Goodbye to Single-Family Zoning?

 Berkeley California made news within the last week or so and announcing that it is planning to phase out zoning districts which allow only single-family residences. It appears as though they would simply amend the zoning regulations to allow other types of housing in those districts, but the possibility of eliminating single-family residential zoning can seem pretty fantastical. See a local news item here.

Several other jurisdictions across the country have also analysis similar efforts. Minneapolis culminated a multiyear effort to accomplish the same objective in the last year or two. Take a look here.  Other cities are considering similar efforts.

It is interesting to consider these efforts in the context of Nashville and other Tennessee cities. While I certainly don't expect that Nashville or for that matter, any of the other large cities here in Tennessee would consider eliminating single-family residential zoning, viewed in a historical context, there is an interesting twist. When I started practicing law in Nashville in 1979, and I clerked while I was in law school for the Metro legal department in 1978, there was no single-family zoning in the city. The least intensive zoning districts for residential (as opposed to agricultural) purposes, R40, allow both single-family and two-family dwellings on lots which had to be 40,000 square feet or larger. In fact, all of the zoning, R20, R15, R10 and so forth, allowed duplexes. 

I asked one of the planners who worked at the Metro Planning Commission at the time, Bob Pasley, why it was that these zoning districts which in other cities would have been single-family only, also allowed duplex residences. Bob wasn't quite sure, but indicated that it was a historical anomaly that had simply carried through from the 1920s when zoning first started in Nashville.

Beginning in the early 80s, of movement towards what is now known as RS40 (and so on) began, so that duplexes could no longer be constructed in single-family residential areas. So, in an interesting way, the original zoning districts in Nashville did not permit single-family zoning but also allowed duplex residences; it wasn't until some 60 years after zoning began here, that the push for single-family only zoning districts began. Now the conversion is virtually complete. Most of the areas in town where you would envision single-family zoning have been changed to that type of designation.

It's generally agreed by most planners that single-family zoning contributes to urban sprawl, and of course, in the Berkeley instance, questions concerning racial inequality have added to the push to eliminate such zoning. Nevertheless, it will probably be a long time before we see it here in Tennessee in any of the large cities. But it is interesting that zoning here in Nashville started off by allowing duplex residences in all or virtually all residential zoning districts. 

Granting Variances for Subdivisions

 An amendment to the Tennessee Regional Planning Enabling Statutes was passed by the General Assembly in 2018, authorizing, without any explanation or definition, a regional planning commission to grant variances for subdivision applications. Tenn. Code. Ann. § 13-3-402(d). The language of the amendment is very simple although it may raise more questions than it answers:

A regional planning commission may grant variances to subdivision regulations, if such variances are adopted at a public meeting of the commission.

There are no standards provided as to when variances might be appropriately granted; the only requirement appears to be that the variances must be approved at a public meeting, and since virtually all meetings of regional planning commissions are open to the public, that element should be easy to overcome.

Are these variances supposed to be the same as the variances which a zoning board is empowered to grant? See Tenn. Code. Ann. § 13-7-109(3). No, because the variances which the zoning board may grant are to alleviate difficulties caused by the enforcement of zoning regulations, not subdivision regulations.

But do the same standards apply? In order to obtain a zoning variance, the applicant must show that the property is exceptionally narrow, shallow, or shaped, or subject to exceptional topographic conditions or other extraordinary and exceptional situations or conditions. Are those requirements also applicable in the case of variances from subdivision regulations?

It is impossible to tell. Perhaps the Planning Commission is supposed to adopt its own standards by which to judge whether a variance is appropriate. That would allow all kinds of different types of variances to be granted by different planning commissions across the state.

I should mention that most Planning Commissions have over the last 20 years or so been granting variances to the subdivision regulations in any event. I assume that the statute was passed because somewhere in Tennessee a case was appealed and the local court may have concluded that the planning commission did not have the power to grant a variance since it was not enabled by state statute. I am sympathetic to that argument; from my perspective, planning commissions don't have any independent power which is not vested by a statute adopted by the General Assembly. That has not however stopped planning commissions from granting variances to the subdivision regulations.

On the other hand, since the Planning Commissions pretty much adopt their own subdivision regulations, the members of the commissions would be in the best position to judge how those regulations should be administered and enforced, and if they feel that a variance is appropriate, perhaps that's not too much of a stretch.

I always think back to the Hamilton Bank versus Williamson County Planning Commission case where the US Supreme Court at least seemed to imply that the planning commission itself could grant variances to their subdivision regulations and that one of the reasons that the case was not ripe for constitutional consideration was the fact that no variance had been applied for. But since planning commissions in Tennessee back then did not have any power to grant variances, at least not enabled by state statute, the Supreme Court's decision in that regard seemed a little amiss.

In any event, this amendment is interesting to consider, and also to consider that a similar amendment was not passed regarding municipal planning commissions. Why not? Since the General Assembly saw fit to enable variances for regional planning commissions but not for municipal planning commissions, does that imply that municipal planning commissions do not have the power to grant such variances? It's hard to know. Certainly we should expect that drafting these statutory provisions would be held to a higher standard; if a variance is proposed for regional planning commission, wouldn't it make sense to check to see if the same provision would be appropriate in the context of municipal planning commissions?

Frankly, from my standpoint, it's not clear to me that planning commissions of any type should be permitted to grant variances. But assuming that regional planning commissions are given the power, then surely municipal corporations should have been enabled to do so at the same time.