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ZONING. Zoning in greater Cleveland developed quickly between 1920 and the present, paralleling a similar pattern in other parts of the U.S. Several significant zoning cases have emerged from the Cleveland area, including the landmark case that established its constitutionality. Early land planning and development in Greater Cleveland were unconstrained by zoning or other restrictions. The earliest plan for Cleveland was a simple grid design around a town square on the New England model. The 10-acre PUBLIC SQUARE was bisected by 2 wide, straight streets, one running north and south and one running east and west. Using these as axes, a large tract was described by 4 additional streets, which bounded 4 large oblongs along which regular building lots were laid out. These arrangements, surveyed in 1796 by Augustus Porter, became the framework around which the future city was to grow and, to a large extent, still lives. The early design neglected the magnificent lakeside location, but it was neat and orderly, and it facilitated speculative land sales, a compelling motive of land planning and development then as now. The use of land and buildings was controlled only by the doctrine of common-law nuisance: "using your property so as not to injure another's." This approach seemed appropriate to a land-rich country committed to laissez faire economic and social policies, but, in fact, it proved inadequate to the task of maintaining a decent living environment in the explosion of development that characterized the 19th-century industrial city.

American cities reacted to the crowding and disagreeable conditions of industrialization by limiting the areas where the most noxious industries could operate and by legally prohibiting the worst overcrowding through regulations governing the height of buildings. Boston adopted the first height restrictions in the U.S. in 1892, and in 1920 the U.S. Congress adopted similar regulations for Washington, DC. In Ohio, the enabling legislation (Ohio General Code: Par. 4366-7-11) was passed by the general assembly in 1920. Administratively, the city planning commission prepares the comprehensive plans and the zoning plan, which is adopted by city council. The first comprehensive zoning ordinance was adopted by New York City in 1916 after hearings that blended real estate and reform. The need to protect real estate investments took equal precedence with the need to provide the public with more air and light and to lessen unhealthy congestion in housing. The growth of zoning was phenomenal following passage of the New York City ordinance. In 1924, only 8 years later, the U.S. Department of Commerce, under Herbert Hoover, with the assistance of the U.S. Chamber of Commerce, published the Standard State Zoning Enabling Act. It sold more than 55,000 copies and was adopted almost verbatim in Ohio and almost half the states. By 1930 768 municipalities, with 60% of the nation's urban population, had adopted zoning controls, including many in Greater Cleveland, where EAST CLEVELAND adopted the area's first zoning ordinance in 1919. Other Cleveland communities soon followed: BAY VILLAGE in 1920, CLEVELAND HTS. in 1921, LAKEWOOD and EUCLID in 1922, BRATENAHL in 1923, and PEPPER PIKE in 1924. The City of Cleveland, whose city planning commission was created in 1913, adopted its zoning ordinance in 1929. By 1958 almost every municipality in Cuyahoga County had a zoning ordinance. While zoning attained immediate acceptance, city planning and zoning administration lagged. In 1942 26 Greater Cleveland communities had adopted zoning ordinances; only 1, the City of Cleveland, had any paid administrators. In the post-World War II era, no aspect of local government, with the exception of taxation, has generated as much intense public interest.

Its administration is carried out by thousands of unpaid citizens who serve on planning commissions, zoning boards, and boards of zoning appeals. In 1970 25,000 people served in this capacity in the metropolitan areas of the U.S. In 1985 Cuyahoga County had 54 communities with planning commissions, 34 with boards of zoning appeals, and 463 citizens, mostly unpaid, serving on them. The constitutionality of zoning was not tested until 1926, when the celebrated case VILLAGE OF EUCLID V. AMBLER REALTY CO. was brought before the U.S. Supreme Court. In deciding Euclid, a small village of 10,000 persons immediately east of Cleveland, the Supreme Court held that comprehensive zoning was a constitutional exercise of the police power. The Court's opinion contained 3 principles that have shaped all subsequent zoning litigation. First, the Court emphasized that the scope of the police power is elastic and capable of expansion to meet the complex needs of an urbanizing society. Second, taking challenges based upon dollar loss in property values would not be sustained on that ground alone. Diminution in value would henceforth be considered as only one factor in a calculus that weighed the community's interest in orderly development against the land owner's claim to unrestricted property use. Third, the Court extended to zoning enactments a presumption of validity that it had not formerly received. The Euclid decision was of such importance that from 1926 when it was decided until late 1973, the Supreme Court accepted only one other zoning case.

As zoning matured from a novelty to an accepted institution, and as the pace of suburban development accelerated after World War II, critics began to raise questions about the possible use of zoning to classify and segregate the general population according to income, race, or station in life. These critics pointed to the conflict between the legitimate desire of a community for orderly growth and "preservation of community values" as opposed to the need to provide reasonably priced housing for the region. Noting the extreme racial and economic segregation of Greater Cleveland (2nd in the U.S. behind Chicago in 1980), these critics suggested that large-lot or "snob" zoning that protects existing interests in property by making new development more expensive plays a significant role in economic and racial exclusion. Studies lent support to this view: of the 825,000 acres of land in Cuyahoga County zoned for single-family use in 1971, 67% was zoned for 1/ 2-acre sites or more; 85% of all residentially zoned land in nearby Geauga County required lots of 1 acre or more. Many suburbs either did not permit multifamily housing at all or discouraged apartments by mandating low height and density requirements. Critics feared that such zoning could only raise the price of housing and deepen economic and racial segregation throughout Greater Cleveland. These issues were raised in 2 important Greater Cleveland cases: U.S. v. City of Parma and City of Eastlake v. Forest City Enterprises, Inc.

In June 1980, more than 7 years after the U.S. Justice Department brought suit, Judge FRANK J. BATTISTI of the U.S. District Court of Northern Ohio found the city of PARMA liable for violating sections of the Federal Fair Housing Act. The court found that Parma, through a systematic pattern of actions and inaction, had followed a long-standing practice of excluding blacks (see AFRICAN AMERICANS) from residing in the city. Included among these actions was the charge that Parma's city council had denied a building permit to a subsidized apartment development, mandated excessive parking requirements in order to raise housing costs, and passed a zoning ordinance sharply restricting height in order to block any subsidized apartments. In the view of the court, land-use regulations were being used for exclusionary and discriminatory purposes. The court-ordered remedy required Parma to promote the development of racially integrated subsidized housing. An unreasonably complex zoning procedure with a possibly exclusionary impact was the issue in the 1976 case of City of Eastlake v. Forest City Enterprises, Inc. Forest City proposed to rezone 8 acres of its land from industrial use to high-rise residential. Eastlake's planning commission and city council agreed to the proposal, but opponents demanded a referendum and defeated the rezoning. Subsequently, the city charter was amended to provide that any rezoning application would have to be voted on by the city planning commission, approved by city council, and approved by 55% of the voters at a mandatory referendum. The developer would have to pay the costs of the referendum. The developer brought suit alleging that it was denied due process and that the referendum violated the Ohio constitution. From the perspective of the land owner, the need for a referendum and its cost would obstruct any change in land use by rendering such change so burdensome as to be prohibitive. The majority of the Supreme Court, however, in upholding the amended city charter, saw the mandatory referendum procedure as an appropriate extension of town hall democracy.

Cleveland City Council approves zoning changes needed to implement land-use recommendations in the city, and the concept of direct voter control of zoning has proved to be very popular in the Greater Cleveland area. Between 1971-77, 21 communities in Cuyahoga County adopted some form of zoning referendum ordinance. That gave the people the direct ability to control growth, protect the "character" of the community, and exclude unpopular land uses. As such, it was a powerful weapon to strengthen the status quo. For example, in STRONGSVILLE, from 1971-77 voters defeated 10 out of 11 proposals for rezoning from single-family to multifamily residential uses. Over the same period in Greater Cleveland, only 1 out of 15 multifamily proposals to go on the ballot passed, and only 2 out of 28 proposals relating to any rezoning change at all were approved by mandatory referendum communities. The possible conflict between home rule and regional responsibility seems likely to underscore future zoning issues. Zoning is a relatively new but very popular modern function in local government. It has been the target of numerous changes and challenges since it appeared in the U.S. and in Greater Cleveland in the early part of this century. Challenges have been mounted by 3 groups: land owners or developers, who typically resist a limitation of their options imposed by the regulations; present residents of communities, who usually seek to impose their vision of desirable community standards through land-use regulations; and surrounding communities and residents of surrounding communities, who are concerned with the adverse regional effects of some restrictive local land-use regulations. Potential residents would like to trade their older environments and public facilities for newer ones; their hopes are not aided by regulations that artificially raise prices or limit racial and economic diversity. The interests of the third group, perhaps best exemplified by the Parma and the Eastlake cases in Greater Cleveland, seem likely to present the region with more frequent challenges in the future. Zoning, which represents a compromise between private rights and the public interest, must be continually modified and broadened to meet these challenges.

Norman Krumholz

Cleveland State Univ.

Cuyahoga Regional Planning Commission, Land Development Regulations (Oct. 1974).

Cuyahoga Regional Planning Commission, Staff Report on Status of Mandatory Referendum Procedures for Land Use Decisions (11 Apr. 1977).

Overzoning for Business, Regional Assn. of Cleveland, Report No. 5 (Feb. 1939).

Village of Euclid v. Ambler Realty Co., 272 US 365 (1926).

Land-Use Controls in Greater Cleveland, 1985