LAND USE U P D AT E Zoning for Mixed-Use Development Mixed-use development combines retail, office, and residential use and is an element of contemporary planning. It provides a good range of housing choices that increase affordability and equity and mitigate environmental problems by reducing motor vehicle use. It also forms part of a strategy for sustainable development and good urban form with the objectives of attaining economic vitality, social equity, and environmental quality. Mixed-use is a significant form of land development that upends conventional zoning. This Update discusses the obstacles that conventional zoning creates for mixed-use development and how it can be changed to eliminate zoning problems. A wide array of zoning alternatives is available, which adapt existing zoning strategies, but there is limited understanding of how they function and their advantages and disadvantages. The Zoning Challenge Zoning, as originally conceived, did not allow mixed-use development. Its purpose was to separate land uses that might harm each other into different zoning districts. Zoning ordinances implement this purpose under a model Standard State Zoning Enabling Act, published by the US Department of Commerce in 1926, which most states adopted. The Standard Act delegates zoning authority to local governments. It authorizes them to divide municipalities into zoning districts to “carry out the purposes of this act” and regulate land use within such districts. The Act does not provide Land Use Update Editor: Daniel R. Mandelker, Stamper Professor of Law Emeritus, Washington University School of Law, St. Louis, Missouri.
statutory direction for creating zoning districts nor for the types of land uses that can be included. Standard practice is to create separate districts for residential, commercial, and industrial uses, an approach that does not allow mixed-use development, which an early US Supreme Court case upheld. Village of Euclid v. Ambler Realty Co., 272 U.S. 365 (1926). This zoning practice is based on an implicit land-use pyramid with residential use at the top of the pyramid as the most desirable land use, followed by commercial and industrial uses as less desirable. Noncumulative zoning is another common zoning practice not required by the Standard Act that limits each zoning district to one use and does not allow different uses to mix in the same zoning district. Cumulative zoning is an alternative that allows mixed-use by permitting more than one use in a zoning district. Residential uses, for example, are allowed in a district zoned for commercial uses. Cumulative zoning can allow mixeduse development, but it is a clumsy fix because it does not control the type of mixed-use development that can be built. The Standard Act also includes a statutory uniformity clause that could prevent the mixing of uses within zoning districts. This clause provides that “[a]ll such regulations shall be uniform for each class or kind of buildings throughout each district,” but it has not proved troublesome. Most courts have adopted a reasonableness exception, which validates mixed-use zoning notwithstanding the uniformity clause when the mix of uses is reasonable. Zoning Issues Mixed-use development raises several zoning issues. One issue is that local governments must consider how the
market will respond to a mixed-use zoning ordinance. The ordinance can permit mixed-use development, but it will be built only if the market responds to what the ordinance permits. Gaps and vacancies in a development would occur, for example, if the space zoned for retail use is not completed because market demand is not there. Zoning for mixed-use development should be preceded by a detailed market study so that it can be written to meet market demand. A zoning ordinance can authorize mixed-use development through “byright” zoning that permits mixed-use as a matter of right or through zoning that requires the approval of mixed-use development in a discretionary review process. By-right zoning provides opportunities for mixed-use development without going through discretionary review, which provides certainty for developers and avoids the problems that can occur in a discretionary review process, such as higher costs and delays. The difficulty is that byright zoning can be inflexible and concede too much control over development mix and character to developers. Managing Design Design is the catalyst that brings planned mixed-use development to life. Managing design requires design controls that can shape development character. They can be adopted independently or included in the zoning ordinance. Design standards are one alternative. They are mandatory, objective, and quantitative, similar to site development and density requirements in zoning ordinances. Design standards can include fixed rules for design characteristics, such as building form and mass, but may limit design opportunities if they are too inflexible.
Published in Probate & Property, Volume 38, No 1 © 2024 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
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