of the Land Use Bylaw's districts and regulations can be compromised by overly liberal interpretation and variances.

Lack of enforcement. Permit decisions require follow-up to ensure that conditions are being met and to uphold the integrity of the Land Use Bylaw's regulations.

Over-reliance on Development Officers' discretion and interpretation. Many regulations and plan policies rely on "the opinion of the Development Officer" to achieve land use control objectives, yet Development Officers rarely have the insight that would come with participating on a plan preparation exercise.

Regulations require a stronger link between the intent of a policy and the exercise of discretion.

Overuse of the DC5 District. The result of so many flaws in the standard districts is the overuse of the DC5 direct control district. Since 1980, over 450 DC5 Districts have been approved, reflecting the demand for more flexible zoning and the inability for standard districts to accommodate all development aspirations.

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3. Strategic Review and Modernization of the Land Use Bylaw - Application for Edmonton Research into zoning techniques and consultation with Planning and Development Department staff indicates that the underlying philosophy of the current Land Use Bylaw is still appropriate to meet the challenges of land use control in the City of Edmonton.

However, the existing Land Use Bylaw must be strategically reviewed in order to address ongoing economic, social, political and technological trends. It must evolve as the city changes and it must adapt to pressures exerted on it by a changing world. Competing and overlapping dichotomies must be resolved by a new and invigorated Land Use Bylaw that: i. recognizes and respects the characteristics that make suburban and inner city areas unique; places more emphasis on the impacts of uses, built form and aesthetics when formulating land use regulations; and iii. balances the practical need for certainty with the need to inject enough flexibility to accommodate innovation and changing conditions.

There are several components of the current Land Use Bylaw which are still relevant and appropriate, but require modification in order to bring their standards and requirements up to date. The Bylaw also requires a revised, more organized framework which utilizes illustrations and user-friendly language. At the minimum, the following priority areas must be addressed: Major review of standard districts to address and accommodate emerging trends, to reduce reliance on DC5 districts, overlays and ad hoc Land Use Bylaw text amendments, and increase consideration of impacts and built form. Barring a comprehensive review of all the districts, the following priorities are: • A review of the residential districts, particularly to address emerging issues related to inner city infill housing and redevelopment. • A review of the commercial districts, with the objective of putting greater emphasis on impact of uses and recognizing the suburban/inner city dichotomy.

Integration of community aspirations to strengthen the link between community objectives and implementation. There is a demand by affected residents and property owners to receive notice early in the planning process while they can still affect change. iii. Update and revise key components of the Land Use Bylaw, such as direct control districts, overlays, use class definitions, parking standards, sign regulations, special land use provisions and general administrative provisions to improve process efficiencies. iv. Incorporate annexed lands within the standard districts to ensure land development is consistent across the city. v. Strengthen the Development Officer responsibility to provide greater direction in the implementation of policies and community standards.

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vi. Strengthen enforcement and monitoring activities to maintain the integrity of Land Use Bylaw regulations and promote quality development. The City should also investigate the coordination of its regulatory role with those of provincial and federal jurisdictions (e.g. environmental risk of certain home occupations; Province's regulation regarding group homes and day cares, communication towers). vii. Redesign the format and layout to include a narrative on the role of the Land Use Bylaw; use of clearer, friendlier language; illustrations, charts and diagrams that clarify or replace text and convey complex ideas; and a reorganization of the Bylaw so that related components appear consecutively in the document.

Summary of Innovative Zoning Techniques Zoning Technique Contextual Zoning *

Development Control or Direct Control * Express Purpose

Floating Zones Impact Zoning

Incentive Zoning *

Inclusionary Zoning

Land Use Intensity System (LUI)

Definition Zoning regulation that provides for protection and continuation of neighbourhood architectural and cultural characteristics. Key objective is to ensure compatibility with existing development.

Permission to develop is at the discretion of the planning authority, that is, there are no predetermined permitted land uses attached to a property.

The use and form of development that can occur is determined via a process of negotiation.

Zoning system where detailed comprehensive plans are prepared at the neighbourhood level and policy direction is expressly provided for in the land use zones. Essentially, land use plans become the foundation of the zoning.

A zone described in the text of a zoning bylaw, but which is not affixed to any particular location until applied by the planning authority.

System that regulates development on the basis of impacts on the environment, municipal infrastructure and fiscal capacities rather than on use and scale of development. By comparing the available capacities with the estimated demands, impacts of development are identified.

Grants concessions to a developer (i.e. development rights beyond those that are as-of-right in the underlying zone) in return for the funding of, or development of, public amenities (i.e. parks, affordable housing, daycares.)

Requires developments to include certain uses or amenities, or money or land in lieu, in exchange for bonuses such as variances, density or height increases.

Complete land use regulatory system of site development standards.

Using development density as a bench mark. It utilizes mathematical relationships to determine the following elements: mass, bulk, height, recreation space and parking.

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No Zoning

Properties have no predetermined use or siting regulations attached to them. Market forces are relied upon to determine land use, density and development form. (See Enclosure IV for Houston's experience without zoning.)

Overlay Zoning * Application of additional or different land use regulations to the existing zoning of a property, with the purpose of increasing flexibility or imposing additional requirements in order achieve an objective.

Performance Based Zoning Zoning system that allows development to occur in an almost laissez * faire fashion by permitting any uses to be adjoining as long as they are compatible based on performance standard criteria (externalities and off site impacts). (See Enclosure I for more information on Performance Based Zoning.)

Planned Unit Development Flexible approach to land use control where uses and development * standards, as well as the timing and sequencing of the development, can be negotiated within a specified site plan review process.

Point System Developments are evaluated in relation to a standard set of criteria in a check list format, thus they are reviewed on their individual merits.

Approval is contingent upon the proposal achieving some minimum score.

Risk Management Zoning Zoning system intended to regulate the location of industrial uses with the objective of minimizing, to some acceptable level, the potential impacts that an emergency/accident could incur in terms of casualties and property damage. * Utilized by Edmonton's current Land Use Bylaw to augment conventional zoning.

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Model 3: Creation of a New Regulatory System A Land Use Development Occupancy (LUDO) System 1. The Concept The world today is looking for regulatory systems that are seamless, have a rapid response capability, and can grow and adapt to societal trends.

This paper initiates discussion on a new regulatory framework for managing land use, development and occupancy in the City of Edmonton. At its heart, this proposed new regulatory system - Land Use Development Occupancy (LUDO) - has a simple and clear vision, as illustrated in Figure 1. It represents a shift in emphasis from a regulatory approach to one of providing service.

LUDO's seamless quality is largely defined by the vision of a single permit, as illustrated in Figure 1. It would breakdown the present compartmentalization that currently exists within the regulatory environment. There would be a smoother transition between land use, its development and the use of property. Jurisdictional barriers to cooperation and efficient administration would come down as civic staff either expanded their job responsibilities or become functionally integrated, assisted by computer linkages and new management concepts such as "shared services". The customer of planning and development services would benefit from a more streamlined and comprehensive approach where the beginning and end as well as the steps in between are well defined.

A wide range of value added services - community planning, urban design, heritage preservation, environmental planning, development inspection and bylaw enforcement would be more directly available to customers.

LUDO's rapid response capability would result from a number of changes. Firstly, human resources would be more functionally integrated, eliminating overlapping functions and duplication. Secondly, upgraded computer technology would allow for permit tracking, reduced times for obtaining civic and public input, and conversion of permit information for policy research and planning. Finally, LUDO would substitute much of Council's involvement with the development process with new mechanisms for negotiation and appeal. This would reduce the time spent on public hearings and the processing of bylaws.

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Proposed Land Use Development Occupancy (LUDO) System .ro• ovx.m•(' ):0

Land Use • development permit • development permit. (after development appeal) • development permit (after rezoning) • compliance certificate (real property report)

LUDO Permit

Development

Approyat

• building and associated permits (Alberta Building Code) • registration of :,..ubdivision plan (subdivision authority) • registration of subdivision plan (after appeal.)

• seivicing agreement • curb crossing perrnit (commercial development) • road/lane closure • lot grading certificate • boulevard occupancy agreement • development agreement • pedwa.y agreement

raLAND USE DEVELOPMENT OCCUPANCY

ONE LUDO LUDO PERMIT

Occupancy • business and other licenses (occupation, health, safety) • inspections (fire, safe housing) • occupancy permits

Discussion Paper: Land Use Develupment Occupancy (LUDO) System

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2

LUDO's ability to grow and adapt to societal trends represents the policy / regulatory interface. LUDO proposes to rewrite Edmonton's current Land Use Bylaw to regulate development based on its "impact" as well as its ability to meet "performance criteria".Council and the civic administration would redirect much of their energies which are devoted to development review to the compelling policy issues affecting development. Defining the "impact" of development and determining "performance criteria" would provide just possible entrance points for policy making. To cite one example, environmental contamination on public and private lands would benefit from LUDO's more sophisticated approach.

LUDO's seamless regulatory system would merge land use with its development and the use (occupancy) of the property.

2. The Basic Tool Kit What does LUDO look like? What generally are its primary components; how do they work; what are some of their major implications; and are there any options that might be considered?

The following is a broad outline of the basic LUDO tool kit which addresses the previous questions. It is by no means an exhaustive list nor does it identify all of the political and administrative changes which must occur but it does provide a starting point for building this new regulatory system.

Summarizing, the basic LUDO components are: A. A.1 A.2 A.3 A.4

New Documents/Paper Zoning Bylaw Development Officers' Technical Manual LUDO Permit LUDO Policy Reports

B. B.1 B.2 B.3 B.4 B.5

Personnel and Service Changes Front Door Customer Service Development Officers' Job Function Development Coordinators One Appeal Body Inspection and Enforcement Services

C. C.1 C.2 C.3

Process Changes Rezonings Public Influence over Development Review Civic Review

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A.

New Documents/Paper

A.1

Zoning Bylaw

The new Zoning Bylaw would be considerably reduced, perhaps somewhere between five to ten percent of its present size. It would contain the general land use designations such as residential, commercial, industrial and public uses, but many of the zones which presently exist would disappear. in creating an entirely new zoning system. Future land use would be determined according to its impact on surrounding land use and on the community. Performance criteria would be applied to development in order to deal with these impacts of development. A wider range of development classes would allow for greater sifting of development applications into various streams for review. The new Zoning Bylaw would become a simpler document for the customer but its degree of sophistication and technical requirements would grow for the Development Officer (see B.1), requiring augmentation to existing staff resources (see B.2, B.3, B.4) as well as a new technical manual (see A.2).

A.2

Development Officers' Technical Manual

The new Zoning Bylaw would require a supporting document or technical manual.

This manual would assist the Development Officer in determining the development class or which development stream each particular application will go, based on an assessment of its impact. These impacts would be further expanded upon in the manual along with information and other requirements. More importantly, the manual will be the primary repository for the performance criteria, in greater detail, which the proponent of any development must meet. For example, provincial environmental standards for residential and other development would form the basis for the performance criteria, initially mentioned in the Land Use Bylaw but spelled out in much greater detail in the Development Officers' Technical Manual. This manual would be a public document and it would be carried on computer hardware so that revisions and updates could be made quickly. Applicants and neighbours could make use of this manual at the application stage or even during an appeal.

A.3

LUDO Permit

The LUDO permit would replace the permits, licenses and other approvals identified in Figure 1. It would be geocoded or related to a specific geographic location.

Applications can therefore be tracked on a computer and the specific status and progress of an application can be pin pointed. If the customer wants only to identify an appropriate range of land uses or to subdivide land for legal reasons, but is not yet ready to develop or occupy the site, the LUDO permit would still work. This, however, implies that internal mechanisms must be put in place so that, periodically, outdated or obsolete development proposals can be cleaned up. The LUDO permit, as previously discussed, is at the heart of the new regulatory system's drive towards seamlessness and a rapid response capability.

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A.4

LUDO Policy Report

Currently, amendments to the Zoning Bylaw either through rezonings, Council motions and area redevelopment plans or other statutory land use plans provide Council and the administration with the opportunity for policy making. Since the LUDO system will significantly reduce the size of the Zoning Bylaw, as well as, the opportunities to amend it, new mechanisms must be found for Council and civic administration to make policy.

LUDO Policy Reports will provide such an opportunity, supported by a tracking system for development, its impacts on the urban form and community life, and on the development industry's ability to comply with established performance criteria.

Council would meet regularly with the administration to review development activities and to review and set new policy direction through these LUDO Policy Reports.

B.

Personnel and Service Changes

B.1

Front Door Customer Service

Good customer service has become part of the mainstream of current civic practice. No where is this more apparent to the customer than at the customer service counter on the second floor at 10250 - 101 Street N.W. (Planning and Development Department). The LUDO system requires the efficient sorting and allocation of applications to the appropriate review stream. This constitutes a new Front Door Customer Service.

Staff would have to receive training in the overall LUDO system and more specifically, in the new Zoning Bylaw with its greater range of development classes. It is these development classes which are based on a preliminary assessment of impact that will determine the review stream for the customer's application. LUDO' s seamless system requires an assessment of impact associated not only with land use but also with development and occupancy. In order to expedite this application review function, it is anticipated that some supplementary functions, such as the sale of maps and publications, would be relocated.

B.2

Development Officers' Job Function

Changes to the Development Officers' job function go beyond the existing staff of development officers to other staff within the Planning and Development Department, as well as, other civic departments. These changes are intended to bring about greater sharing of the development officers' job function, integration with other regulatory functions such as licensing and increased delegation of decision making authority to frontline staff in a number of civic departments. Probable outcomes of these changes include an increase in the number of development officers, a higher degree of accountability for development decisions, new and expanded job functions, and the opportunity to participate in a wider range of development decisions, from initial land use planning through to subdivision and development control and finally, licensing (occupancy) and bylaw enforcement.

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Major changes to this job function can be categorized as an expansion of functions, a sharing of responsibility under a team approach and finally, perhaps even a transfer of some of the present decision making authority. The technical complexity of the LUDO system, as well as, the need to make it seamless and capable of rapid response will determine the extent to which these major personnel changes are developed.

The Development Officers' job functions could first be expanded in such areas as: • • • • • •

taking in and screening initially, each of the LUDO applications assessing the impact of development, i.e. review of policy, environmental site assessment, social and community impacts, risk management and so on widening the present exercise of discretion in coming to development decisions, particularly when applying new performance criteria undertaking rezonings and direct control activities defending development decisions in a public forum such as at a community meeting or before the Appeal Body applying different municipal legislation, i.e. granting a business license

The second change would see the Development Officer as a member of a team in order to accomplish many of the previously mentioned expanded job functions. Undoubtedly, some planning services presently fall beyond the scope and expertise of the Development Officer. They include, but are not limited to, subdivision control, heritage and architectural advice, environmental planning, urban design, community planning and major land use and development review. The new LUDO system would see a closer integration of working environments and staff resources. This team approach would be accomplished in a variety of ways - electronically by computer, staff rotation or permanent accommodation, management techniques such as internal review procedures and review bodies.

Finally, an option exists to transfer some of the existing decision making authority of the Development Officer to other staff. Indeed, in some other municipal jurisdictions, this already occurs. This could occur at both ends of the LUDO spectrum. For the simplest LUDO permits, clerical staff could grant permits such as for a fence. This already occurs with many compliance certificates, encroachment agreements and one third of development permits. At the other end of the spectrum, major developments would be approved by professional planning and development staff.

B.3

Development Coordinator

The primary function of the Development Coordinator would be to guide the more complex and difficult development proposals through the LUDO system. The Development Coordinator would help to ensure that all information and regulatory requirements are met in a timely fashion.

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The Development Coordinator would be a new position within the LUDO system, although many of its aspects already occur within the Planning and Development Department. Within the Planning Services Branch, for example, planning staff often guide and facilitate various redistricting proposals through the regulatory system.

Similarly, Development Officers within the Development and Inspection Services Branch guide and facilitate applicants through the development permit process to achieve their development goals. Nevertheless, this job function would not only be formalized but also it would empower staff, at the corporate level, to enhance the coordination of development review and to expedite the public and civic review process for major development proposals.

B.4

One Appeal Centre

The Appeal Centre envisioned under the LUDO system would house all of the functions and support systems for appeals appertaining to land use, development control and occupancy (licensing). This involves appeals ranging from subdivisions and major development applications to minor variances for fences to licensing disputes. New mechanisms and procedures would be adopted to streamline and eliminate cross jurisdictional regulation, especially between the new Zoning Bylaw and provincial licensing requirements.

The concept of an Appeal Centre engenders a number of questions. How many appeal bodies should there be? Appeals presently go to the Subdivision Appeal Board, the Community Services Committee and to the courts. What should the composition, scope and powers be of any new appeal body? Finally, what additional opportunities need to be pursued in the regulatory review, such as better coordinating the decisions of the Appeal Centre and bylaw inspection and enforcement services. The creation of a new regulatory system will involve the development of different options to address these questions and will be the subject of both civic and public review.

B.5

Inspection and Enforcement Services

Inspection and enforcement services cover a broad area of responsibilities, including but not limited to the Zoning Bylaw, the Alberta Building Code, the Fire Code and both municipal and provincial licensing requirements. There is an opportunity to redefine, remodel and integrate existing services to a much greater extent. The benefits of closer integration would include better use of staff resources, greater service coordination, and the identification and resolution of service deficiencies. It could be achieved through such mechanisms as the cross training of staff, the team approach, the pooling of staff and technical resources and the application of new (computer) technology. Corporate models exist such as the Safe Housing Committee which successfully brought together several civic and provincial agencies to deal with the problem of substandard and unsafe housing in the inner city.

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C.

Process Changes

C.1

Rezonings

Under the LUDO system, rezonings would occur far less frequently because of the far fewer number of land use zones contained in the new Zoning Bylaw. City Council would make far fewer rezoning decisions. In essence, Council would be delegating some of its decision-making authority on specific development matters to the administration. The LUDO system would, in return, substitute development review afforded by rezonings with regular policy development and review. The LUDO Policy Report, previously described (see A.4) would be part of this basic tool kit which would assist City Council in its new expanded function.

C.2

Public Influence over Development Review

There are two basic directions the public influence over development review could go.

The first direction would redefine the pre-development notification process so that neighbours and communities would be apprised of what was going on before it went on. There would be public meetings in the community around major proposals and neighbours would definitely have the opportunity to influence the decision of the Development Officer. The Development Officer would have a greater responsibility to provide direction in the implementation of policies and community standards. The second direction would focus on retaining as many "as-of-right" situations as possible in the new Zoning Bylaw. The focus of the notification process would be on letting neighbours know what has been approved and what appeal rights exist.

C.3

Civic Review

The LUDO system has several implications for the conduct of the civic review in the development process. Some departmental reorganization, although not major could be envisioned. Licensing and bylaw enforcement are two possible areas of amalgamation with the Planning and Development Department. Another implication is the greater importance that the development review function would attain. This could translate into additional staff and technical resources devoted towards civic review of land use, development and occupancy. Greater delegation of decision making authority to front line staff would also have to occur.

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Model 4: Land Use Control without Zoning Land use control without zoning relies on market forces to dictate the location and separation of land uses. Unlike traditional zoning ordinances or land use bylaws, properties have no predetermined districts or zones and governmental powers over land use is significantly reduced. Proponents of nonzoning believe that the elimination of zoning will allow the real estate market to satisfy the needs and desires of consumers.

The City of Houston, Texas, has never had a zoning ordinance. Nevertheless, Houston's physical appearance and land use pattern resembles other large American cities. 2 This is largely because the City has embraced various other tools to control future growth. These include private deed restrictions or restrictive covenants, subdivision regulations, special ordinances, and planning for major thoroughfares, freeways, parks, and community facilities.

1. The Argument Against Zoning Bernard Siegan, a research fellow in law and economics at the University of Chicago Law School, conducted one of the most comprehensive studies of Houston's form of land use control. His 1968 research includes a review of Houston's experiences without zoning and draws on his 20 year career in real estate law. Siegan notes that local government, through zoning, has exercised ever greater control over land use. He has concluded that zoning is not necessary to maintain property values and is not an aid to "planning".

Siegan suggests that the experts in real estate, builders and developers, should be freed from governmental restrictions that prevent them from maximizing their production.

Briefly, Siegan supports nonzoning because it: • fosters development; and • increases competition and therefore stimulates new and better products and services.

2. City Planning and Land Use Control in Houston, Texas Houston was founded and laid out in 1836 and subject to master plans designed in 1913 and 1929. The City Planning Department and City Planning Commission were created in 1940. Between the 1920s and 1960s, zoning was continually revisited but never embraced. In fact, at two votes, in 1948 and 1962, zoning was soundly defeated by residents. 2 In 1991 Council directed the newly renamed City Planning and Zoning Commission to create a comprehensive plan and zoning ordinance. Council passed the zoning ordinance in September 1993 but made it conditional on voter support.

Ultimately, Houston voters rejected zoning in November 1993 by a margin of 51% to 48%. 3 While Houston, a city of 1.79 million people, has no zoning ordinance, it has adopted some modest land use controls. However, the City refrains from setting specific

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restrictions on the uses that are permitted on any property, an essential component of most land use bylaws. Unless it is subject to an private restrictive covenant limiting its use to single-family dwellings, there are relatively few legal limitations on the use of any given property.

Houston plans for future growth through the following combination of public and private mechanisms: • Major Thoroughfare and Freeway Plan, to ensure adequate circulation.

• Capital Improvements, as a planning tool to coordinate private services and facilities with private developments, and to upgrade older areas.

• Jurisdictional Surveillance, or fringe planning, five miles beyond the City boundary.

• Subdivision Control, which assures good basic layout and provides for building setbacks, minimum lot sizes, site coverage and building lines.

• Private Street Ordinance, to ensure appropriate internal streets for major apartment projects.

• Off-Street Parking Ordinance, to require that residential developments provide adequate off-street parking.

• Special Use Ordinances, to address impacts for special uses (i.e. sexually oriented businesses, abattoirs) and to set location requirements (i.e. liquor dealers, amusement parks, movie theatres).

• Private Deed Restrictions and Civic Clubs, which are based on private enforcement.'

Deed restrictions are widely used in Houston as a means of private land use control.

Deed restrictions cover about two-thirds of the City and have "assisted materially in creating the general land use uniformity so noticeable in the suburban areas."2 In a 1978 paper, Houston's Planning Director at that time, Rosco Jones, describes the deed restriction approach as superior to zoning; it provides a democratic land use system that is more attuned to the changing community. 2 Covenants may even be more restrictive than traditional zoning; some address setbacks, building style, architectural requirements, aesthetics, cost of construction, landscaping and maintenance of the lot and house exterior. Neighbouring properties would have similar restrictions. These controls are intended to maintain neighbourhood character and values and can only be changed upon majority support by property owners. Should a violation take place, neighbours can take an owner to court for resolution. 4 "Planning action has moved forward in Houston without zoning. ... The rapid growth of Houston has permitted rapid transition of areas and given private enterprise the freedom to adapt to change and meet new market demands. The city, by anticipating changes, has been able to adapt streets, utilities and other public facilities and service systems to meet these changes. ... [The private investor has been unhampered by cumbersome zoning requirements." 2

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3. Houston's Experiences without Zoning The nonzoned city is not different in appearance from what it would have been like if it had been zoned. 5 "There certainly are a great many areas of single-family occupancy that look identical to the "idyllic" areas of zoned cities. There are also mixtures of uses available for those wishing to demonstrate the ill effects of zoning. Frequently, however, the same mixture exists in cities that are zoned." 1 The Houston Planning Department assists owners in maintaining the viability of their deed restrictions. Most subdivisions have formed civic organizations to enforce deed restrictions and to promote community goals. However, since more affluent subdivisions have the means to ensure compliance, using fees collected from property owners, there is some inequality with less affluent areas. In fact, in built up portions of the City, poorer areas may be without deed restrictions if they have expired and have not been renewed. When deed restrictions expire, so do essentially all controls over land uses in these areas. In new subdivisions, this is less likely to occur as deed restrictions usually have built in renewal mechanisms.

When deed restrictions expire there is not always economic pressure for other uses; however, there has been pressure in some built up areas of Houston to convert from single family to multiple family and commercial development. Typical examples of uses introduced into single family areas have been home occupations, auto repair shops, grocery stores, duplexes, low rise apartments, trailers and to a lesser extent, industrial uses when industry is already nearby. Economics have dictated that new uses generally occur along high traffic routes, rather than interior streets.

Siegan notes that diverse uses are not always unwelcome by Houston home owners. As subdivisions grow older, differing uses may be less objectionable, especially if homes have not been well maintained. Owners may actually experience an increase in property values if an area is enhanced with new apartment housing. The introduction of a grocery store would be embraced in a low income area where residents don't own cars. However, there have been instances in Houston where pressure from nearby residents have deterred companies wishing to introduce industrial uses. Siegan suggests that the strict separation of uses in traditional single family areas do not in fact appeal to all residents. Indeed, renewed deed restrictions in older areas might actually allow for apartments and townhouses.

Siegan strongly supports Houston's choice to reject zoning and concludes that nonzoning alternatives can be applied in other municipalities based on these findings: • Zoning restricts the supply of some uses and therefore prevents some demands from being met. • Economic forces tend to result in a separation of uses without zoning. • When separation is vital to maximize property values and promote taste, property owners will enter into private agreements to provide protection. Restrictive

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•

covenants can be extended over the long term and are often more restrictive than zoning. If restrictive covenants expire, economic pressures will dictate land use; there may be some demand for multiple family, but most businesses will not locate on interior streets.

Without zoning, municipalities will adopt specific ordinances to alleviate special land use problems.

4. Houston's Failed 1993 Zoning Ordinance Houston's decision in the early 1990s to pursue a zoning ordinance was largely in response to the following circumstances: 1. significant growth and massive projects appeared during the 1970s and 1980s, intruding on adjacent public and private spaces; 2. the wave of new residents familiar with and convinced of the value and certainty of zoning; 3. a movement by homeowners to salvage property values, following the collapse of Houston's real estate market in 1984; and 4. the decline in the effectiveness of private deed restrictions.6 Following significant public consultation, the City drafted a zoning ordinance that was different from any other jurisdiction - "in its basic approach to zoning, its mixture of simplicity and complexity, and its respect for private rather than public decisions about development in urbanizing areas."6 However, despite a three-year campaign by proponents, detractors were effective in convincing Houston voters to reject zoning by 51% to 48%.

Detractors argued that zoning would lead to higher taxes and fewer jobs, and that it would create a costly bureaucracy. Brochures linked zoning to corruption and increases in the cost of housing. Results showed that 7 of 10 voters in poorer neighbourhoods voted against zoning. 3 The proponents also failed to get strong commitment from the business community. " Although zoning failed in 1993, the Houston Planning and Development Department continues to improve their subdivision rules and regulations, extraterritorial jurisdiction, and ordinances to control special uses. City staff provide information and assistance to civic groups trying to enforce their deed restrictions. The Department also provides statistical data and general information to the private sector to aide decision making. 4 5. No Zoning - Application for Edmonton For the City of Edmonton, the elimination of zoning would require an amendment to the Municipal Government Act. The MGA directs every municipality to pass a land use bylaw and divide the municipality into districts with a list of permitted and discretionary uses.

Without zoning, the City would have to embrace alternative land use control mechanisms such as restrictive covenants and special ordinances, similar to the City of Houston. The City would also have to initiate a public education campaign to sell nonzoning to a population that is likely already convinced of the benefits of zoning. Land use control 33

without zoning does not appear to be an acceptable alternative for Edmonton. The tradeoffs required to manage growth without land use districts would result in, at best, the status quo, especially given the degree of transition that would be required by the private sector, the public and the administration.

1 2 3 4

5

6

Bernard H. Siegan, Land Use Without Zoning, Lexington Books, 1972.

Rosco H. Jones, Director of City Planning, City of Houston, Texas, 1978 paper.

"Houston Says No to Zoning", Planning, December 1993.

John Jackson, Administrative Manager, Long Range Planning Division, Planning and Development Department, City of Houston, Phone Interview, February 27, 1998.

Michael Goldberg and Peter Horwood, Zoning: Its Costs and Relevance for the 1980s, The Fraser Institute, 1980.

Douglas R. Porter, "Houston's New-Wave Zoning", Urban Land, March 1993.

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