Equivalencies and Land Use Policy

In my decades working on land use regulation development, I have often been struck by how similar uses are treated differently.  I believe this happens because people get hung up on terminology or narrow definitions.  This has been driven largely by the institution of Euclidean Zoning where uses are narrowly categorized and segregated. I believe a better way to make land use decisions is to look at uses more broadly and group them by equivalencies. 

What are Equivalencies?

Uses that are functionally the same are considered equivalent.  That is to say the essential elements of the uses are the same. This is true even if the form or appearance are completely different.  In other words, land uses decisions should be made on how something is used and not on a narrow classification system or how it looks.

Example

Consider the following scenarios:

Scenario 1.  Person X has just moved to a single family home on a quiet residential street with a cul-de-sac. There are 10 children aged 1-10.  In order to support  themselves, X receives funding from outside sources (government, charities etc.).  She uses some of the funding to hire assistants to help with the children, cooking and cleaning.

Scenario 2.  Person Y has just moved to a single family home on a quiet residential street with a cul-de-sac. There are 10 children aged 1-10. Y has a job and hires a baby sitter, a cook and a cleaner to help take care of the children.

Scenario 3.  Person Z has just moved to a single family home on a quiet residential street with a cul-de-sac. Z runs a daycare for 10 children aged 1-10. Z receives money from the children's parents and hires assistants to care for the children, cook and clean.

Are the uses different? I would suggest to you that they are not.  In each case, money is exchanged, children are cared for and staff is hired. From an equivalency perspective, they are the same.  However, in many communities, scenario's 1 and 2 would be permitted, but scenario 3; if permitted at all, it would require special permission, because it would be considered to be a business use operating in a residential district.

This type of over classification happens all the time, mostly due to perceived differences. 

How to Make Good Rules

There are many ways to avoid the trap of over classification of a use.  Using the following techniques will help policy makers identify uses that are essentially the same and treat them as such.

 

What to do:

1. Look at the issue from the 30,000 foot level rather than down in the weeds.  It's easy to get so wrapped up in minutia that you miss the big picture.
2. Determine the essential elements of uses.  Find out what makes a use unique as well as determine what it has in common with other uses.
3. Use scientific research and standards.There is an enormous amount of information available to policy makers to assist them in making good decisions and build public confidence in the process and the law.  Hire experts in the field if you need to.
4. If you can't find useful research, use the "Duck Test". If it looks like a duck, swims like a duck, and quacks like a duck, then it probably is a duck.
5. Understand the laws governing the use. Review and understand the relevant statutes and case law. Some uses are mandated by law to be treated the same as others, even if there are some differences.  For instance in Virginia group homes are required to be treated as single family residences.

What not to do:

1. Don't substitute public opinion for facts. Just because a use is unpopular doesn't mean that it's not equivalent.  
2. Don't "borrow" (a.k.a. steal) regulations from other communities. Just because a law was passed, doesn't mean it is correct. 
3. Don't let lawyers do all the writing and editing.  Their role should be limited to determining legality and conformance with constitutional rights, not in developing policy.  (Note:  I am not advocating that non-lawyers practice law nor should this or anything I write be considered legal advice.)

Image Source: Bytes Daily, and Then New Yorker Collection 2004 Leo Cullum form cartoonbank.com