Overlay Districts are Everywhere
Overlay districts seem to be everywhere in Georgia. Nearly every urbanized jurisdiction in the State now uses some form of overlay districting to add flexibility and new design standards into its traditional zoning code. But what exactly are overlay districts and how are they employed by local governments? The first thing to note about overlay districts is that the “overlay” designation characterizes a type of geographic zoning but is not itself a zoning district with substantive components like setback requirements and permitted uses. Overlay districts are placed over an existing zoning district, hence the term “overlay,” and may impose additional restrictions on uses in the district or permit uses that may otherwise be disallowed in the underlying district or to also make more restrictions. Thus, to say a district is zoned “overlay” would be incorrect. Using Gwinnett County as an example, a more accurate statement would be that a district is zoned R-100, single-family residential, with a “Conservation Subdivision Overlay District” superimposed which adds additional development regulations to the underlying R-100 district. The overlay supplements the existing zoning, such as allowing for smaller lot size but not increasing density.
Overlay districts can be a valuable tool for public officials looking to implement goals and objectives of the community. The appeal of overlays is their flexibility and adaptability. They allow local governments to maintain current zoning codes while addressing the special needs of particularly susceptible areas. Overlays come in all shapes and sizes and are adopted for a wide variety of reasons depending on the needs of the community. In Georgia, overlay districts have been used to implement incentive bonus programs, encourage mixed use development projects and innovative urban design standards, and preserve historic and natural resources. For instance, the Beltline Overlay District in the City of Atlanta has been superimposed over a wide range of zoning districts along the proposed Beltline Corridor which runs in a 22-mile perimeter around the city center. The Beltline Overlay proposes to redevelop and reconnect urban communities by encouraging pedestrian-oriented, mixed-use development and alternative modes of transportation. The overlay, however, does not change the use but can change the density regulations of the existing underlying zoning. It simply incorporates new design standards, such as new pedestrian paths and tree-lined streetscapes, and incentive programs into existing districts and may increase height allowance to allow for greater overall density.
Where increased setbacks or dedicated right of way occurs, the local government should allow the property owner to transfer the lot density somewhere else on the property to avoid a takings claim.
Overlay districts are created and governed by local ordinance and must be approved by a local governing authority such as a city council or county commission. Most local governments require procedures for the adoption and amending of an overlay to be in accordance with the minimum procedures set forth in the Zoning Procedures Law (O.C.G.A. § 36-66-1 et seq.). Although an overlay ordinance is distinguishable from a traditional zoning ordinance, it does qualify as a zoning decision under state law. Once adopted, the overlay is placed on the official zoning map for the jurisdiction and may also be placed on a separate overlay district map. The overlay ordinance generally sets forth the purposes, uses, and restrictions in the overlay and the procedures governing its adoption and subsequent amendment. The local ordinance will likewise specify what effect the overlay has on the existing restrictions in the underlying district. In most instances, the overlay adds additional regulations and design standards to an existing zone. The overlay may, however, deemphasize strict underlying regulations to incentivize new development if the purpose of the overlay is to spur economic redevelopment in a targeted area. The overlay’s effect on current zoning restrictions generally depends on its purpose.
To help administer overlays, many jurisdictions have appointed special design or review boards to ensure that the overlay’s new regulations and standards are being followed. The City of East Point, for example, has created a Downtown Architectural Review Board to review development plans in its Downtown Overlay District for compliance with the overlay’s purpose and design standards. Conflicts may also arise with overlay districting because two zones with two sets of restrictions overlap. If provisions in the underlying zone and the overlay conflict, the overlay provisions will usually control. This too, however, is controlled by ordinance and may differ depending on the district or jurisdiction. In the City of Atlanta, for instance, the Beltline Overlay ordinance provides that when the overlay and the underlying zoning conflict, the overlay regulations apply absent explicit language to the contrary. To compare, the City of Roswell’s Historic overlay district states that when the underlying zone and the overlay conflict, the “less restrictive or more liberal use requirements shall prevail.” Roswell, Georgia Municipal Code, § 12.4.
The boundaries of the overlay district will be shown on a local government’s zoning map and may or may not coincide with the boundaries of the underlying zone. The overlay may spread into nearby districts so long as the overlay is permitted in the underlying district. Several jurisdictions in the State allow overlays only in specified residential districts. For instance, Gwinnett County only allows Conservation Subdivision overlays in two of its several singlefamily residential districts. Typically, individuals located in a district with an overlay must abide by both the underlying zoning ordinance and the overlay restrictions unless the ordinance provides otherwise. It may also be the case that one lives in a district with an underlying zoning and two or more overlay designations. The City of Roswell recognized that some of its residents could be in this situation where their properties were controlled by three sets of permissions and development standards from an underlying zoning, a Historic Properties overlay and a Midtown Roswell overlay. The ordinance allows a resident in this situation to choose which set of regulations he or she will follow but prohibits the resident from picking and choosing the most favorable regulations from among the three districts. Roswell, Georgia Municipal Code, § 12.3.7.
The jury is still out as to whether overlays will be as successful in Georgia as they have been elsewhere across the country. Many local governments in the State seem to have embraced the concept of overlays therefore ensuring that successful or not, overlays will be around for at least the near future. And perhaps in communities that need innovative solutions to counter sprawled development and urban blight, overlays will provide a good first step in transitioning to new zoning techniques and quality growth management strategies.