Exclusion by zoning referendum

How the tyranny of a few can block
the redevelopment of older suburbs

The following remarks were made by Stuart Meck, FAICP, at the Cleveland City Club on October 2, 2002. Meck is principal investigator in the American Planning Association's Chicago Research Department for its Growing Smart project, a multiyear effort to draft the next generation of model planning and zoning legislation for the U.S. He has 30 years of experience in planning, much of it in Ohio. A Cleveland native, Meck is coauthor, with Professor Kenneth Pearlman, of the treatise, Ohio Planning and Zoning Law, 1998 Edition (Eagan, Minn.: West Group, 1998).

As a native Clevelander, I am honored to be a part of this discussion today on the new face of the Northeast Ohio region here at the City Club, which is one of the most important speaking venues there is.

I regret to say that this will not be a sunny and optimistic talk about the great sustainable future that lies ahead if only we would cooperate regionally and act as sensitive stewards of the lands of the Western Reserve. Instead, Id like to critically review the role that zoning has historically played in the development of Northeast Ohio, particularly the use of mandatory zoning referendums, which were sustained in a 1976 U.S. Supreme Court decision, City of Eastlake v. Forest City Enterprises.

Specifically, I am going to focus on the dark side of local government in this part of the state, and I am going to point out some problems that the mandatory zoning referendums pose for municipalities, especially mature suburbs, as they try to reinvent themselves and compete for development with other local governments in the region and in Ohio.

In Cincinnati, where the modern city planning movement in the U.S. had its origins in the 1920s, zoning was used as one device to shape the metropolitan area and to help a new reform government do a better job of governing.

In contrast, the impetus for zoning in Northeast Ohio was exclusionkeeping out people that we didnt like, who lived in types of residences we didnt care for, or who worshiped in a manner that made us uncomfortable.

Well before the village of Euclid adopted a zoning ordinance that was to be the subject of the 1926 landmark U.S. Supreme Court decision, Euclid v Ambler Realty, which upheld the constitutionality of zoning, Cleveland suburbs were adopting zoning ordinances that were clearly about exclusion, not rational and public-spirited guidance of urban development.

The first reported zoning decision in Ohio in 1919 was from the City of East Cleveland. It involved that citys efforts to keep out apartment houses, which were apparently creeping across the Cleveland corporate limits. In the 1920s, there were similar decisions involving the cities of Lakewood and Youngstown that involved attempts to keep out multifamily residences. In the case of Youngstown, however, the Ohio Supreme Court in a 1925 opinion found the citys approach so unbelievableYoungstown had argued that apartments were, by themselves, nuisances that it found the regulation to be an unconstitutional taking of property.

Zoning out religions

The Cleveland area is the only part of the state where its suburbs actually attempted to use zoning to keep out religious groups, and still do, as evidenced by the unpleasant fracas over the recent effort, ultimately unsuccessful, by residents to exclude orthodox Jewish religious facilities in the City of Beachwood from a vacant tract of land on Green Road.

In 1927, the then-Village of University Heights, which had adopted zoning the same year, attempted to bar the Jewish Orphans Home, which came to be known as Bellefair, from locating there. The orphanage wisely retained the famed Cleveland attorney Newton D. Baker to represent it. The villages rationaleI am not making this upwas that too many Jewish children attending the Cleveland Heights and University Heights school system would be hurtful to the community and that the orphanage, because it would be exempt from property taxes, would not pay its own way. Fortunately, the U.S. District Court hearing the case in 1927 thought that argument was bunk and found the ordinance unconstitutional and outside the scope of the police power.

In the early 1950s the then-Village of Beachwood tried something similar. It refused a special permit for a reform Jewish synagogue on Fairmont Boulevard on the theory that because only 20 some members of the 500-member congregation lived in Beachwood, it would be a better idea if the temple were built somewhere else. In a scathing 1953 decision, the Court of Appeals for Cuyahoga County didnt have any difficulty overturning Beachwoods refusal as an abuse of discretion. As a result, what is now known as Fairmont Temple was constructed.

Not long thereafter, in 1956, the City of South Euclid, my hometown, tried to prevent a synagogue, Young Israel, from locating on Cedar Road, a major thoroughfare, for a variety of dubious reasons, chiefly traffic congestion. The city suggested that perhaps it would be more appropriate for the synagogue to be located on the opposite side of Cedar Road, in University Heights, where traffic congestion presumably would not be quite as severe. After skeptically reviewing the claim of traffic congestion, the Cuyahoga County Court of Appeals invalidated the citys rejection of the synagogue.

Zoning by referendum

Fast forward to the early 1970s, when a number of Cleveland area municipalities adopted amendments to their charters that contained mandatory referendum provisions for all zoning map and text changes. Some of these applied only to multifamily development. A referendum is a mechanism that requires a special vote of the electorate in order to allow an ordinance adopted by the legislative body to go into effect.

Normally, a referendum is activated only when a group of citizens circulate a petition to place the measure on the ballot for voter ratification. Once a sufficient number of signatures is obtainedwhich is an indicator of the public sentiment of the issues importancethen the voters of a community can decide whether to endorse the legislative bodys decision in a special election. This is, for example, the procedure for townships in Ohio, for example, which are controlled by state statutes in matters of zoning referendums.

These new charter provisions departed from state statutes. They required that all zoning map and text amendments be subject to referendums, no matter how insignificant. They were enacted in a flurry of activity that was clearly directed at federally subsidized affordable housing that was being constructed in suburban areasa way of making such housing difficult, if not impossible, to construct. And, of course, this meant that no one knew who ultimately was making these decisions, because they were protected by the anonymity of the ballot box.

Eastlake voters approved a supramajority referendum requirement in their charter: under it, a zoning change had to obtain a 55 percent voter approvalnot the usual 51 percentin order to become effective, after having gone through both the planning commission and city council.

In a suit brought by Forest City Enterprises, the Ohio Supreme Court initially struck down the Eastlake charter provision as unconstitutional. The Ohio Supreme Court wasnt fooled by the intent of charter provision. One of them, Justice Leonard Stern, wrote a concurring opinion joined by three other justices, including Chief Justice William ONeill:

Zoning provisions such as that in Eastlakes charter have a single motive, and that is to exclude, to build walls against the ills, poverty, racial strife, and the people themselves, of our urban areas...In the suburbs surrounding the city of Cleveland, the requirement of mandatory referendums for approval of zoning changes has been adopted by over a dozen communities; some of these communities have provisions which specifically apply to any zoning change to permit multi-family or low-income housing. The inevitable effect of such provisions is to perpetuate the defacto divisions in our society between black and white, rich and poor.

Justice Stern concluded: I can perceive no proper public purpose which would justify the burdensome nature of the Eastlake charter provision, or would suggest that it represents planning for the communitys needs rather than simple resistance to change and the exclusion of persons of low and moderate income.

Unfortunately, the U.S. Supreme Court thought differently and reversed the Ohio Supreme Court. The high court reasoned that because zoning changes in Ohio are considered legislative or policy-making in nature and, since ultimately, the legislative power resides in the people, municipal voters have the right to reserve to themselves a final say on zoning changes. Now I should add that the Eastlake decision only applies in those states where state statutes or state constitutions allow voters to make these choices, or where a zoning change is considered to be legislative in nature. Oregon is an example of a state where zoning changes cannot be subject to referendums.

Some votes count twice

Today, more than a dozen Cleveland area municipalities have mandatory zoning referendum provisions. Some have introduced a new wrinkle. Not only does a zoning change have to pass on a citywide basis, but it also has to pass in each ward of the city where the change is applicable to property in the ward.

Sounds great, huh? Give the people of the city and the ward the final signoff on the zoning change, after the city council and planning commission have deliberated. Raw democracy in action. Unfettered populism.

But think about this for a moment. The voters of a single ward where an amendment to the text of zoning district regulations is proposed can veto the proposed change, say, to allow needed day-care centers by conditional use or to relieve mistakenly-calculated parking requirements for churches or to permit an assisted housing project for the elderly in a certain zoning district.

Under such a provision, votes are really counted twice: once in a citywide election; and a second time in a ward election, with the ward election canceling out the citywide election if a handful of electors doesnt agree, even when a measure passes by an overwhelming majority. It is like awarding a council member elected from a single ward the ability to nullify the votes of all other council members. Who would support that?

Fortunately, the citizens of Rocky River didnt. They understood the Catch-22 in this scenario. In fact, Rocky River voters have defeated such a charter amendment twice over the past several years. Last year the voters of Shaker Heights also defeated a mandatory referendum requirement for zoning changes.

Subverting the planning process

Why are such provisions a bad idea, even though the U.S. Supreme Court says they are constitutional, at least in Ohio.

Referendum provisions like these undercut the ability of local legislative bodies and planning commissions to negotiate with developers on the details of a project. A zoning text or map change is only one of a number of complex approvals that projects may need from a city. There may also be variances, conditional uses, subdivision, and site plan and design reviewto name a few. All of these approvals constitute the citys collective decision. If a council and planning commission dont really have the final say, why should the developer bother at all to haggle with them over the details concerning the quality of development?

This leverage is particularly critical for mature suburbs, where developable land is scarce, and new development must be carefully scrutinized to ensure that it fits into the surrounding area while benefiting the broader community.

There is, as several of the Ohio Supreme Courts justices recognized, a serious social equity dimension to this. As I said, mandatory zoning referendums began as a way of keeping out affordable housingno question about thatand are retained in part, to fulfill that purpose. What a sad and mean-spirited abuse of municipal home-rule authority this is.

Finally, at least when a city council votes on a zoning change, you know who is individually accountable, and why. In a zoning referendum, you cant stand before the people you are trying to influence and look them straight in the eye.

Its not like a New England town meeting. You cant effectively make your case, pro or con, because you dont know who is deciding it. Thats unfair and wrong. Small business owners and homeowners who need relief from the zoning ordinances application suffer because even minor changes to the zoning map and text require costly, full-blown publicity campaigns, with direct mail and newspaper advertisements.

Further, as I said, a referendum decision, ward-based or not, that narrowly defeats a proposed expansion of a large or small business is cloaked with the anonymity of the ballot box. When the frustrated business decides to pull up stakes and leave for greener pastures in the townships you cant determine who is to blame.

As the First Suburbs Consortium begins to formulate an action agenda for its members and as the local media pundits and good government groups begin to ponder why mature suburbs are at a disadvantage when it comes to reinventing themselves, I hope they will take aim at mandatory zoning referendums in this part of the state. They are a worthy target.

Contact Stuart Meck at .

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Copyright 2002-2003

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In the suburbs surrounding the city of Cleveland, the requirement of mandatory referendums for approval of zoning changes has been adopted by over a dozen communities; some of these communities have provisions which specifically apply to any zoning change to permit multi-family or low-income housing. The inevitable effect of such provisions is to perpetuate the defacto divisions in our society between black and white, rich and poor.

Referendum provisions like these undercut the ability of local legislative bodies and planning commissions to negotiate with developers on the details of a project. A zoning text or map change is only one of a number of complex approvals that projects may need from a city. There may also be variances, conditional uses, subdivision, and site plan and design reviewto name a few. All of these approvals constitute the citys collective decision. If a council and planning commission dont really have the final say, why should the developer bother at all to haggle with them over the details concerning the quality of development?