Zoning issue stymies infill
- Published: December 2, 2010
The denial of a density variance last month by the Board of Zoning Appeals, or BZA, is motivating some Village officials to reconsider the criteria the board uses to grant variances and to review the overall effectiveness of the Village’s zoning code in achieving the community’s stated goals of increased density and more infill development.
“We have explicit contradictions between the comprehensive plan and the current zoning code,” said Village planner Ed Amrhein. “We need a complete re-write of the code or things like this will keep coming up.”
Fostering new development through infill and greater density was suggested in both the draft comprehensive plan prepared by the Planning Commission and the recent Village/Township visioning report accepted by Village Council.
At an upcoming Planning Commission meeting Amrhein will propose an immediate amendment to the criteria used by the BZA in granting area variances, which, according to a 2009 e-mail from Village solicitor John Chambers, may not be in compliance with Ohio law. And an update of the zoning code is included as a line item in Council’s 2011 draft budget.
“If we do want to encourage things like higher density and infill, then we need a zoning code that’s in keeping with those priorities — right now it’s not,” said Village Council’s Planning Commission representative Lori Askeland. “Developments that happen now would be more on a suburban sprawl basis and not a walkable-community basis.”
At a Nov. 17 public hearing, the BZA denied by a vote of 3–1 a variance requested by Benjamin Booso, who wanted to build three more homes around his existing home at 118 and 120 Marshall Street. The plan did not meet the zoning code’s minimum lot area requirement for the area zoned residence B, which is 6,000 square feet per dwelling unit when there are multiple units per parcel. Instead, the lot area for each dwelling unit in Booso’s plan was 4,687 square feet.
In making their decision, the BZA members used guidelines in the zoning code designed to discourage the granting of variances, according to Amrhein. The guidelines discourage variances because they require the applicant to demonstrate a hardship imposed by the code, rather than allowing the board to determine whether or not the overall plan is reasonable, he said. In 2008, the Ohio Supreme Court decided that this unnecessary hardship standard in zoning codes should be replaced with one in which the applicant only has to establish a practical difficulty with the code and that no single factor should automatically disqualify applicants.
“Many zoning codes that contained language similar to those in Yellow Springs contained more rigid and different kinds of criteria,” Chambers said. “As a result [of the court decision] our restrictions contain some items that are not appropriate.”
One BZA member voted against Booso’s project in order to press the issue of the need for a zoning code change.
“As much as I would be supportive of the project, I’m hoping the vote ‘no’ will force the Planning Commission to look at how things are zoned,” said BZA member Joseph Giardullo. He said he believes an overall plan for infill and density should be developed by the Planning Commission, rather than through piecemeal decisions made by the BZA.
“The landowner shouldn’t have to come to the BZA for these types of appeals as the zoning code should be very clear, especially regarding the issue of infill,” Giardullo said.
Booso’s plan was for three detached single-family units on two re-platted lots, which he hoped would provide affordable homes for rent or purchase.
“The point of the project was not just to inject some affordable housing into the village as a whole, but also to develop and improve that property and do something a little unique in this particular neighborhood,” Booso said. One small cottage was to be built behind his existing home, another next to his home and the third behind the cottage next to his home. Booso said he hoped to build the structures to be as energy-efficient as possible.
A shared driveway would lead to the rear buildings, with on- and off-street parking for the parcels at the front of the property. The parking situation concerned BZA board member Kingsley Perry, who voted against the project. Perry said he worried that fire trucks would not be able to access the back buildings from the shared drive and that on-street parking would have created congestion on Marshall Street, which is already narrow.
Booso said that if the village wants increased density, it will have to accept some increase in congestion.
“With an increase in density there might be some companion congestion, but I don’t think we’re talking about Fairborn or Beavercreek — it’s just a few more houses,” he said.
Booso said he may appeal the BZA’s decision to Council, which can only evaluate the BZA’s procedure — not the plan itself — and require the BZA to review the proposal again. Or Booso may submit a new plan that does not need a variance. One possible option would be to change the rear buildings from single-story one- or two-bedroom efficiencies to carriage houses above garages, according to project architect Ted Donnell. However, that may increase the construction costs by an estimated $25,000 and therefore reduce the affordability of the units, he said.
Both the BZA and Village officials have known since March 2009 that the criteria being used to evaluate variances may not be in compliance with Ohio law. It was then that Chambers, the Village solicitor, sent an e-mail to Amrhein, which was shared with the BZA. Since then the BZA has used the criteria to direct its discussion rather than adhering to it strictly, according to Giardullo.
“The BZA has adopted a ‘make work’ approach to be more flexible in applying [the criteria] and at every opportunity has urged that Council address the issue,” said BZA board member Ellis Jacobs, the only member who voted in favor of granting the variance. Other BZA members are Becky Campbell and Donnell, who recused himself from the vote due to his involvement in the project.
Amrhein will be proposing an amendment to the Village’s zoning code at the Planning Commission meeting on Dec. 13 that would adopt the Ohio Supreme Court’s recommended criteria for granting area variances as specified in its 2008 decision.
The new criteria are more flexible, as applicants no longer have to meet all seven criteria to be granted a variance, and focuses on how the project would impact the overall character of the neighborhood, according to Jacobs, a lawyer. Jacobs said Booso’s application satisfied this new criteria, which is why he voted in favor of granting the variance.
But a complete re-write of the zoning code may also be required to allow for the type of dense, infill development the community supports to avoid sprawl development and provide for more affordable housing units, according to Steve Conn, a neighbor of Booso’s who spoke in support of the project at the BZA hearing.
“The zoning code has been broken for a long time and it seems to me therefore a decision like this reaffirms that the zoning code has to be re-written,” said Conn, adding that the project would have increased the property tax going to the schools and may have helped address the village’s lack of affordable housing, declining population and decreased socioeconomic diversity.
“Land use planning is the thing that Council can control,” said Conn, a professor of urban history at Ohio State University. “They can’t create jobs, they can’t set a quota for diversity, but they can do land use planning. And different land use planning will encourage different kinds of outcomes.”
In the Village’s proposed 2010 budget, $75,000 is earmarked from the general fund to hire a consultant to review the existing zoning code, recommend changes to Council and provide a new code for consideration.
Whereas the current zoning code, which has been in place since at least 1956 and includes revisions from 1981 to 2005, promotes the separation of uses and discourages density, modern thinking on zoning focuses on how communities want their code to work for them. This “performance-based” approach could address some of the contradictions between community goals and the code, Amrhein said.
But the single biggest code change to allow for more density is reducing the minimum lot area per dwelling, allowing multiple units on parcels, according to Amrhein. It was this criteria that Booso’s project didn’t meet, resulting in the need for a variance.
“If the village doesn’t want to increase density that’s fine. But let’s not pretend that we do want to do it,” Booso said.