Performance Zoning: What Is It And How Does It Work?
BATTLECALL GUEST EXPERT: Robert J. Abalos, Esq., InvestingInLand.com
Performance zoning is a theoretical alternative to classic land use planning. Traditional zoning plans divide up an area into districts or specific land parcels and regulates what uses and activities are permitted in each of the divisions. The distinctions are usually black-and-white, as in some activity is allowed or some use is forbidden but the focus is almost entirely on how each district, division, or parcel of land is used.
Performance zoning can be thought of as being gray on purpose. Instead of regulating land use, this method regulates the intensity of activity in a specific district or on a parcel of land and measures the impact this activity has on the surrounding districts, areas, or land parcels. In other words, performance zoning does not ban certain uses of land, only certain negative impacts from activity performed on land.
At first glance, performance zoning may seem unworkable due to its high subjectivity but there are distinct advantages to such a land use program. There is much more flexibility for developers and municipalities to efficiently use the land available since a range of uses are tolerated as long as the impact of those permitted uses does not detrimentally impact the community or surrounding land parcels. Since all the traditional zoning permits, variances, appeals, and rezonings are made unnecessary under a performance zoning plan, communities and developers can concentrate more on the impact of land uses rather than whether or how land should be used at all. This flexibility is a great benefit to protecting historic or natural sites since the primary issue is the impact on them from development rather than trying to micromanage away negative effects from future growth by permitting or denying certain uses for adjoining or neighboring land parcels.
However, the advantage of performance zoning is also its major problem. The subjectivity and flexibility which regulates impact rather than land use also means that developers and communities must enact programs and regulations which control future impacts of development rather than current uses of land. It is relatively simple for a municipality to ban a certain land use on a parcel but much more complicated to regulate not just the current but future impacts of allowable uses for a parcel. The result under such performance zoning scenarios are often very cumbersome or complicated rules, mathematical formulas, or a set of trigger factors ("If X happens, then Z must occur.") that require constant oversight, reporting, and adjustment. The calculations themselves are always open to public review and community comments and legal challenges often occur over arcane measures of land use impacts and obscure mathematical computations and statistics.
Performance zoning allows for greater land use flexibility, easier and more efficient development, and a more cooperative spirit between community activists, developers, and government officials. But most communities experimenting with performance zoning have concluded that a pure performance model is unworkable and combine the best elements of performance zoning with traditional zoning. Their goal is to maximize development flexibility and land use efficiency but also minimize the often intricate and obsessive land use oversight that regulating land activities and the subsequent impacts from that performance entails.
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