Zoning Creates Regulated Devleopment

April 28, 2008
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In a typical project, virtually every aspect of a rezoning and development will be regulated under local zoning. For example, land division and condominiums, while beyond this article’s scope, will be covered by the zoning ordinance, setting forth standards and procedures for approval. Use and density, dimensional standards, open space, and the protection of wetlands and groundwater are similarly dealt with in most zoning ordinances and will define what kind of development is feasible on any particular parcel of land.

In most municipalities, two documents — the Zoning Ordinance and Master Land Use Plan — govern present and future land use. Review of these documents should answer the following questions:

  • What is the current zoning under the ordinance?

  • What is the future land use envisioned in the master plan?

  • What are the standards and procedures for rezoning of a particular parcel to a particular future use?

If the property is currently zoned agricultural, in addition to farming it may also allow low-density residential use. The master plan needs to be consulted to determine what future use is envisioned for the property — either a denser residential use or a commercial use, and maybe a combination of both. Once the appropriateness of the rezoning under the master plan is determined, the ordinance will provide what standards need to be met to justify the rezoning at the current time. Municipalities look to the adequacy of roads and utilities, population growth in the area, impact on schools, environmental issues, and whether public infrastructure such as water and sewer is required and adequate for the projected use.

The costs and benefits of water supply and disposal will often dictate what kind of development can be proposed. A zoning ordinance may require public water and sewer for multifamily residential, commercial and industrial development. The source of the water will also affect insurance premiums; water for fire hydrants and sprinkling systems can reduce fire insurance rates for property making the project more appealing to developers and tenants.

In cases where public water and sewer is not available, developers may explore the creation of a private utility that would be owned and operated by the owners of the development. This option is costly, however, and often there is local governmental and citizen resistance to private systems that can lead to delays and disappointments for developers.

With respect to the rezoning of the property for a variety of uses, a developer could bring multiple applications to rezone portions of the property to different uses, or he could make one application for a Planned Unit Development (PUD). Under Michigan law, a PUD includes “cluster zoning” and is used to “encourage innovation in land use and variety in design, layout and type of structures constructed, achieve economy and efficiency in the use of land, natural resources, energy, and the provision of public services and utilities, encourage useful open space …” Under a PUD application, the rezoning of the property to one or more uses and the site plan for the development are all taken up by the municipality at the same time. In large developments, PUD approval may also occur in phases, which ties in nicely with the phased approach to a condominium development.

The existence of wetlands may encourage the use of “clustering,” which increases density in one portion of the project while leaving open space in another. The open space can be parks, woodlands and fields, and may include protected wetlands. Under some ordinances, the developer is rewarded with additional or bonus building units if he provides a cluster development.

The design of streets within the development and the number of access points to arterial roads will be an issue dealt with in the site plan review. Developers should be aware that the municipality’s emergency services department will weigh in on street layout. Areas within the development served by a single access road (e.g. dead-end streets and cul-de-sacs) are of great concern to officials responsible for getting fire and ambulance vehicles to and from an emergency. A single blocked street can be a nightmare for both the property owner and the emergency service provider.

Limiting the number of access points to arterial roads will also be given attention by the municipality. Two access points will be required to meet the concerns of emergency services, but highway safety officials will frown on a plethora of driveways coming out of the development.

A meeting with the municipality’s planning department can educate the developer as to the traffic and access issues as well as the other issues that need to be solved for the development of the property. CQX


Mark Sevald is an attorney with Warner Norcross & Judd who practices in the areas of real estate and commercial finance. He also is chairman of the Thornapple Township Planning Commission and vice chairman of the township’s Zoning Board of Appeals.

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