Making Ohio's Land Use Policies More Inclusive
by Matt Rolf - October 2021
-Housing for LGBT and multigenerational families, along with multifamily developments, have historical been discouraged by Ohio’s planning and zoning regulatory framework. It’s time to modernizing our regulatory approach with more inclusive foundations.
To the extent LGBT space has even been considered in the development of Ohio’s land use legal framework, it has not been favored. Many of the assumptions that undergird that framework are outdated and in need of revision. Modernization of Ohio’s land use statutes to accommodate both LGBT and straight family structures, in a way that enables more people to find housing that works for them, are increasingly necessary.
Ohio’s planning, zoning and land use scheme was developed in the first part of the twentieth century. At that time, cities like Cleveland were growing rapidly and undergoing massive change due to industrialization. Working-class and poor migrants from Europe and the American South settled in dense neighborhoods to work in the new economy.
These neighborhoods were a source of revulsion and fascination for the economic and political elites of the time. Houses and apartments in which multi-generational families lived in a single room were regarded as vectors for disease and poverty. Flophouses and residential hotels that catered to transient populations were considered a hotbed of immorality and a menace to “decent people.” A lack of building standards and lax inspection regime meant that many houses and apartments had real safety issues that put residents at risk.
Around this time it became fashionable for local elites to engage in “slumming,” the practice of going down to an ethnic European or black neighborhood for entertainment purposes to “see how the poor people lived”. Although slumming began as simply walking around poor neighborhoods in proximity to where the upper classes lived, it evolved into traveling further afield to attend music performances, go to bars, hang out in taverns and restaurants, or stay at hotels in search of authentic experiences.
In large cities at that time, entertainment in city establishments might involve cross-dressing or other gender-bending programs. Lesbian bars were considered attractive people-watching venues. Members of the queer community were aware of the gender performative aspects that patrons sought out, and in certain instances would tailor performances to those tastes to attract business. These spaces likely provided welcome places for queer expression in a time when sodomy had been criminalized.
Establishments that involved gender-play ran the gamut from mild stage entertainment to full-on sex work complemented by gambling or drug use. After 1905, the vice district in Cleveland developed around E. 30th and Central, in the center of the growing black community. This location was accomplished by selective enforcement on establishments by the police and civil authorities. Cleveland’s leaders vacillated between tolerating and shutting down the dives and speakeasies depending on how much disruptive behavior spilled into the streets, and how many entrepreneurs who profited from the vice were connected to the politicians in charge.
The proximity of vice to black neighborhoods unjustifiably solidified the depravity of the urban black community in the mind of the white populace. White elites contrasted their suspicions with a feeling that the country-side was a morally superior place to live and reside. In 1910 the final report of the Country Life Commission was issued by the Theodore Roosevelt administration. Roosevelt saw the white rural population as the backbone of the nation, and felt it could provide a strong moral counterweight to the depravity of the growing cities. Policies to strengthen farmers and other rural residents were preferred by his administration.
Around the same year, development of Shaker Heights as a “garden city” was begun. Built outside Cleveland, with commercialization banned, the suburb’s connection to the countryside was promoted as a cure to the ills of the modern, crowded, morally decadent city. The town’s location on land previously home to North Union Shakers suggested a purity of work, leisure, and capitalism. With the construction of Terminal Tower, and deed restrictions keeping out blacks, Jews, and other ethnic undesirables, Shaker Heights residents could live, work, and play without having to sully themselves in the moral depravity of the city.
In this way, forces that sought to restrict the mixing of different racial groups and classes of people, as well as promote monogamous heterosexuality, enforced their vision through both new development and regulation. As zoning concepts developed in the 1910’s and 1920’s, residential hotels, apartment buildings and queer establishments were places to be targeted and regulated out of existence.
It is therefore not surprising that the first Ohio zoning case involved restrictions on constructing an apartment building, as well as an unhinged rant about the dangers of urban density. In State ex rel. Morris v. City of East Cleveland, 31 Ohio Dec. 98, 1919, the Honorable J. Foran of the Cuyahoga County Court of Common Pleas, held forth for pages on the utter depravity of apartments. Among other a great many other things, the judge wrote: “[W]e must all concede that the apartment house has a destructive effect upon the birth-rate, and a tendency to race suicide,” and “If society cannot provide adequate and rapid transportation into the open spaces of the country, where children, the fathers of men and the mothers of women, can be bred and raised, surrounded by pure air and sunshine, with parks and recreation grounds, then modern civilization is a failure and we are facing the situation described by Rider Haggard in ‘The Heart of the World,’—a situation of physical decay and social death.”
In the intervening years, Ohio courts have mostly reigned in over-bearing restrictions on constructing multi-family housing, but local zoning codes, especially in wealthy areas, usually retain a preference for single-family housing. Battles have been fought over who then constitutes a family, and are thus entitled to live in the primary form of housing that is built in many communities. It will not surprise readers that local efforts to define a family in narrow fashion have regularly had to be challenged in court.
Narrow definitions of a family, which aim to prevent a certain number of unmarried people from living together, have caused problems for college students, foster homes, multi-generational families, and queer or communal families. The Ohio Supreme Court struggled to address the issue in the early 1980’s before deciding that the natural variety of families requires a broad definition: “The definitions of ‘family,’ ‘dwelling unit’ and ‘single-family dwelling’ must be carefully studied without encrusting them with the barnacles of one's own notions and prejudices of what kind of family should be living in an ‘R-1 suburban residence district.’” Saunders v. Clark County Zoning Dept., 66 Ohio St. 2d 259, 20 Ohio Op. 3d 244, 421 N.E.2d 152 (1981).
Even with a number of well-considered judicial opinions on the books, the authors of Baldwin’s Ohio Planning and Zoning Law summarize Ohio’s legal approach to land use planning and regulation as underdeveloped, erratic, or difficult to characterize. Judicial attitudes are described as not innovative, with a few notable exceptions. The treatise of Ohio Planning and Zoning Law itself may be described as somewhat out-dated in the secondary materials it cites. There is a general need for the legal community in Ohio to re-commit to serious examination of contemporary planning and zoning developments in other states, so that informed updates can be made to the state’s planning and zoning framework.
VibrantNEO 2040, a regional visioning, decision making and planning framework in Northeast Ohio, and The Land Code, Cleveland’s current attempt at developing a form based zoning code, are contemporary attempts to modernize aspects of our land use management. While VibrantNEO charts a way forward regionally, it has little chance of being implemented in whole unless it is embraced by local municipalities. Cleveland’s new form based code aims to streamline parking requirements and make it easier for developers to submit conforming designs, but is only a small part of the total land regulation picture. Neither project has yet considered planning around LGBT, multigenerational or non-traditional families.
Rewriting or implementing state regulations with modern foundations would buttress these efforts. They also need to be complemented by a re-thinking of code enforcement and an update to Ohio’s housing discrimination laws. Advocates are working to add sexual orientation and gender identity and expression as protected classes in Ohio’s housing discrimination laws through the proposed Ohio Fairness Act. The state legislature has not yet enacted new legislation on this issue despite years of activism.
It’s now time for a modern planning and zoning framework to join other modernization efforts that have already been implemented in the Revised Code. Beginning the effort from a place that discards the moral miscalculations of the past will make Ohio’s land use more efficient, better tailored to people’s needs, and more welcoming to all types of families.
By having a more realistic assessment of the diversity of housing needed for its residents, Ohio can better accommodate LGBT families, multigenerational families, and forms of multi-family housing that a hundred years ago were wrongly regarded as immoral threats to public safety. Updated planning requirements, zoning reforms, new housing & building codes, well-informed judicial opinions, updated landlord-tenant law, and revised housing discrimination protections are all needed in this endeavor.
Further reading at:
A Queer History of the United States, Michael Bronski
Living Downtown: The History of Residential Hotels in the United States, Paul Groth
Safe Space: Gay Neighborhood History and the Politics of Violence, Christina B. Hanhart
Slumming: Sexual and Racial Encounters in American Nightlife 1885-1940, Chad Heap
Men Like That: A Southern Queer History, John Howard
Just Queer Folks: Gender and Sexuality in Rural America, Colin R. Johnson
A Ghetto Takes Shape: Black Cleveland 1870-1930, Kenneth Kusmer
Ohio Planning and Zoning Law, Pearlman, Weinstein, Bredin & Ratzlaff
Call 216-666-2299
or e-mail m-rolf@mattrolfattorneyllc.com
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