‘Legalizing’ historic complexity is a silver lining to zoning reform

Too often, the problematic story of urban zoning in American cities goes unexamined. By now, many people have learned about racial covenants and redlining, two ways that racist practices served as a foundation for real-estate and mortgage policy in the mid-20th century. But the roots of zoning are deeper than that, and the recent passage of the Minneapolis 2040 Comprehensive Plan has thrown a fresh spotlight on policies like single-family zoning and parking minimums.

The wave of zoning changes sweeping U.S. cities has an added benefit. It’ll allow cities and property owners to save hundreds of hours of staff time because historic buildings will no longer be restricted by the code. These new zoning changes offer relief to people who own a whole category of historic properties that have been marginalized by city’s 20th-century codes. Most descriptions of the Minneapolis 2040 reforms focus on how new rules might catalyze new buildings in the single-family zoned neighborhoods, but equally important is the fact that the new rules will “legalize” and accommodate so-called nonconforming uses, the hundreds of existing historic buildings that predated the code in the first place.

In St. Paul, the first zoning code dates to 1922; Minneapolis’ code is not much later, in 1924. Both early codes were part of the first wave of land-use zoning controls that swept the country before a decisive U.S. Supreme Court ruling affirmed the constitutionality of municipal zoning.

Though these first codes were usually justified on the basis of keeping industry away from residential neighborhoods, in reality they were often used to inscribe upper-middle-class housing tastes into the legal framework of cities. That meant reducing the number of apartments and duplexes while encouraging larger single-family homes, seen as more acceptable by many of the city leaders at the time.

Well, after almost a hundred years of this kind of restrictive zoning, that’s beginning to change. For example, in St. Paul, planners are looking at the city’s historic Frogtown neighborhood north of University Avenue as a test case for zoning changes. Planners want to change the area’s single-family zoning to make the code better fit the area’s historic buildings.

“Nonconforming uses are so common in Frogtown because a lot of it developed before we even had the zoning code,” explained Tony Johnson, a St. Paul city planner. “As we’ve done zoning studies, over the years we’ve created more and more nonconforming uses.”

In many older neighborhoods of Minneapolis and St. Paul, these codes were put in place after the areas had been developed. That meant that with each wave of more restrictive zoning placed on the neighborhood, more and more of the older buildings became “nonconforming.”

“The first zoning code was still pretty flexible in reference to land uses,” explained Johnson. “We only had two or three residential zoning districts, that’s it. Then in 1975, we adopted our modern zoning code, and as we adopted more zoning districts in the ’90s, we decided to rezone a big swath of Frogtown to R4. That’s where we created a ton of nonconforming uses in what we defined as our urban neighborhood.”

These days, St. Paul has 10 different residential zoning districts, each offering different rules. This includes the R4 (one-family) zoning district that can be found throughout much of Frogtown. Each separate category has separate rules for things like building height, setbacks, parking, and other small details of housing, and four of the districts restrict homes to only one family.

“In the urban neighborhoods, there are still many two-family homes,” Johnson said. “Those are the missing-middle housing types, especially in the older parts of the city, our inner-ring neighborhoods outside of the downtown.”

As a result, when you compare the zoning map to the land-use map in most of the city’s pre-1950 neighborhoods, all sorts of exceptions immediately jump out. These are all classified as “non-conforming land uses” and in the day-to-day practices of city planning departments, zoning administration, and planning commissions, dealing with these uses can be a big part of the workload.

By contrast, more modern (and historic) “form-based” zoning approaches, like the new Minneapolis 2040 rules, focus more on the size, shape, and look of buildings, rather how they are used. The hope is that less restrictive rules will remove many currently nonconforming structures from the books, having the added benefit of freeing up lots of staff time to address other civic problems.

“Minneapolis 2040 moves us further in the direction of form-based regulation, and de-emphasizing the focus on land uses to some degree. So it’s not out of the question now to become little bit more flexible with certain commercial uses along corridors and commercial nodes,” explained Jason Wittenberg, the manager of code development for Minneapolis.

How nonconforming uses work

Nonconforming uses are a problem because they introduce a series of regulatory hurdles to many of these already-existing buildings. If a home or business is “legally nonconforming,” keeping it remains acceptable under city rules, unless a property owner wants to make significant expansions or remodeling changes. In that case, they have to get special permission from the city, a process that takes a lot of time for both planning staff and the applicant.

A bigger problem emerges for nonconforming structures when they sit vacant for a year or more, as sometimes happens in neighborhoods like Frogtown. In that case, St. Paul property owners have to go through a rigorous process called the “reestablishment of a nonconforming use,” gathering signatures from the majority of their neighbors. Here, too, this process takes countless hours for city staff and the applicants, and sometimes proves impossible.

“Frogtown is a majority renter neighborhood,” said Tony Johnson. “Only property owners can sign a petition, [so] if you’re next to a bunch of other rental housing, it might be difficult to find who actually owns it. As a result, a lot of people struggle to fulfill the petition requirement in Frogtown. I had one lady who took a whole year to get the petition [because] she has a bunch of absentee landlords next to her.”

Johnson is excited about the prospect of rezoning large areas of Frogtown to the city’s little-used T1 (mixed-use traditional neighborhood) category, which would make “conforming” the neighborhood’s century-old existing duplexes and triplexes. Because Johnson is concerned about displacement, he likes the zoning category because it would allow existing affordable housing to stay, while controling the size and scale of any future buildings that would be constructed.

“We just have to be honest,” said Johnson. “If we rezone to less restrictive zoning, there’s a risk of displacement. It makes development easier; you could see people trying to assemble parcels to do a little bit larger development. One the things that’s nice about T1 is that the economics of it make it difficult.”

Johnson is hopeful that other tools like accessory dwelling units, land trusts, and tax incentives to maintain naturally occurring affordable housing will help offset displacement that might stem from zoning reform.

Non-conforming gas stations?

In Minneapolis, too, the zoning changes that are called for under the new comprehensive plan will reduce the need for nonconforming uses, while at the same time create new ones.

“The comp plan calls for us to eliminate street parking requirements,” explained Jason Wittenberg. “[Because] much of city was built prior to modern off-street parking, many of the historic buildings are nonconforming” as to off-street parking.

For anyone with a streetcar-era commercial building, the new code will finally allow for some breathing room when it comes to making changes to the structure. On the other hand, Minneapolis’ 2040 plan places brand new restrictions on other types of buildings, such as gas stations or drive-thrus.

“The exception is that Minneapolis 2040 is bit more strict when it comes to certain automobile-oriented uses,” said Wittenberg. “We’re working on amendments to completely prohibit establishment of new drive-thru facilities, and every drive thru will become a nonconforming use if that is adopted. A similar policy applies to gas stations.”

This is the eternal dance of municipal zoning codes, which try to balance between theoretical ideals and the far messier world of on-the-ground buildings. At least with the current proposals, when it comes to the century-old apartments and duplexes in Frogtown, and thousands of similar buildings in Minneapolis, they might finally be accommodated by the city’s rules.

The silver lining for both property owners and staffers is that the new rules will free up time they previously spent regulating nonconforming uses to work on other projects. For St. Paul’s Tony Johnson that might be a mixed blessing: Without so many nonconforming buildings to worry about, he’ll have more time to work on long-proposed changes to the city’s parking requirements.