Equal Protection Under Zoning

In the past week or so you have probably heard me mention the term “Equal Protection” when it comes to zoning.  The key consideration under zoning is that similarly situated properties should be treated similarly.  If they are in the same district, then they should have the same rights.

Let’s illustrate this in a simple manner.  Say we have two 40,000 sf lots, perfectly square with 200 feet on a side.  Let’s also establish that the entire lot is comprised of upland soils.  Essentially, under Dennis Zoning, both lots have a right to be used for the exact same home. In this case, we have a 15% lot coverage which allows each house to have a 6,000 sf footprint.  We also allow 2 1/2 story homes, 35 feet tall.  Both lots are entitled to homes of this size.  This is what “equal protection” is all about when it comes to zoning.  We cannot discriminate against one of these zoning compliant properties and say that “you sir, cannot make use of your zoning allowed building rights because your neighbor’s home is much smaller.” This is, quite simply, not a function of zoning where lots meet all of our zoning requirements.

Historic districts, which have a different function than zoning, might be able to shape and modify what gets built based upon their neighbors.  Similarly, when we have non-conforming situations, the Board of Appeals is charged with making a determination as to whether a project is “not substantially more detrimental,” but even this determination does not direct there be consistency between building sizes.

Zoning allows us to set the standard, essentially the “box” within which a structure can be built, then we must stand aside. In several of our zoning districts in recent years we have set design standards to be met during site development.  These standards still establish the “box.” If a project fits within the box, it complies and has a right to be built.  However, the “box” cannot be different between two similarly situated properties.

That all being said, I have suggested on a couple of occasions in the past that we should explore the idea of adopting, as part of the Zoning By-law, “pattern books.” These “pattern books” would replace some portions of our existing zoning’s reliance on traditional setback, lot coverage, story and building height restrictions (which create the box) and would establish a building set based upon prevalent building types within the zoning district.  It is almost placing a historic district level of design control into zoning. Of course, even this creates the “box,” and once the property owner chooses from the menu building A, B or C, there is little flexibility on the town’s part in the decision making process under zoning.

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