Overview of Zoning

“Zoning” refers to the use of regulation to control how development occurs in any given municipality. While it has many definitions, one simple one is that “zoning is the creation by law of districts in which regulations differing in different districts prohibit injurious or unsuitable structures and uses of structures or land.”^[1] Indiana Courts have stated that:

Zoning ordinances are enacted for the purpose of promoting the health, safety, morals, and general welfare of a community by regulating the use and development of land. The ultimate purpose of zoning ordinances is to confine certain classes of uses and structures to designated areas.^[2]

The Indiana Code takes a similar view in I.C. § 36-7-4-201^[3], which states:

(b) The purpose of this chapter is to encourage units to improve the health, safety, convenience, and welfare of their citizens and to plan for the future development of their communities to the end:

(1) that highway systems be carefully planned;

(2) that new communities grow only with adequate public way, utility, health, educational, and recreational facilities;

(3) that the needs of agriculture, forestry, industry, and business be recognized in future growth;

(4) that residential areas provide healthful surroundings for family life; and

(5) that the growth of the community is commensurate with and promotive of the efficient and economical use of public funds.

In essence, zoning divides land into broad types – “residential, commercial, business, and industrial”^[4] – and then divides them into sub-zones, with each zone and sub-zone addressing different types of development and use.

Zoning is a complex kettle of fish and could easily be the subject of its own course. Therefore, we will necessarily avoid too much depth and complexity in what follows, while at the same time attempting to cover the important bases.

[1] Williams, Frank B. The Law of City Planning and Zoning, New York: Macmillan, 1922. 204. Print.

[2] Deiss v. Bd. of Zoning Appeals of Boone County, 926 N.E.2d 63, 67 (Ind. App. 2010).

[3] Zoning is such a big topic that the entirety of I.C. § 36-7-4 deals with it.

[4] City of Carmel v. Martin Marietta Materials, Inc., 883 N.E.2d 781, 787 (Ind. 2008).

Zoning takes place mostly at a county level, with certain cities and towns having their own planning bodies. The units charged with enacting and enforcing zoning regulations are called “planning commissions.” In Indiana, there are several types of planning commission, depending on the type and size of government. These are known as “advisory planning commissions,” “area planning commissions,” “metropolitan planning commissions,” and “joint planning commissions.”^[1] While you may encounter any of these in Indiana, the two most important for our purposes are advisory planning commissions and area planning commissions.

The term “advisory planning commission” is a general term referring to planning commissions established by a town, city, or county.^[2] Such commissions are usually referred to as “municipal plan commissions,”^[3] when overseeing planning in incorporated cities or towns, and “county planning commissions,” when exercising power over a county. The term “area planning commission” refers to a county-wide commission that cooperates with one or more municipalities within the county. So, for example, the area planning commission for St. Joseph County, Indiana, states that it serves the:

City of South Bend, unincorporated St. Joseph County and the towns of Lakeville, New Carlisle, North Liberty, Osceola, and Roseland, Indiana. The Commission does not serve the City of Mishawaka nor the towns of Indian Village or Walkerton, which have their own plan commissions.^[4]

Therefore, the City of South Bend Municipal Code^[5] contains the following statement:

[T]he Area Plan Commission of St. Joseph County, Indiana shall be the duly authorized plan commission for the incorporated areas of the City of South Bend pursuant to the Area Planning Law of the Indiana Code, and the Ordinance shall apply to all real property located within the corporate boundaries of the City of South Bend.^[6]

So, confusingly, while the City of South Bend may have its own zoning code, all zoning powers and oversight are exercised by the area plan commission of St. Joseph County.

Zoning commissions are typically composed of a mix of people from the general public who reside within a zone and those with specific interests in zoning. The number of people on the commission depends on the type of commission and the makeup and population of the government in question. While going into each specific variant of commission is too in-depth for this book, the following is an example of makeup from the area planning commission statute contained in Ind. Code. § 36-7-4-207:

(1) Seven (7) representatives from each city having a population of more than one hundred five thousand (105,000).

(2) Six (6) representatives from each city having a population of not less than seventy thousand (70,000) nor more than one hundred five thousand (105,000).

(3) Five (5) representatives from each city having a population of not less than thirty-five thousand (35,000) but less than seventy thousand (70,000).

(4) Four (4) representatives from each city having a population of not less than twenty thousand (20,000) but less than thirty-five thousand (35,000).

(5) Three (3) representatives from each city having a population of not less than ten thousand (10,000) but less than twenty thousand (20,000).

(6) Two (2) representatives from each city having a population of less than ten thousand (10,000).

(7) One (1) representative from each town having a population of more than two thousand one hundred (2,100), and one (1) representative from each town having a population of two thousand one hundred (2,100) or less that had a representative before January 1, 1979.

(8) Such representatives from towns having a population of not more than two thousand one hundred (2,100) as are provided for in section 210 of this chapter.

(9) Six (6) county representatives if the total number of municipal representatives in the county is an odd number, or five (5) county representatives if the total number of municipal representatives is an even number.

To illustrate the complexity into which the membership is detailed, consider the following, which illustrates the makeup of county representatives under (9) above:

(c) AREA. When there are six (6) county representatives, they are as follows:

(1) One (1) member appointed by the county executive from its membership.

(2) One (1) member appointed by the county fiscal body from its membership.

(3) The county superintendent of schools, or if that office does not exist, a representative appointed by the school corporation superintendents within the jurisdiction of the area plan commission.

(4) One (1) of the following appointed by the county executive:

(A) The county agricultural extension educator.

(B) The county surveyor or the county surveyor's designee.

(5) One (1) citizen member who is:

(A) a resident of the unincorporated area of the county; or

(B) a resident of the county who is also an owner of real property located in whole or in part in the unincorporated area of the county;

appointed by the county executive.

(6) One (1) citizen member who is:

(A) a resident of the unincorporated area of the county; or

(B) a resident of the county who is also an owner of real property located in whole or in part in the unincorporated area of the county; appointed by the county fiscal body.^[7]

In addition to these requirements, there are also certain political affiliation limitations, as well as term limits for members, which are usually staggered. Finally, the commissions must have a president and vice-president, and may elect a secretary.^[8]

[1] Ind. Code § 36-7-4-101, et. seq.

[2] Ind. Code § 36-7-1-2.

[3] Ind. Code § 36-7-1-12.

[4] (St. Joseph County, Indiana, 2015)

[5] (The City of South Bend, 2014)

[6] South Bend, Indiana, Municipal Code § 21-01.01(j).

[7] Ind. Code § 36-7-4-208.

[8] Ind. Code §§ 36-7-4-303 – 304.

All the planning overseen by a commission is done according to a comprehensive plan. This is a policy document created by a commission and recommended to the governing body of the government unit for adoption. The comprehensive plan must include at least:

(1) A statement of objectives for the future development of the jurisdiction. (2) A statement of policy for the land use development of the jurisdiction. (3) A statement of policy for the development of public ways, public places, public lands, public structures, and public utilities.^[1]

In addition to these basic requirements, a comprehensive plan may also include a great deal of other information, such as:

(1) Surveys and studies of current conditions and probable future growth within the jurisdiction and adjoining jurisdictions.

(2) Maps, plats, charts, and descriptive material presenting basic information, locations, extent, and character of any of the following:

(A) History, population, and physical site conditions.

(B) Land use, including the height, area, bulk, location, and use of private and public structures and premises.

(C) Population densities.

…

(P) Land utilization, including agriculture, forests, and other uses.

(Q) Conservation of energy, water, soil, and agricultural and mineral resources.

(R) Any other factors that are a part of the physical, economic, or social situation within the jurisdiction.

(3) Reports, maps, charts, and recommendations setting forth plans and policies for the development, redevelopment, improvement, extension, and revision of the subjects and physical situations (set out in subdivision (2) of this section) of the jurisdiction so as to substantially accomplish the purposes of this chapter.

(4) A short and long range development program of public works projects for the purpose of stabilizing industry and employment and for the purpose of eliminating unplanned, unsightly, untimely, and extravagant projects.

(5) A short and long range capital improvements program of governmental expenditures so that the development policies established in the comprehensive plan can be carried out and kept up-to-date for all separate taxing districts within the jurisdiction to assure efficient and economic use of public funds.

(6) A short and long range plan for the location, general design, and assignment of priority for construction of thoroughfares in the jurisdiction for the purpose of providing a system of major public ways that allows effective vehicular movement, encourages effective use of land, and makes economic use of public funds.^[2]

Obviously, a comprehensive plan could range from a few pages to many pages in length.

As you might expect, often comprehensive plans vary with the size of the city and population. For instance, the comprehensive plan for the city of Chicago, IL is over 400 pages long.^[3]

After a comprehensive plan is adopted by a unit, all future planning must be pursued according to the goals set forth in the comprehensive plan. This planning is accomplished by zoning ordinances.

[1] Ind. Code § 36-7-4-502.

[2] Ind. Code § 36-7-4-503.

[3] https://www.cityofchicago.org/city/en/depts/dcd/supp_info/central_area_plandraft.html

People occasionally confuse the comprehensive plan with zoning ordinances. The comprehensive plan is a policy document which outlines the overarching plan for the community, while zoning ordinances implement the plan. Zoning ordinances may not be adopted until a comprehensive plan has been created, and must only be adopted for the purposes of:

(1) securing adequate light, air, convenience of access, and safety from fire, flood, and other danger; (2) lessening or avoiding congestion in public ways;(3) promoting the public health, safety, comfort, morals, convenience, and general welfare; and (4) otherwise accomplishing the purposes of this chapter.^[1]

For accomplishing those ends, in Indiana, a planning commission may do one or more of the following:

(1) Establish one (1) or more districts, which may be for agricultural, commercial, industrial, residential, special, or unrestricted uses and any subdivision or combination of these uses. A district may include geographic areas that are not contiguous. A geographic area may be subject to more than one (1) district.

(2) In each district, regulate how real property is developed, maintained, and used. This regulation may include:

(A) requirements for the area of front, rear, and side yards, courts, other open spaces, and total lot area;

(B) requirements for site conditions, signs, and nonstructural improvements, such as parking lots, ponds, fills, landscaping, and utilities;

…

(I) standards for population density and traffic circulation; and

(J) any other provisions that are necessary to implement the purposes of the zoning ordinance.

(3) Designate zoning districts in areas having special development problems or needs for compatibility in which a plan commission shall:

(A) approve or disapprove development plans under the 1400 series of this chapter; and

(B) ensure that a development plan approved under this subdivision is consistent with the comprehensive plan and the development requirements specified in the zoning ordinance.

(4) Provide for planned unit development through adoption and amendment of zoning ordinances, including PUD district ordinances (as defined in section 1503 of this chapter).

(5) Establish in which districts the subdivision of land may occur.^[2]

Any time a complete zoning ordinance (whether text, maps, or both) is passed, repealed, or amended by the plan commission and governing body, there are certain procedures which must be followed, including notice, public hearing, consideration by the legislative body, passage, and publication.

[1] Ind. Code § 36-7-4-601.

[2] Ind. Code § 36-7-4-601.

The basic determinant of land use in a zoning ordinance is the type of zone, which in Indiana consist of agricultural, commercial, industrial, residential, special, or unrestricted uses, or combinations of these. While these zones are broadly identifiable simply by looking at their name, it is worthwhile considering each briefly in order to get an idea of what is permitted in each. We will consider a few of the St. Joseph County Zoning Ordinance as an example, which divides the zones within the county in St. Joseph County Zoning Ordinance, §154.025, as follows:

(A) For the purposes of accomplishing the objectives set forth in the preamble of the ordinance codified in this Chapter, the unincorporated portions of the County are organized into the following districts:

(1)      A         Agricultural District

(2)      R         Single Family District

(3)      R-2      Residential District

(4)      O/B     Office / Buffer District

(5)      O         Office District

(6)      B          Business District

(7)      C         Commercial District

(8)      L          Light Industrial District

(9)      M         Manufacturing Industrial District

(10)    PUD    Planned Unit Development

(B) The following overlay or special zoning districts are established:

(1)      HP       Historic Preservation District.

(2)      U         University District.

(3)      FP        Floodplain Regulations.

Let’s look at a few of the more typical examples of these zones.

As might be expected, these zones deal with farming and related uses of land. The purpose of the Agricultural Zone is:

[T]o allow Agricultural Uses in accordance with the Comprehensive Plan, to preserve prime agriculture land, to conserve the desirable characteristics of the land, and to protect rural/agricultural areas from the encroachment of scatter urban-type uses and the detrimental economic impacts of urban sprawl. Areas zoned to the A: Agricultural District are those areas being used for agricultural activities, flood plain, natural areas and other rural uses, located beyond the periphery of the incorporated municipalities where intensive urban or suburban uses are not anticipated.^[1]

With that said, there are some 14 primary uses^[2] of that zone, including farms, golf courses, libraries, public parks, religious uses, schools, vet clinics, and an additional 21 special uses,^[3] including adult care facilities, airports, bed and breakfasts, boarding schools, clubs, gun shops and gunsmith shops, material and mineral mining, police stations, and various recreational uses, etc. Many of these uses (and indeed, uses in most zones) are subject to certain development standards. For instance, archery ranges may only be located on a parcel that is no less than ten (10) acres in size. Moreover, like most zoning codes, the “A” zone specifies certain minimum setback requirements, which means the amount of land which must exist between a building and the edge of a lot or road. For instance, a building in the “A” zone in St. Joseph County must be at least 40’ from a state or federal highway.

[1] St. Joseph County Zoning Ordinance, § 154.090.

[2] The main purpose of the district, not requiring zoning permits.

[3] Uses which may exist in a zone, but which require obtaining a permit first.

There are two residential zones in St. Joseph County – “single-family residential” and general “residential.” The purpose of single-family residential (“R”) is as it sounds:

[E]stablished to protect, promote and maintain the development of single family dwellings as well as provide for other limited residential, public and institutional uses that are compatible with residential development located at the periphery of an urban area.^[1]

The broader purpose of the general residential zone (R-2) is:

The R-2 Districts are established to protect, promote and maintain the development of a wide range of housing opportunities ranging from single family dwellings to multifamily complexes as well as provide for other limited residential, public and institutional uses that are compatible with residential development, all in accordance with the comprehensive plan.^[2]

In the single-family zone, there are a variety of uses beyond simple residential, including agricultural, cemeteries, child care, golf courses, libraries, etc. In the R-2 district, primary uses include assisted living facilities, single family and multi-family dwellings, police and fire stations, and religious uses.

[1] St. Joseph County Zoning Ordinance, § 154.105.

[2] St. Joseph County Zoning Ordinance, § 154.120.

The “O: Office District” is intended for use as a transitional district between residential and commercial / industrial districts. Therefore, the maximum size of buildings in the “O” district is limited to 8,000 square feet. Primary uses in this district include offices for professional, business, governmental and quasi-governmental uses, banks and financial institutions, barber and beauty shops, child care centers, funeral homes, medical and dental clinics, photography studios; police or fire stations, and religious uses.^[1]

The “B: Business District” is “established to provide for businesses which provide for the full range of convenience uses necessary to meet the daily needs of residential neighborhoods.^[2] There are more than seventy primary uses in this district, of which a few examples are: antique shops, barber shops, beauty parlors, bookstores, drug stores, dry goods stores, fire stations, grocery stores, funeral homes, haberdasheries^[3], medical and dental clinics, phonograph record and sheet music stores, and shoe stores.

[1] St. Joseph County Zoning Ordinance, § 154.150.

[2] St. Joseph County Zoning Ordinance, § 154.165.

[3] Yes, really. The zoning codes are updated occasionally to include new uses, but older ones still stick around.

The “C: Commercial District” is:

[E]stablished to provide a location for those retail sales and service functions whose operations are typically characterized by: outdoor display or sales of merchandise; major repair of motor vehicles; commercial amusement and recreational activities; or, activities or operations conducted in structures which are not completely enclosed. The types of uses found in the C: Commercial District are often brightly lighted and noisy.^[1]

The “C: Commercial District” permits all 70+ uses of the “B” district, in addition to over 70 of its own, including: auction rooms, battery and tire service stations, bed and breakfasts, boat showrooms, convention halls, feed stores, laboratories, machinery sales, and motor vehicle sales.

[1] St. Joseph County Zoning Ordinance, § 154.180.

The “L: Light Industrial District” is intended to be a transitional zone between less intense districts such as business and commercial and the heavier “M: Manufacturing Industrial District.” As such:

The L: Light Industrial District is established to provide for development of office/warehouse,warehouse/  distribution, wholesale, assembly and manufacturing or processing facilities which are clean, quiet, free of hazardous or objectionable elements such as noise, odor, dust, smoke, or glare. Permitted uses in this district tend to generate heavy traffic, require extensive community facilities, and may require limited amounts of outdoor storage.^[1]

Many of the same uses one finds in the “C: Commercial District” also show up in the “L” district, in addition to others. For example, this district includes bus stations, boat showrooms, fuel sales, greenhouses, exterminating shops, machinery sales, medical and dental clinics, printing, commercial parking lots, radar installations and towers, radio and television studios, trade schools, and weighing stations.

The “M: Manufacturing Industrial District” is similar to the “L” district, but it includes operations which may have large amounts of outdoor operation or storage. The “M” district includes all those uses in “L,” in addition to: “any establishment engaged in production, processing, assembly, disassembly, cleaning, servicing, testing, repair, or storage of materials, goods, or services”^[2] It may also include landfills, recycling processing centers, and trailer sales and rentals.

[1] St. Joseph County Zoning Ordinance, § 154.195.

[2] St. Joseph County Zoning Ordinance, § 154.211.

The term “controlled uses” generally indicates a zone where business that are considered to have “objectionable secondary impacts” will be located.^[1] These businesses will be subject not only to restriction within certain zones, but also not be permitted to locate near single-family homes, parks, schools, etc. Examples of businesses restricted in these ways include adult bookstores, adult motion picture theaters, pawnshops, pool halls, adult cabarets, and tattooing businesses.

[1] St. Joseph County Zoning Ordinance, § 154.475.

As noted above, there are “special uses” in each zone where, by obtaining a permit, one can establish a use that is not generally allowed. However, there are other exceptions to zoning requirements. These fall under the categories of nonconforming uses, variances and special exceptions, and conditional uses.

Development on land prior to the zoning ordinance that does not comply in some way with the zoning ordinance is generally called a “nonconforming use.” These may include lots too small or too large, buildings or structures of incorrect size or location on property, and uses of land, signs, or some combination of these that do not fit the zoning code. The zoning ordinance makes an exception for these uses but restricts them. Therefore, the nonconforming building, structures, uses, and signs may continue, but may not be enlarged, expanded, or extended; and, if the nonconformity is one which may be abandoned (such as a business not normally permitted in a residential area), it may not be changed into another business without a new exception or permit, and may not be restarted, once abandoned. So, for instance:

If any legally established nonconforming use of land, other than single family residential is:

(A) Abandoned for any period of time; or,

(B) Discontinued for more than six (6) consecutive months (except when a probate related court order or government action impedes access to the premises), any subsequent use of such land shall conform to the provisions of this Chapter.^[1]

[1] St. Joseph County Zoning Ordinance, § 154.051.

One of the major differences between a nonconforming use and variances and special exceptions (a/k/a “special uses”) is that the latter two are sought after the zoning ordinance is passed. First, to define each of these new terms, a:

[V]ariance is granted by a zoning authority to afford relief from the strict enforcement of a zoning ordinance, and permits a use of the property in question which the ordinance otherwise forbids.[1]

while a special exception is:

[A] prohibited use that involves a deviation from legislated zoning classification—is a permitted use within the zoning classification if certain criteria are satisfied.[2]

Both of these exceptions require requests to be made to the board of zoning appeals which oversees zoning enforcement in the area in which the property is located.

A variance request is generally presented to the Board of Zoning Appeals,^[3] which must make a written determination based upon appropriate findings of fact that:

(A) The approval will not be injurious to the public health, safety, morals and general welfare of the community;

(B) The use and value of the area adjacent to the property included in the variance will not be affected in a substantially adverse manner; and,

(C) The strict application of the terms of this chapter would result in practical difficulties in the use of the property.

The question of a special exception requires much more input and output from the board of zoning appeals. To illustrate, here is part of the statute from St. Joseph County dealing with the question:

(A)   Statement of purpose.  Certain land uses, while they may be generally appropriate in certain districts and under certain circumstances, may have characteristics and locational impacts which, if inappropriately located, may have a detrimental effect upon other land uses within the district and St. Joseph County. It is therefore recognized that these land uses should be regulated in order to preserve property values, as well as promote the public health, safety, comfort, community moral standards, convenience and general welfare of St. Joseph County.

(B)   Uses permitted by special use.  Only those uses identified in each district as uses permitted by special use shall be permitted by special use in each district.

(C)   Grant of a special use.

(1)   The Board of Zoning Appeals is hereby authorized to hear and make a favorable recommendation, unfavorable recommendation or no recommendation to the County Council on a petition for a special use.[4]

[1] Hamilton Cty. Plan Comm'n v. Nieten, 876 N.E.2d 355, 359 (Ind. Ct. App. 2007)

[2] Steuben Cty. v. Fam. Dev., Ltd., 753 N.E.2d 693, 701 (Ind. Ct. App. 2001)

[3] St. Joseph County Zoning Ordinance, § 154.562.

[4] St. Joseph County Zoning Ordinance, § 154.563.

Conditional uses are defined as:

A use which, by its nature and potential impact upon adjacent property, a substantial portion of the entire county or the county as a whole, requires review and approval by the Board of Zoning Appeals, or a use which is an activity, service or facility traditionally provided by local government, but which may be provided by private business or industry through a contractual or franchise agreement with local government.^[1]

These uses must go through a special process with the Board of Zoning Appeals, namely:

(A) The Board of Zoning Appeals shall have the power to approve conditional uses, with or without conditions or commitments, if the Board of Zoning Appeals determines that:

(1) The public convenience and welfare will be substantially served;

(2) The nature, location, size and site layout of the conditional use will be compatible with the immediate area;

(3) Adequate water, sanitary, ingress/egress, drainage and other necessary facilities have been or area being provided to assure safe and sanitary conditions in the vicinity of the request;

(4) The proposed conditional use does not conflict with the Comprehensive Plan or any other plan duly adopted by St. Joseph County; and

(5) The proposed use will not be unduly detrimental to the surrounding area.

(B) As part of its approval of a conditional use, the Board of Zoning Appeals may impose reasonable conditions regarding the location, site design, and other features of the proposed building, structure, use or site development as are reasonably related to the purposes of this chapter.

[1] St. Joseph County Zoning Ordinance, § 154.635.