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krycek1984

Minimum Square Foot Limits

krycek1984
13 years ago

Has anyone here ran into problems with minimum square foot limits in an HOA or coding for the city/township/town?

The lot we'd like to build on in about 5 years is in a township that has a minimum square footage limit on 2 floor homes of 2200 sq ft and ranches of 1200 sq ft (silly right?).

Is this common? Especially a large minimum limit like 2200 sq ft? Have any of you experienced this issue?

Comments (62)

  • arkansasfarmchick
    13 years ago

    It is quite disturbing to me that our "Land of the Free" has come to this. Protecting tax base, indeed. Government needs to butt out of people business. The HOA's are bad enough... Landowner's rights are sacred where I come from.

    V

  • kerrychelf
    7 years ago

    Krycek1984, what did you end up building? Or did you sell the property and build elsewhere?

  • cpartist
    7 years ago

    Kerrychelf this thread is 6 years old.

  • zippity1
    7 years ago

    minimum square ft in our subdivision is 1500 deed restrictions written in 1979

  • PRO
    Virgil Carter Fine Art
    7 years ago

    What's the point of a thread which began in 2010?

  • bluesanne
    7 years ago
    last modified: 7 years ago

    It may be old, and the OP may no longer be hanging out on this forum, but it's an interesting issue and if someone is researching the topic it is pertinent to them. If not, I suppose they are impertinent.

  • Adriana Gutierrez
    6 years ago

    This question is more relevant today than when the thread was started. A lot of subdivision covenants are out of line with the Tiny House movement. Some covenants or municipalities may have provisions for requesting a variance. Modifying covenants is more complicated, often requiring a majority or even 2/3 approval of all property owners.

  • bry911
    6 years ago
    last modified: 6 years ago

    Well just FYI, the courts have struck down almost every broad government imposed minimum home size requirement that isn't based on safety or public good. For example, they can actually require that a living room be 100 square feet and each bedroom be at least 60 square feet, etc. and that every house must contain at least one living room, bathroom, kitchen, and limit the number of people per bedroom. However, that will only get you close to 800 square feet even with a lot of kids.

    Now, HOA and deed restrictions are fine, as they were not developed by governments.

    Note: just because courts routinely say no, that doesn't necessarily mean that the city removes the requirement.

  • PRO
    Virgil Carter Fine Art
    6 years ago
    last modified: 6 years ago

    Perhaps it's to prevent moving a trailer onto the property...? Maintain property values and all that...?

    If a HOA or owner with deed restrictions is acceptable, why shouldn't a jurisdiction act in similar fashion if it uses due process? Isn't that what planning and zoning is all about? You want a limestone quarry, a cattle feed lot or a hog farm developed next to your Mcmansion?

    Don't like what the city mothers and fathers did? Vote 'em out, and send a message to their successors.

    Democracy still works...sometimes!

  • dsnine
    6 years ago
    last modified: 6 years ago


    I realize this is a zombie thread but oh well ;)

    Our subdivision has those rules, and it’s no big deal. There is a GLUT of older small housing in the area - 800-1400 square feet. Larger homes sell faster and are much more desirable, which is what the HOA wants. It also prevents buildings with a character outside the aim of the neighborhood from being constructed.

    Now whether they should have that rule or I like it is a different issue - I really don’t like HOAs. But it is very common.

  • bry911
    6 years ago
    last modified: 6 years ago

    @ Virgil

    We broadly accept that there are four natural rights (laws) that are protected by positive laws, life, liberty, property and pursuit of happiness. The law generally holds that you can do whatever makes you happy with your property so long as your positive benefits don't interfere with someone else's rights.

    This includes the right to covenants and restrictions on property when you sell it to others. The idea being that others who purchase this property were aware at purchase that the covenants and restrictions existed, even if they are changeable through a prescribed HOA process.

    However, the government can't make arbitrary guidelines. Government restrictions have to be based on the protection of a natural right. Now, in practice we hold that governments have broad leeway in city planning for the health and well being of the community. But that planning still must be based on producing a better life for its citizens, behind every zoning and city planning ordinance you will find a public health or public good justification. It might just be stuck in somewhere by the lawyers, but it is there. An arbitrary square footage limit by a town breaks with this idea, so they really do need some public health or public good reason for it.

    Additionally, it is discriminatory, which the government is kind of barred from doing.

    Finally, it is commanded economics, which we are not always against, but Communism is a word that often rubs people the wrong way.

  • PRO
    Virgil Carter Fine Art
    6 years ago

    "...However, the government can't make arbitrary guidelines..."

    Yes, of course. We agree on the limitation on "arbitrary" ordinances and regulations.

    But...how can any of us here say a jurisdictional restriction on minimum sized new homes is arbitrary?

    We don't know the situation; we don't know what the electorate may have asked their legally elected and appointed representatives to do; we don't know anything about the specific situation.

    Given the complexity of modern planning and zoning which has resulted in common restrictions on lot setbacks and non-buildable areas, maximum height, maximum site coverage, maximum impervious coverage, mandatory daylight planes and the like...a minimum buildable or occupied floor area does not seem out of line to me...particularly if due process and required public hearings were part of the process before enacting such a restriction.

    And since the restriction is a matter of public record, what would be the grounds for appealing for a variance or repeal of the ordinance?

    Something like, "Your honor, I want to buy and build on this property...but I don't like this restriction. It's onerous and unfair to me. The fact that many other residents who live in the neighborhood and who have complied with the restriction should have no bearing on my situation. And oh, by the way, there are a half-dozen other zoning restrictions I don't like either...so please invalidate them all of these which I find unappealing...if it please the court!"

    Good luck!

  • bry911
    6 years ago
    last modified: 6 years ago

    But...how can any of us here say a jurisdictional restriction on minimum sized new homes is arbitrary?

    I don't follow your question. Arbitrary is arbitrary, it isn't up to interpretation. If the decision isn't made in response to evidence, then it is arbitrary. If there is evidence to support the decision and said evidence was the basis for the decision then it isn't arbitrary. For governments, that evidence typically must be for public good (access to hospitals, groceries, traffic flow, etc.) or public health. So it is unlikely that a government ordinance that establishes different size requirements for a one story vs. a two story will work, but a government ordinance that says no more than 2 stories is allowed if established because of fire safety.

    -------------------------

    Please note, I am not making a statement on how good or bad this is. I am telling you that the courts have been striking it down in every single state for a solid 50 years now. The very simple answer is that we have a legal system built on legal precedent and the precedent overwhelmingly says that governments are not allowed to do this. Any discussion on why they are right or wrong is largely arbitrary, it is done.

    A quick search through Westlaw earlier and I can only find one case where the township prevailed, and they had specific prescribed process for granting allowances under their limit.

  • PRO
    Virgil Carter Fine Art
    6 years ago

    "...they had specific prescribed process for granting allowances under their limit..."

    That's my point. And if one jurisdiction did it properly, others may also!

  • drbevdc
    6 years ago
    This is an interesting discussion. Virgil, just to blow your mind, where we are building, unless it violates state or federal law (raw sewage discharging into a stream, for example), there are no zoning ordinances, permits, codes, etc. We are outside the city limits, not part of a subdivision, and the county we live in doesn’t have the authority to regulate those things. They put county-wide zoning on the ballot a few years ago, and it failed. They haven’t tried again since.
  • bry911
    6 years ago
    last modified: 6 years ago

    That's my point. And if one jurisdiction did it properly, others may also!

    An ordinance that requires, "a minimum square footage limit on 2 floor homes of 2200 sq ft and ranches of 1200 sq ft" is very likely arbitrary on its face, and far far too large to ever stand up to strict scrutiny.

    I was just trying to give some helpful insight to people who might want to look at this in the future. These cases are no-brainers, they just can't stand up to the required scrutiny. They are obviously for the protection of property values.

    The mentioned quick search found one case in Texas where a very small minimum limit was upheld (I believe it was 600(ish) square feet for two bedroom house). The noted exception was in cases where a lot existed and set-backs were such that a one story home could not be made large enough without an exception. It had a corresponding limit on apartments.

    The exact same Texas court struck down an ordinance a few years later that followed the exact same procedures but a larger minimum (iirc it was like 850 square feet) with the exact same exception, noting that minimum was clearly discriminatory.

    ----------------

    On a side note: I suspect that the power of HOA's and deed restrictions are going to be challenged in the next 30 years. They are beginning to overreach quite a bit and it is about time the courts slap them around a bit. There is a 2 pet limit on my deed restrictions, I laughed at that one.

    ETA: When I first read the OP I was confident that the OP was confusing a deed restriction with a zoning ordinance. I was sure that no town would ever be so foolish as to try this. How are you going to get past the 14th Amendment? Well apparently they occasionally can do it for public health and public good, but even then, they have to be incredibly reasonable limits. Nothing even close to the OP's limit.

  • PRO
    Virgil Carter Fine Art
    6 years ago

    As many here have written, planning, zoning and design ordinances and regulations run the gamut in the U.S. (and perhaps Canada). The range of these extends from virtually zero to extraordinarly complex (and, in some folks mind, overly restrictive).

    As the past chair of a city planning commission, and past chair of an architectural review board, in the California Bay Area, I have some knowledge of these on the more complex and restrictive side.

    My point is not to argue the legal merits of these. It's simply to point out that they exist in many areas, and it's very important for prospective homeowners to understand what's applicable in their respective jurisdictions.

    It's easy to criticize planning, zoning and architectural ordinances and regulations. But the other side of the issue is equally problematic. In areas without zoning, it's very possible to have a very unappealing (and negative property value) development next to your own property, without notice or recourse. Who has had a limestone quarry, cattle feed lot or hog farm developed on property adjacent to yours?

    If anyone wants to challenge their local ordinances and regulations in court, be my guest. I'm sure there's a long line of attornies standing by who will gladly accept payment for legal fees.

  • bry911
    6 years ago
    last modified: 6 years ago

    An entire city can't make a law that doesn't allow someone who is poor to build in their city, any more than it can bar single women or black men from moving into the community. PERIOD. If you don't like what it does to your property value, then you have to find a non-governmental solution.

    ----------

    Now other types of zoning actions may be fine. Saying that this area is for houses while another area is for businesses, etc. are OK within reason. Even an upper limit on home sizes would be much much easier to get through. Weird zoning laws are fine, overly restrictive is also OK, so long as they are not arbitrary, but governments can't create ordinances that put an undue hardship on a suspect class, nor should they be able to.

    So if your city ordinance says you must build a 2,200 square foot house, then challenge them. Challenge them even if you are going to build a 2,500 square foot house because someone out there wasn't and is powerless to challenge it.

  • PRO
    Mark Bischak, Architect
    6 years ago

    "As the past chair of a city planning commission, and past chair of an architectural review board, in the California Bay Area, . . . "

    You are a braver man than I thought.

  • PRO
    Virgil Carter Fine Art
    6 years ago

    Yes, please do as bry911 suggests and challenge your jurisdiction's planning, zoning and architectural review ordinances and regulations. There's a long line of lawyers who are looking for legal fees and expense payments.

    Jeesh...who advocated anything about zoning which negatively affects one's economic status, marriage status or race?

    Amazing how these prolonged discussions go off the track and folks talk past one another...

  • bry911
    6 years ago
    last modified: 6 years ago

    There's a long line of lawyers who are looking for legal fees and expense payments.

    If they had a lawyer they wouldn't have passed the ordinance (actually to be fair...act first, check later, does sound like local government).

    who advocated anything about zoning which negatively affects one's economic status, marriage status or race?

    If you stare real hard into the screen can you see your reflection? You are defending a planning commission's right to enact an ordinance that says a one story home must be 1,200 square feet and a two story home must be 2,200 square feet. Not one of hundreds of useful ordinances.

    A law that says a house must be 1,200 square feet or 2,200 square feet is clearly detrimental against anyone whose budget only allows for 1,000 square feet. Which for a single family home is still a very solid amount. That is all I am talking about, nothing else, if a town wants an ordinance that says every house has to be hot pink...Great.

    Amazing how these prolonged discussions go off the track and folks talk past one another..

    This discussion and my input is very simply about a town enacting an ordinance that creates an unreasonable minimum limit and my knowledge of the legal outcomes. I haven't discussed anything else.

    You discussed, "moving a trailer onto the property," a "limestone quarry," a "cattle feed lot," a "hog farm," "lot setbacks," "non-buildable areas," "maximum height," "maximum site coverage," "maximum impervious coverage," "mandatory daylight planes," "half-dozen other zoning restrictions I don't like either," and "the like."

    None of those are pertinent to the particular topic at hand. Yes the zoning commission can do all kinds of things, they have a lot of leeway, until they run up against a suspect class, and then they have none.

    -------------------

    I am done with this. If you want to have a discussion on why a 1,200 and 2,200 square foot requirement is acceptable, then fine. But I am done discussing an equal protection violation that any 14 year old in any government class should start screaming about in 8 seconds.

    ETA: If you want to change the Constitution then run for an office that can do that. I will give you a hint...It ain't the city planning commission.

  • _sophiewheeler
    6 years ago
    last modified: 6 years ago

    So zoning regulations are unfair and unconstitutional?

    If business can be regulated into one zone, and warehouses in another, and apartments in another, then limiting this area to 2500 sf minimums and another to 5000 sf minimums and another to 1000 sf minimums should be challenged as discriminatory? Let’s do an 2000 unit low income apartment building right next door to you, because to deny them that right is discriminatory!

  • bry911
    6 years ago

    @Sophie

    We are not discussing whether or not a low income apartment unit should be allowed in your neighborhood. It is whether or not it is allowed in your town. I know there is precedent for cities applying certain limits to neighborhoods, but that is different than a city-wide ban.

  • PRO
    Virgil Carter Fine Art
    6 years ago

    "... I am done with this. If you want to have a discussion on why a 1,200 and 2,200 square foot requirement is acceptable, then fine. But I am done discussing an equal protection violation that any 14 year old in any government class should start screaming about in 8 seconds..."

    Oh brother...all I've been discussing since this thread started is the right for legally constituted jurisdictions to enact planning, zoning and architectural review ordinances and regulations through due process.

    And I've tried to make the case that, more often than not, these may be beneficial to the community in which they are enacted.

    I recognize and respect that some folks will strongly disagree. After all, I live in the middle of Texas where even the wind blows wild and free.

    I've never mentioned or brought up equal protection laws.

    If you think planning, zoning and architectural review ordinances and regulations are prima facie discriminatory and a violation of some equal protection law or other, that's up to you.

    If that's the case, however, you should stare hard at your own reflection in the computer monitor.

  • PRO
    Virgil Carter Fine Art
    6 years ago
    last modified: 6 years ago

    "... I know there is precedent for cities applying certain limits to neighborhoods, but that is different than a city-wide ban..."

    I think I see the problem in recent postings in this conversation...I think.

    The OP's post about a lot in a township, "...a minimum square footage limit on 2 floor homes of 2200 sq ft and ranches of 1200 sq ft (silly right?)..." is vague and imprecise. Does the OP mean the lot has a minimum square footage? Or does the OP mean the entire township has a minimum square footage?

    There's a difference isn't there?

    Interestingly in this thread, however, many posters seem to think zoning restrictions are fine for HOAs, subdivisions, tracts of land and even individual parcels using deed restrictions--just not for city or township jurisdictions, apparently.

    FWIW, it is a common zoning condition to zone land for varying and different residential use areas, such as R1, R2, R3, R4, etc., as well as to use PD, PUC and PUD zoning regulations, which may include residential and other permitted uses. In addition, in many (most?) communities, there may be different zoning standards for a range of development intensities in a single zoning designation.

    For example, R1-1 may be for minimum lot sizes of 25,000 SF, while R1-2 may be for minimum lot sizes of 10,000 SF, etc. So...if a jurisdiction can reasonably enact zoning for intensity of development, using lot sizes...why can't they reasonably enact zoning for intensity of development using dwelling sizes?

    There are so many variations to land use zoning categories and development intensities, that it's almost impossible to generalize about them, except to say they exist in virtually every major metropolitan area in the US, except Houston, which, as I understand it, has never had a zoning ordinance.

    The point, simply, is that there are a great many land use zoning categories and intensities of development in common use, all enacted through some sort of due process by each jurisdiction.

    For a visual, get a General Plan (sometimes called a Comprehensive Plan or other designation) map of your city. It will show all of the zoned areas and levels of development intensity in your city limits.

  • bry911
    6 years ago
    last modified: 6 years ago

    The OP's post about a lot in a township, "...a minimum square footage limit on 2 floor homes of 2200 sq ft and ranches of 1200 sq ft (silly right?)..." is vague and imprecise. Does the OP mean the lot has a minimum square footage? Or does the OP mean the entire township has a minimum square footage?

    The OP says, "a township that has a minimum square footage limit on 2 floor homes of 2200 sq ft and ranches of 1200 sq ft"

    That is what I was responding to, rather than a subdivided area restriction. In fact, I only did the search as proof that no town would actually attempt it. Imagine my surprise when I found out that incorporated towns attempt these all the time.

    Interestingly in this thread, however, many posters seem to think zoning restrictions are fine for HOAs, subdivisions, tracts of land and even individual parcels using deed restrictions--just not for city or township jurisdictions, apparently.

    I don't think they are fine or really even legal, however, the courts don't agree with me.

    ----------------------------------

    Remember there are an average of 6 incorporated cities per county in the U.S. My county has four incorporated cities and the largest is 7,000 people. So a small city that is close to a larger city deciding it wants to keep poor people out with a zoning regulation is not as preposterous as you would think.

  • PRO
    Virgil Carter Fine Art
    6 years ago

    bry911, you seem fixated on planning, zoning and architectural review ordinances and regulations as a major social issue, and which are designed to be to the detriment of some groups or segment of the population or other.

    Perhaps this is the case in your location. But it hasn't been my experience living on the Left Coast, Right Coast and In The Middle.

    Can you see these ordinances and regulations as simply having to do with land usage and intensity of development and leave the social implications out of the discussion? Neither you, nor I have any knowledge of the community in question.

    If it's reasonable for zoning, for example, to designate various land usages (residential, commercial, industrial, et al), and to designate development intensities for said usage using lot sizes or site coverage or height limits or daylight planes, et al, why in the world wouldn't it be reasonable to limit development intensity using floor areas?

    I know it's a lot to ask after all this...

  • bry911
    6 years ago
    last modified: 6 years ago

    you seem fixated on planning, zoning and architectural review ordinances and regulations as a major social issue

    Rich people who want to get rid of a few poor people to put in mansions, destination shopping or a resort... Sound familiar? I will give you a hint: it's the plot of a few hundred movies and even more books.

    Also one of the most common types of cases taken by the ACLU and has been for many years.

    why in the world wouldn't it be reasonable to limit development intensity using floor areas?

    This is not the same thing. Of course, they can limit development intensity using floor areas, and they do so in multiple ways (e.g. lot sizes, set backs and maximum square feet). But the requirement can't create an undue hardship on a suspect class.

    why in the world wouldn't it be reasonable to limit development intensity using [hefty minimum] floor areas?

    It isn't unreasonable at all. In fact, there is a very good reason to do it. To keep property values up in an area by keeping out smaller properties. The problem being, it is unconstitutional. Follow the reasoning out one more step, and you arrive at, keep property values up by keeping out people who can't afford to build 2,200 square feet.

    I understand the sentiment, I really do. I live in a neighborhood of 5,000(ish) square foot houses and I don't want someone coming in and building a shack next to it. In fact, I suspect a significant percentage of homeowners feel the same way. Which is exactly why the protection exists.

    It is allowed on HOA's for a different reason. Although, I suspect HOA's and deed restrictions are going to get their hands slapped soon. In essence, deed restrictions and HOA's can act in ways that governments can't specifically because they are not governments.

    ----------------

    Let's stop talking abstractly, let's address this specific question. Should Houston be allowed to say that no residence shall be constructed in the entire city of Houston under 1,200 square feet for a one story and 2,200 square feet for a two story? If so, on what basis would that restriction be acceptable.

  • PRO
    Virgil Carter Fine Art
    6 years ago
    last modified: 6 years ago

    "...Let's stop talking abstractly..."

    Happy to do so. I've consistently been talking about specific, in-use planning, zoning and architectural review ordinances and regulations in common use throughout the U.S for a very long time.

    You've been talking about some abstract social ill or cause...some abstract and undefined class or group of people...

    Google "zoning floor area ratio". It's been in use for a hundred years or more.

    That's about as specific as one can get with zoning standards and development intensities.

    Now...how about no more abstract social causes...? Hmmmm?

  • bry911
    6 years ago
    last modified: 6 years ago

    i will ask again...

    Should Houston be allowed to say that no residence shall be constructed in the entire city of Houston under 1,200 square feet for a one story and 2,200 square feet for a two story?

    ---------------------------

    Google "zoning floor area ratio". It's been in use for a hundred years or more.

    You keep bringing up other ordinances as proof that this one is fine. Try to address the topic at hand without using misdirection. Yes, FAR's were established as acceptable in 1926 and the Supreme Court put limits on its use in 1928, specifically saying, "the action of the zoning authorities comes within the ban of the Fourteenth Amendment, and cannot be sustained"

    This was further clarified by the lower courts in 1975...

    Action was brought attacking system of land use regulation by township on ground that low and moderate income families are thereby unlawfully excluded from the municipality. The Superior Court, Law Division, 119 N.J.Super. 164, 290 A.2d 465, declared the township zoning ordinance totally invalid and appeal was taken. The Supreme Court, Hall, J., held that a developing municipality may not, by a system of land use regulation, make it physically and economically impossible to provide low and moderate income housing in the municipality for various categories of persons who need and want it; that ordinance permitting only single-family detached dwellings and which was so restrictive in its minimum lot area, lot frontage and building size requirements as to preclude single-family housing for even moderate income families was contrary to the general welfare; that release from consequences of tax system by limiting permissible types of housing to those having the fewest school children or those providing sufficient value to pay their own way could not be accomplished by restricting types of housing through the zoning process; and that ecological or environmental reasons was not a sufficient excuse for limiting housing to single-family dwellings on large lots.

  • mushcreek
    6 years ago

    This is an interesting discussion. Virgil, just to blow your mind, where
    we are building, unless it violates state or federal law (raw sewage
    discharging into a stream, for example), there are no zoning ordinances,
    permits, codes, etc. We are outside the city limits, not part of a
    subdivision, and the county we live in doesn’t have the authority to
    regulate those things. They put county-wide zoning on the ballot a few
    years ago, and it failed. They haven’t tried again since.

    Even though the local town, and even county doesn't have rules, the state might. Just because there isn't anyone around to enforce the rules, that doesn't make it legal. It's like car emissions; your town, county, or state might not require emission or safety inspections, but it is still against the law to tamper with those systems. Here in SC, the entire state is required to meet a certain IRC limit (I don't know offhand which version). It would be illegal to build sub-code even if the local authority doesn't enforce it.

    This is an interesting discussion. I'm a big advocate of allowing people to do what they want on their own land, assuming it doesn't harm anyone else or the environment. I'm also in favor of allowing HOA's that protect homeowners from having to live next to a shack. I'm NOT an advocate of an entire town acting as an HOA. It seems to me that the McMansion movement and the tiny house movement are on a collision course. With more and more green initiatives coming into vogue, requiring a minimum square footage (other than what is required for safety) is going to be more and more out of touch with the will of the people.

    We intentionally sought out property with a minimum of restrictions. This wasn't an option for the OP, although I don't know why they couldn't sell the property and use the money to buy property with less restrictions.

  • PRO
    Virgil Carter Fine Art
    6 years ago

    We are on different railroad tracks...

    Bry911 interprets the OP's comments to be applicable to the entire township, i.e., a zoning classification which is applied to the entire township or local jurisdiction.

    I, on the other hand, interpret the OP's comments to be applicable to the specific sub-division and lot where s/he is/was interested in building.

    Big difference.

    Regardless, virtually every developer residential subdivision is planned and developed with specific size dwellings (and specific size lots) throughout the development. You want a larger house, or a larger lot, or both...? Simple...buy more than one lot! You want to buy a lot and build a smaller house...? Not likely.

    Is that discriminatory?

    Data collected during a 2014 survey by NAHB provided, for the first time, summary statistics that describe the typical residential subdivision being built in the United States. The results were recently published as a Special Study in HousingEconomics.com.

    For subdivisions of single-family detached homes, the summary statistics are as follows:

    • Median size: 22 acres.
    • Median number of housing units: 48.
    • Median gross density: 2.1 units per acre.
    • 4% include retail space.
    • 4% include other (non-retail) commercial space.
      • This is surprising to me that the median gross density of housing units per acre is as low as 2.1 units per acre. Is it surprising that zoning in many areas tends to follow this pattern?
      • One wonders if its zoning which is leading and the cause of such low density housing developments, or if zoning is simply following the trend of developers to create and sell low density developments.
  • bry911
    6 years ago
    last modified: 6 years ago

    Bry911 interprets the OP's comments to be applicable to the entire township, i.e., a zoning classification which is applied to the entire township or local jurisdiction.

    I, on the other hand, interpret the OP's comments to be applicable to the specific sub-division and lot where s/he is/was interested in building.

    The lot we'd like to build on in about 5 years is in a township that has a minimum square footage limit on 2 floor homes of 2200 sq ft and ranches of 1200 sq ft

    Do we need to diagram the sentence?

    If I were to say, "The mountain I would like to climb is in a community with only 25,000 people" are you confused whether the mountain or the community has 25,000 people?

    YOU decided that the OP meant something other than what was said. To be fair, I actually did too, until I started looking at cases to give a real answer on how courts look at it. But entire townships quite commonly set very aggressive square foot minimums for their entire town. So I answered the OP's question and gave the reason the courts have cited rather than deciding the OP was incapable of writing a sentence.

    If you would like to have a discussion on general zoning, well great, but that is a different discussion. Which I have noted and you have ignored several times now.

    -------------------------

    If we are talking only subdivided zoned areas of towns. My answer, that you got upset over, still holds, and it has held since 1928 when the Supreme Court ruled on it, townships have had broad leeway to determine public good and therefore zoning requirements, but they can't be arbitrary. There must be a stated public health or public good basis for it and the rule must be in reaction to that basis.

    The courts still look very unfavorably on any minimum size requirement even if for a proper reason, therefore most jurisdictions use other methods to encourage that, such as FAR's.

  • PRO
    Virgil Carter Fine Art
    6 years ago

    "...townships have had broad leeway to determine public good and therefore zoning requirements, but they can't be arbitrary..."

    That's exactly what I have been saying since the beginning of this thread. And, in addition, any ordinance or regulation may only be adopted after due process.

    The whole purpose of zoning is to manage the type of land use and the intensity of development within a jurisdiction.

    At last we can agree that jurisdictions may utilize building area standards, established in a variety of ways, whether specifying a square footage, using FAR multipliers, creating minimum lot sizes with setback standards, impervious coverage standards, daylight planes or a host of other standards, all of which are designed to manage the type of land use and the intensity of development.

    Such zoning standards are done every day, and in effect in virtually every jurisdiction which has a zoning ordinance.

  • David Cary
    6 years ago

    Can't you just keep poor people out by raising taxes or other requirements?

    In the US (most areas), we generally do a pretty good job of segregation. Whether by race or income. Most of this is government sanctioned.

    Impact fees are another way. High base utility rates.

    What I like about the square footage rules are that they are less subject to interpretation than other whims of government.

    Arbitrary = random/on a whim. The square footage rules make sense as a way of preserving or increasing tax base. That seems rational even if one doesn't agree.

    My city (rather large actually) fined me for not cutting my grass. They had an arbitrary limit of 6 inches (see the overuse of the word arbitrary there...) The house was being torn down so we didn't cut the grass while waiting for the NG to be shut off.

    My last town (180,000 people), had a 2 dog limit. Pretty arbitrary. It did get repealed.

  • PRO
    Virgil Carter Fine Art
    6 years ago

    Well...interesting discussion. I was silly enough to agree to be the chair of my HOA architectural committee. As such, it's up to me to remind my friends and neighbors, from time to time, of the HOA CC&Rs applicable to the exterior of their homes and property.

    It's always the same reminder: we were all attracted to our subdivision because of its beauty and appeal. We want to keep and enhance that beauty. And we all want to retain and enhance our property values over time. So let's work together and follow the CC&Rs we all received before closing on our properties.

    It's not exclusionary. It's not prejudicial. It's not arbitrary. It's simple and straightforward. Every owner has a printed copy. As far as I know, no one was forced against their will to buy property in our subdivision. There's good reasons for the CC&Rs and for all us to understand and support them. It's what makes neighbors into a neighborhood.

    Except if you don't like the CC&Rs. Then you look for reasons to support your dislike.

    Planning, zoning and architectural review are a lot like CC&Rs, except they are subject to due process.

    Is it possible for a jurisdiction's planning, zoning and architectural review to be onerous, capricious and/or arbitrary? Sure, anything is possible. But due process ensures public awareness, and participation. And if that's not enough there's the ballot box and the court system. Right bry911?

  • bry911
    6 years ago
    last modified: 6 years ago

    Arbitrary = random/on a whim.

    I am going to stick my head in the lion's mouth here. Arbitrary doesn't actually mean random or on a whim. I know that dictionaries, which report the common usage rather than the meaning of word, may give that result, but it is not really correct.

    Arbitrary describes the autocracy of decisions, or in this case, the autocratic power of governments. It can best be described as a rule without sufficient reason.

    So some very simplified examples:

    1. While out alone for a Sunday drive, when you decide to take a left turn just because you want to. That is a whimsical decision, but probably not an arbitrary one (at least without getting into metaphysics, at which point most words lose meaning).
    2. While driving your carpool to work you decide to take a left turn just because you want to. That is an arbitrary decision because you as the driver had authority over the decision and it affected others without an acceptable reason.
    3. While driving your carpool to work you decide to take a left turn because you believe it will be faster. That is still an arbitrary decision because your reason wasn't really acceptable, just because you think it will be faster is still an exercise of your autocratic power.
    4. While driving your carpool to work you decide to take a left turn because you went this way the other day and it was faster. That is not an arbitrary decision because your reason was acceptable.

    The square footage rules make sense as a way of preserving or increasing tax base. That seems rational even if one doesn't agree.

    What makes them arbitrary in that scenario is (1) increasing tax base isn't an acceptable reason. (2) How did you arrive at the 1,200 square feet? (3) The one that is going to trip you up, why different numbers for one and two story?

    It's not exclusionary. It's not prejudicial. It's not arbitrary. It's simple and straightforward. Every owner has a printed copy. As far as I know, no one was forced against their will to buy property in our subdivision.

    Your last sentence is the most important there. No one was forced to buy the property, and that freedom to say no, is what makes it acceptable. The bar for acceptable for HOA's are simply, did the rules or a mechanism to make the rules exist prior to the owner buying the property?

    However, your rules are exclusionary, in fact, that is there only purpose to exclude certain actions and behaviors. But HOA's are not governments and therefore, not subject to the same rules of fairness and inclusivity.

  • David Cary
    6 years ago

    Is there really a rule of fairness and inclusivity? Is that in the constitution?

    The equal protection clause has been interpreted to mean a lot of different things but I am not sure that it actually requires fairness.

    Codes in CA make building a house prohibitively expensive for a majority of its citizens. That doesn't really seem fair to me....

    In the car world, we usually describe arbitrary as it applies to speed limits. Not completely random but also not always based on reason either.

    The interesting part of this is that my city's UDO (Unified Design Ordinance) is far more restrictive and subject to interpretation than the average HOA. It is arbitrarily enforced based on the political power of the neighborhood. A minimum square footage rule is far more egalitarian, fair, less subject to manipulation etc etc.

  • PRO
    Virgil Carter Fine Art
    6 years ago

    As a former chair of the Architectural Review Board in Palo Alto (a jurisdiction long noted for highly regulated land use planning, zoning and architectural design), a favorite requirement for approving new residential designs was to require the use of "earth colors", as a means for houses to be harmonious with one another and to avoid visual clashes.

    Just how "arbitrary" is that? Of all of the aspects of architectural planning and design, color theory may just be the most contentious subjects and the one with the least amount of agreement in the fields of architecture and art.

    Yet, it was a commonly enacted requirement for conditional approval of new residential designs. And Palo Alto was one of the most attractive and appealing communities one could find.

    So...is "arbitrary" always a negative quality? Like beauty, it depends on the eye of the beholder doesn't it...?

  • bry911
    6 years ago
    last modified: 6 years ago

    Codes in CA make building a house prohibitively expensive for a majority of its citizens. That doesn't really seem fair to me...

    Why is that not fair? Do some people get an exception to the code?

    a favorite requirement for approving new residential designs was to require the use of "earth colors", as a means for houses to be harmonious with one another and to avoid visual clashes.

    Just how "arbitrary" is that?

    Not at all. You literally gave the reason why it is not arbitrary, "a means for houses to be harmonious with one another and to avoid visual clashes."

    So...is "arbitrary" always a negative quality? Like beauty, it depends on the eye of the beholder doesn't it...?

    That is a difficult question to answer and the one that governments struggle with daily. Arbitrary is always negative to someone. But we are at the means and ends discussion. Just because a rule does good things doesn't mean it wasn't arbitrary.

    All laws are discriminatory and exclusionary, that is their only purpose. Does that mean it is going to be challenged? It might, does that mean it is going to be repealed? Not necessarily. If you don't run up against a suspect class you don't get into strict scrutiny and that is less problematic.

    For example, If a government says that a house can't be solid black that is arbitrary if it was done without reason. It is discriminatory and exclusionary against people who want to paint their house black.

    On the other hand, if a government says that a house can't be solid black to avoid visual clashes that is not arbitrary. Although, it is discriminatory and exclusionary against people who want to paint their house black.

    However, if a government says that a house can't be owned by a black person, that is arbitrary even if done with a reason, because the reason isn't acceptable. It is discriminatory and exclusionary, and since it involves a suspect class it has to meet strict scrutiny, which it most certainly would not.

  • PRO
    Virgil Carter Fine Art
    6 years ago

    A visual explanation of zoning:


    A visual explanation of no zoning:


    Take your pick! :-)

  • bry911
    6 years ago
    last modified: 6 years ago

    Studies of the consequences of zoning (warning: there are more words than pictures in them).


    https://www.amazon.com/Color-Law-Forgotten-Government-Segregated/dp/1631492853

    And its predecessor by more than 50 years.

    https://www.amazon.com/Death-Life-Great-American-Cities

    Take your pick...

    I read The Color of Law on Sunday and despite the evidence, it is a bit hard to believe that zoning is responsible for that many social ills. I haven't read The Death and Life of Great American Cities, but I do know that it has been influencing sociologists for a while now.

  • PRO
    Virgil Carter Fine Art
    6 years ago

    Jacobs attacks 1950s mass urban destruction and "urban renewal"...one may question whether or not our urban ills all result from the thinking and action in the early 50s when so much of urban America was bulldozed for "progress".
    Regardless, one very negative example is the loss of Pennsylvania Station in New York, which was demolished in the name of "urban renewal". It was this sort of thoughtless destruction which led to the bad name deservedly given to "urban renewal".

  • bry911
    6 years ago
    last modified: 6 years ago

    Jane Jacobs was very outspoken against most zoning requirements, to pretend that she was only attacking 1950's urban destruction is silly. I will try to finish the book tonight but I do have to read some other stuff too, but thus far she is clearly against the zoning that you seem to be advocating.

    The greatest flaw in city zoning is that it permits monotony… Perhaps the next greatest flaw is that it ignores scale of use, where this is an important consideration, or confuses it with kind of use, and this leads, on the one hand, to visual (and sometimes functional) disintegration of streets, or on the other hand to indiscriminate attempts to sort out and segregate kinds of uses no matter what their size or empiric effect. Diversity itself is thus unnecessarily suppressed.

    ---------

    We can exactly what Jane Jacobs thought planning should look like and it is very much like your second picture.

    https://www.cmhc-schl.gc.ca/en/inpr/su/sucopl/upload/The-Kings-Regeneration-Initiative-Toronto-Ont.pdf

    ETA: You really need to read The Color of Law.

  • kudzu9
    6 years ago

    Virgil-

    I'll go with the flowers...

  • PRO
    Virgil Carter Fine Art
    6 years ago

    Wait...let's think about the sequence of things...urban planning is the large scale, big picture...the concept...and zoning...zoning is how urban planning is implemented on the ground, using land use and development intensity! Concept and implementation...! One linked to the other. Not separate.

    Jacob's book was required reading in graduate education in the 60s.

  • Angela Rae
    5 years ago
    last modified: 5 years ago

    I don't know anything about the legal discussion in this thread, and I know that the OP is specifically referring to a township, but I ran into a choice today that surprised me.

    I found a 3 acre lot in a 3 parcel subdivision with no current residents. I'd like to buy and build a small house on one. I'd like to have goats and chickens. I'm married and have one kid and made plans to only have one kid. I don't need a big house.

    Background on property: A farmer sold his 10ish acre lot to a guy recently for $340,000. The new owner hired an attorney to apply for annexation. City approved that lot to be split into three 3 acre parcels with some reasonable easements. City approved for rural estate to keep within the character of sourrounding homes, which keep animals. Owner has all 3 parcels on market. As one would expect, the covenants have equal use rights for irrigation water. The existing, surrounding are similar lots with horses or cow, a nice ranching area with small, nice homes with structures. But, the covenants state a minimum of 2,000 square feet. There are other stipulations on temporary structures. I can afford to build a bigger house, but I'd rather keep more land for goats and really dont want to care for or heat that much house for no joy. I don't understand what's going on. I can only assume that owner wants to attract buyers that want to build large estates. I don't understand. I'm gonna pay the same price to seller as someone that builds a large estate.

    Maybe i should just buy 2 or all lots to get two thirds or more vote, then terminate all stipulations other than equal water, then place other two lots on market? Took me a long time to save the cash I have, but there aren't that many lots this small, and the other lots are in HOA and not zoned for keeping animals.

  • bry911
    5 years ago
    last modified: 5 years ago

    the covenants state a minimum of 2,000 square feet. [...] I don't understand. I'm gonna pay the same price to seller as someone that builds a large estate.

    Developer deed restrictions exist to increase the selling price of the lot. By appealing to people who want to build large estates he can increase the price, but being beside similar homes makes those houses more valuable.

    Maybe i should just buy 2 or all lots to get two thirds or more vote, then terminate all stipulations other than equal water, then place other two lots on market?

    This will probably be pricier than simply building and maintaining a 2,000 square foot home. 2,000 square feet is about 1.5% of 3 acres so I don't think shrinking the house to get a few more square feet of grazing is really that important, siting the home well will probably do a lot more than shrinking it.

  • Dawn Pfister
    5 years ago

    Extremely common! A way of protecting investment of homes in the HOA.

  • l19birdog .
    2 years ago

    The minimum house size requirement is solely to increase the tax base. Similarly many other development requirements like curbed streets are designed to increase the developers cost in an effort to force them to build more expensive homes. ( Curbing streets actually increases water velocity and increases erosion. ) In my area there is an 1800 SQ Ft. minimum for houses but you can build an apartment complex with 300 Sq ft units.

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