IS IT TIME TO UPDATE OUR ZONING ORDINANCE?
by
Charles Eckenstahler, AICP and Craig Hullinger, AICP
INTRODUCTION
Is it time to update our zoning ordinance? Almost every elected official at some time will be faced with this question. Prompting the need for changes to the code may be expressed by the planning staff, members of the Plan Commission or Zoning Board of Appeals, other elected or appointed officials, developers, or concerned citizens.
How does an elected official know when it is time to update the zoning ordinance? Illinois law does not specify when a community should update their zoning ordinance. Therefore, the decision to update the zoning ordinance is made by the Plan Commission in conjunction with their legislative body.
Some communities embed an artificial time trigger into the ordinance or other planning document that requires the Plan Commission and/or Zoning Board of Appeals to review and amend the ordnance at a specific time period. More often than not, this trigger is this forgotten or ignored.
This article proposes a three-part test that gauges the need to update the zoning ordinance. It can be used to identify whether it is time to take action to complete a serious review of the zoning ordinance.
THREE COMPONENTS OF ZONING
Daily administration of the zoning ordinance functionally falls into three duties:
Staff Administration - handing out applications, helping applicants in completing the application, review of applications, conformance decision making, referral of applications matters to the Plan Commission or Zoning Board of Appeals, scheduling of Plan Commission and Zoning Board of Appeals actions, and issuance of documentary paperwork.
Plan Commission - consideration of applications for map and language rezoning actions and issuance of special land use permits, as specified in the ordinance including special land uses, planned unit development approvals and approval of plats/site plans.
Zoning Board of Appeals — Issuance of variances (or special land use permission, if applicable), interpretation of the administrative actions or decisions of the zoning administrator and interpretation of ordinance language.
To decide when the ordinance is “broken” and in need of an update, an inventory of actions taken in each category and an assessment of what “fixes” are required. This assessment should address the zoning process from distribution of an application through issuance of final documents to the applicant.
A ZONING VALIDITY TEST
Below is a sample test instrument that can be used to help determine if it is time for an update. We recommend the test be given to members of Plan Commission, Zoning Board of Appeals, administrative staff and elected officials. The tabulated results will reflect a consensus score and show whether it is truly time to update the ordinance.
ZONING ORDINANCE VALIDITY SURVEY
Please place a checkmark to indicate the answer that most closely indicates your answers to the following questions.
1. How often is staff required to help applicants’ fill-out our standard application(s)?
❑ Never ❑ Sometimes ❑ Often ❑ Frequently ❑ Very Frequently SCORE ☐
2. How often does staff refer an applicant’s request to the Plan Commission or Zoning Board of Appeals?
❑ Never ❑ Sometimes ❑ Often ❑ Frequently ❑ Very Frequently SCORE ☐
3. How often is staff required to seek an interpretation of the ordinance to clarify a definition or ordinance language
provision?
❑ Never ❑ Sometimes ❑ Often ❑ Frequently ❑ Very Frequently SCORE ☐
4. Of the total number of zoning matters considered last year, what percentage were referred to the Zoning Board of Appeals to obtain a yard dimension variance?
❑ 0% ❑ Less than 25% ❑ 25% to 49% ❑ 50% to 75% ❑ More than 75% SCORE ☐
5. Of the total number of zoning matters considered last year, what percentage required the issuance of a special land
use permit?
❑ 0% ❑ Less than 25% ❑ 25% to 49% ❑ 50% to 75% ❑ More than 75% SCORE ☐
6. Of the total number of zoning matters considered last year, what percentage requested zoning map changes?
❑ 0% ❑ Less than 25% ❑ 25% to 49% ❑ 50% to 75% ❑ More than 75% SCORE ☐
7. Of the total number of zoning matters considered last year, what percentage requested language changes?
❑ 0% ❑ Less than 25% ❑ 25% to 49% ❑ 50% to 75% ❑ More than 75% SCORE ☐
8. In the past five years, has an applicant challenged a decision in court?
❑ Yes ❑ No SCORE ☐
9. In the past year, has legal counsel suggested a review be conducted?
❑ Yes ❑ No SCORE ☐
10. Please indicate how many time during the past five years a text change ordinance has been enacted?
❑ None ❑ Less than five times ❑ 5 to 10 times ❑ 11 to 25 times ❑ More than 25 times SCORE ☐
TABULATING RESULTS
For questions one through three give the following scores for each answer; a 1 for never, a 2 for sometimes, a 3 for often, a four for frequently and a 5 for very frequently. For questions five through seven give the following scores for each answer; a 1 for 0%, a 2 for less than 25%, a 3 for 25% to 49%, a 4 for 50% to 75% and a 5 for more than 75%.
For questions 8 and 9 give the following scores; a 5 for yes and a 1 for no. For the last questions, question s 10, give a 1 for none, a 2 for less than five times, a 3 for 5 to 10 times, a 4 for 11 to 25 times and 5 for more than 25 times.
In our opinion a community should consider updating a zoning ordinance when the total score exceeds 25 points and the following trends have been identified using the results of the test:
∙ when administrative staff needs to seek interpretations of zoning ordinance language “frequently,”
∙ when more than 25% of the applications require rezoning or special land use permission,
∙ when more than 25%of the actions require issuance of a dimensional variance, and
∙ when more than 50% of the applicants require staff assistance to complete an application.
WHAT TO DO AND WHEN
If your community tests positive, it is time to discuss an update of the ordinance. Remember, the test serves as a “quick indicator” identifying whether it is time to consider an update. This test should trigger a more in-depth analysis, before expenditure of time and funds for an update of the zoning ordinance is authorized.
If you test positive, we recommend that staff study the matter more fully and begin identification of specific problem areas. Assistance of your legal counsel is advisable at this time, since they may also have identified specific issues to be address as part of the update process.
We advise seeking outside planning consultant assistance to complete an impartial review and offer recommendations for consideration in the updating process, even if you intend to complete the update process with “in house” personnel. An outside planning consultant can draw upon working experience from a wide range of clients to identify current and future zoning issues that should be addressed as part of the update. The outside consultant also lends credibility to the process, and can absorb some of the blame sure to accrue if you make your ordinance more stringent.
PREPARING FOR THE UPDATE
A complete “overhaul” of a zoning ordinance is a time consuming and costly venture. A community is best served when it includes extensive public input. Active participation from the plan commission and zoning boards of appeals is also important. This reduces the preparation time and assures community support during the public hearing and adopting phase.
CONCLUSION
Updating the zoning ordinance is difficult, but a community should keep its code current. Using the three-part test can help you determine if your code requires an update.
About the Authors
Chuck Eckenstahler, AICP, is the owner of Public Consulting Team, a Benton Harbor, Michigan planning consulting firm engaged by the Villages of Beecher, Sauk Village and Homewood to serve as their consulting planner. He holds two Masters’ Degrees, one from Governors State University and the other form the University of Notre Dame. He is an active writer, having more than 100 articles published on various economic development, land use planning and real estate development topics. He can be contacted at 219-879-1012, or E-mail at pctecken@netnitco.net.
Craig Harlan Hullinger, AICP, is the President of Planning Development Services. He has served as a Village Manager and a County Director of Land Use and Planning supervising planning, zoning, engineering, and building functions. He is currently working with the Villages of Minooka, Mokena, Tinley Park, Munster, IN, the Eastern Will County Regional Council, and as an expert witness. Craig has a BA Degree in Public Administration and a Master’s Degree in Environmental Planning. He can be contacted at 708/ 532- 8991 or E-mail Craig@Hullinger.com
For more information on Chuck or Craig visit our web page at http://www.Craig.Hullinger.com.