Arts Uses Regarding Zoning and Permitting
Arts and culture uses in the built environment is regulated in zoning code through several ways: by-right zoning, overlay zoning, and a series of permits and relevant documentation that comprise the menu of approvals needed for temporary and permanent arts and cultural activities and public art to happen. These are the behind-the-scenes regulations that govern when, where, and under what conditions art making and art presenting may occur.
Planning with Zoning and Permit Processes
Planners may review and update zoning regulations and permitting processes to allow jurisdictions to identify various opportunities to remove barriers that may prohibit certain types of arts and cultural uses from locating in appropriate zoning districts. Planners can clear these hurdles by simplifying the code, creating more robust definitions for artistic and cultural uses, and developing incentives for their development and operation.
Why Arts and Culture Uses Need to be Specified in Zoning Bylaws
Artistic practices often fall between use categories because acceptable uses change across zoning districts. Therefore, it often takes people with special expertise – beyond the knowledge of working artists – to navigate what may be acceptable practices where they live and work. For example, is a potter who has a wheel and electric kiln in their home a light manufacturer in which case they need to move into an industrial district? What if this person sells their wares - does that mean they are running a retail operation and should instead be in a commercial space? Or can they continue to operate their studio, and sell a few things inside their private home in a residential neighborhood? Planners can help clarify acceptable uses that encourage safe and sound artistic production.
Who Writes Zoning?
The process of adopting or changing a zoning bylaw or ordinance begins with the filing of the proposal with the City Council or Board of Selectmen. A proposal may be initiated by:
- a City Council
- a Board of Selectmen
- a Zoning Board
- an individual who owns land which would be affected by the proposal
- ten registered voters in a city
- a Planning Board
- a Regional Planning Agency - aka MAPC
- other methods provided by a municipal charter
Once a draft is received, the City Council or Board of Selectmen sends it to the Planning Board so they may draft recommendations. A public hearing must be held. And then a vote may take place in which a supermajority of the legislative body may adopt, amend and adopt, or reject the zoning proposal.
In Massachusetts, each municipality determines their own legislative body. Whether that power resides in the hands of representatives such as a City Council or Select Board, or relies on the direct democracy approach of town meetings, a supermajority of 2/3 of that body must vote to adopt the bylaws. In 2019 Governor Baker proposed reducing that threshold to a simple majority as part of his Housing Choice Bill.
Can Zoning and Permits Generate Income?
Zoning can create the conditions for economic growth which can boost a municipal tax base. Additionally zoning can establish special provisions that incentivize developers to either set aside space in their development for an arts and culture use, or to contribute to a fund for the production of public art (see Percent for Art).
permits may entail fees which can generate income for a municipality. Fees can be structured so as to be cost-prohibitive for the activities they regulate. Or, fees can be used to simplify permitting processes and encourage their use, creating equity in the process.
Zoning Provisions that Incentivize Arts and Cultural Uses
Zoning provisions can enable the inclusion of arts and cultural uses and cultural facilities in smart growth locations.
In Lowell, Massachusetts, where the city seal bears the inscription "Art is the Handmaid of Human Good," the city adopted provisions in Article IX, Section 9.2 of the Zoning Ordinance that defines the Artist Overlay District (AOD) in the downtown, which aims to encourage artist live/work space (City of Lowell, 2004; City of Lowell, 2016). The AOD provides density bonuses to developments in the downtown district as a developer incentive for the provision of artist live/work space; however, the adaptive reuse of a building or structure for such uses requires a special permit from the Zoning Board of Appeals.
The City of Somerville, Massachusetts produced a 2009 zoning handbook for citizens, businesses, and city agencies that documented the efforts of the Somerville Arts Council and the Mayor's Office of Strategic Planning and Community Development. As of June 2016, the Somerville zoning code is undergoing an overhaul and the draft zoning includes several provisions that pertain to arts and cultural uses. The provisions include: a density bonus for artist housing in an article pertaining to community benefits for inclusionary housing (i.e., inclusion of affordable housing in residential developments of a certain size); creation of a new fabrication district that will accommodate a range of building types and mix of uses supporting the local arts & creative economy; and revisions to the zoning pertaining to the Brickbottom District, to facilitate a diverse mix of uses including fabrication, production, performing arts, and other non-arts commercial (e.g., office and research and development) and residential uses. Also, see the case study on Metro Nashville Arts Commission's work on the passage of Artisan Manufacturing Zoning Ordinance.
Permitting for Arts and Culture Activities in Public Spaces
In addition to special permits for building development, local bylaws describe a set of permits – and permitting processes – for requests for temporary or permanent public art installations and events. The institution of certain standards and requests for informational documents that accompany the submission of permit requests may streamline the review and approval process.
The CMAP Arts and Culture Toolkit (2014) recommends that jurisdictions consider asking artists to submit impact management plans and/or operations plans prior to the release of permits for events and activities as one measure for ensuring that the proposed activities do not generate adverse impacts on the built environment as well as businesses and residents. However, the CMAP Toolkit provides no examples of such plans in action and their efficacy in reducing burdens on both artists and government and streamlining approval processes (2014).
Permitting for Arts and Culture Uses in Private Spaces
Artists need spaces for a variety of uses: from industrial production, to retail, to other forms of living and working. Typically these uses are separated into different categories that are allowed to a greater or lesser extent depending on the zone. Arts districts allow for these use categories to become more flexible. Additionally, arts districts may consider revisiting other regulations such as signage ordinances, parking requirements, and adaptive reuse permissions to support the artists who are living and working in that area.
Reviews of Zoning regulations and permitting processes to remove barriers to the inclusion of arts and cultural uses and facilities
Arts and culture in the built environment is regulated in zoning code through several ways: by-right zoning, overlay zoning, and a series of permits and relevant documentation that comprise the menu of approvals needed for temporary and permanent arts and cultural activities and public art to happen. A thorough review and assessment on zoning regulations and permitting processes allows jurisdictions to identify various opportunities to remove barriers that may prohibit certain types of arts and cultural uses from locating in appropriate zoning districts. For instance, the institution of certain standards and requests for informational documents that accompany the submission of permit requests for temporary or permanent public art installations and activities may streamline the review and approval process. The CMAP Arts and Culture Toolkit (2014) recommends that jurisdictions consider asking artists to submit impact management plans and/or operations plans prior to the release of permits for events and activities as one measure for ensuring that the proposed activities do not generate adverse impacts on the built environment as well as businesses and residents. However, the CMAP Toolkit provides no examples of such plans in action and their efficacy in reducing burdens on both artists and government and streamlining approval processes (2014).
Zoning Regulations and programs in support of artist housing
Chapter 575, Article V of the City of Peekskill, New York's Zoning Code includes language in its C-2 Central Commercial District that permits the inclusion of accessory living spaces to individuals certified as artists. Chapter 169 of the Zoning Code, which was adopted in 2000 and amended in 2008, also created an Artist Loft Program, which is managed by the Department of Planning and Development (City of Peekskill, 2000). The program has helped to spur the revitalization of what was once a largely vacant downtown (Borrup, 2006).
Zoning language that defines and promotes the inclusion of cultural facilities in Smart growth locations
The Chicago Metropolitan Agency for Planning (CMAP) produced a toolkit on arts and cultural planning that prompts municipalities to consider the needs of arts disciplines and industries and to consider including use definitions and provisions that can support the sector. CMAP has developed sample definitions of arts and cultural uses that can be include in the list of terms and definitions in zoning ordinances and bylaws. CMAP also recommends two regulatory tools: 1) adaptive reuse provisions that can incentivize the reuse and partial redevelopment of underutilized structures for arts and cultural uses, and 2) arts districts, which can be integrated as an overlay district or as a part of base zoning; CMAP provides a checklist of important components to consider when developing the provisions rather than a template, as such zoning is not one size fits all (2014).
A compilation of laws, cases and web sources on zoning law in Massachusetts.
The Chicago Metropolitan Agency for Planning produced this Arts and Culture Planning Toolkit to help municipalities incorporate arts and culture into their communities, enhance livability by improving quality of life, and become more attractive places to live, work, and play. It offers a primer on different types of arts and culture and their inherent primary needs and secondary impacts, then proceeds to detail steps that can be taken by communities. Model regulatory language is included in the Appendix Starting on Page 41.