Sections within this essay:Background
Types of Zoning
Permitted and Accessory Uses
Change of Zoning
Conditional Use Permits
American Association of Home Based Businesses (Residential Zoning)
National Register of Historic Places
National Trust for Historic Preservation.(Historic Zoning)
Urban Planning Institute
Zoning is the way the local governments control the physical development of land and the kinds of uses for different parcels of property. State and local governments have the power to enact statutes and ordinances, known as zoning regulations, in order to control the use of land for the protection of the public health, safety, and welfare. Zoning laws place significant limitations on the uses of the property within the defined areas or "zones" established in the particular zoning ordinance. Zoning laws typically specify the areas in which residential, industrial, recreational or commercial activities may take place. These could be residential, rural, commercial, industrial or a combination. Zoning laws often use numerical or alphabetical designations, such as CR-1; however the designation are not standard and differ from one community to another.
In addition to limiting land uses, zoning laws can also regulate the dimensional requirements for lots and for buildings on property located within the community, the density of development, and what livestock can inhabit the parcel of land. Zoning ordinances may designate certain spaces for hospitals, parks, schools, and buildings with historical significance. Zoning can also provide for restrictions on parts of certain parcels of land, such as those parcels which lie within protected peaks and ridges.
Zoning ordinances and maps are public records. The zoning information is listed on the tax records in most localities. These records can be located at the local tax assessor's office and are often online.
Zoning categories and symbols vary among communities. A C-1 zone in one city is not necessarily the same as a C-1 in another. Typically, jurisdictions use letters of the alphabet as code abbreviations to identify the use allowed in a physical geographic area, such as R for residential, C for commercial, and I for industrial. These symbols are usually paired with some number. The number can specify the level of use, or it may indicate a certain amount of acreage or square footage for that particular property.
Residential zoning can include Single Family Residences (SFR), Suburban Homestead (SH), or any number of other designation which cover homes, apartments, duplexes, trailer parks, co-ops, and condominiums. Residential zoning can cover the issues as to whether mobile homes can be placed on the property and the number of such structures.
Zoning laws typically limit the type of animals allowed at a residence. While domestic pets, such as dogs, birds, and cats, are generally not regulated, chickens, sheep, horses, llamas, pigs, and cows are subject to certain requirements. Many ordinances prohibit keeping these farm animals in residential neighborhoods. Others limit the number of animals based on the size of the property.
Zoning laws on home-based businesses can depend on the nature of the business, whether there are employees or business invitees, the hours of operation, signage, parking and delivery concerns, and noise issues. Some zoning ordinances prohibit all in-home businesses in residential areas. Others restrict the type of business, the hours, and may require separate parking and entrance facilities. Rules regarding home-based businesses for condominiums are typically even more restrictive than private residences.
Commercial zoning usually has several categories and is dependant upon the business use of the property and often the number of patrons. Office buildings, shopping centers, nightclubs, hotels, certain warehouses, some apartment complexes, as well as vacant land that has the potential for development into these types of buildings can all be zoned commercial. Almost any kind of real estate except single-family home and single-family lots can be regarded as commercial real estate.
The availability of parking may affect the type of commercial zoning that is permitted. Additionally, there can be rules regarding the proximity of certain types of businesses to others. Many zoning laws prohibit or restrict adult entertainment establishments to a certain geographical area. Others bar such establishments within a certain distance of existing schools or churches.
Like commercial zoning, industrial zoning can be specific to the type of business. Environmental factors including noise concerns usually are issues in determining into which industrial level a business falls. Manufacturing plants and many storage facilities have industrial zoning. Certain business, such as airports, may warrant their own designation.
Industrial Zoning is often dependent upon the amount of lot coverage, which is the land area covered by all buildings on a lot, and building height. Additionally, set-back requirements are higher for industrial zoned properties.
Agricultural zoning is generally used by communities that are concerned about maintaining the economic viability of their agricultural industry. Agricultural zoning typically limits the density of development and restricts non-farm uses of the land. In many agricultural zoning ordinances, the density is controlled by setting a large minimum lot size for a residential structure. Densities may vary depending upon the type of agricultural operation. Agricultural zoning can protect farming communities from becoming fragmented by residential development. In many states, agricultural zoning is necessary for federal voluntary incentive programs, subsidy programs and programs that provide for additional tax abatements.
This designation is often used for farms or ranches. In certain parts of the country, this designation will include residences zoned to allow horses or cattle.
Any of the designations can be combined to form some sort of combination zone, many of which are unique to the community adopting the particular designation.
Homes and buildings over fifty years old are often included in historic zones. These zones have regulations, which prevent the alteration of the structures from the original conditions, although there are allowances for repair and restoration in keeping with the historic plan. Frequently, buildings in these areas can qualify for governmental tax incentives.
The National Register of Historic Places is the U. S. official list of cultural resources worthy of preservation. Authorized under the National Historic Preservation Act of 1966, the National Register is part of a national program to coordinate and support public and private efforts to identify, evaluate, and protect historic and archeological resources. Properties list-ed in the Register include districts, sites, buildings, structures, and objects that are significant in U. S. history, architecture, archeology, engineering, and culture. The National Register is administered by the National Park Service, which is part of the U. S. Department of the Interior. The National Register accepts applications for buildings, which meet certain specific historic requirements.
Owners of properties listed in the National Register may be eligible for a 20% investment tax credit for the certified rehabilitation of income-producing certified historic structures such as commercial, industrial, or rental residential buildings. This credit can be combined with a straight-line depreciation period of 27.5 years for residential property and 31.5 years for nonresidential property for the depreciable basis of the rehabilitated building reduced by the amount of the tax credit claimed. Federal tax deductions are also available for charitable contributions for conservation purposes of partial interests in historically important land areas or structures.
Increasingly popular in upscale communities, this sort of zoning covers color schemes, landscaping, mailboxes, fences, solar panels, decks, satellite dishes, and types of materials. Esthetic zoning ordinance may require that building plans be submitted and approved by an architectural review committee. Wireless communication receiving devices can often be impacted by these types of zoning rules.
Permitted and Accessory uses are built-in exceptions within a certain zoning category. For example, a property which is not zoned for a bar may have a bar which is connected to the hotel as accessory or permitted use.
If the zoning on a parcel of land is inconsistent with the use the land owner desires, the owner may apply to the local jurisdiction for a change of zoning. Each jurisdiction has its own rules and regulations. However, there is typically an application and a fee, followed by some type of hearing at which the owner presents the request and the reasons for the requested change. Surveys, drawings, photographs, and even models can be used to convey the proposed plan. Many owners hire engineers or lawyers to assist with the rezoning process.
If the owner is unsuccessful in obtaining the change, there may be a possibility to appeal the action either within the administrative structure of the governmental body or in a court of law.
A variance is a request to deviate from current zoning requirements. If granted, it permits the owner to use the land in a manner not otherwise permitted by the zoning ordinance. It is not a change in the zoning law. Instead, it is a specific waiver of requirements of the zoning ordinance.
Typically, variances are granted when the property owner can demonstrate that existing zoning regulations present a practical difficulty in making use of the property. Each jurisdiction municipality has rules for variance requests. Usually, the land owner seeking the variances files a request or written application for a variance and pays a fee. Normally, the requests go first to a zoning board. The zoning board notifies nearby and adjacent property owners. The zoning examiner may then hold a hearing to determine if the variance should be granted. The applicant may then be required to appear before the governing body of the municipality, such as a city council, for the final determination.
A nonconforming use is a permitted use of property which would otherwise be in violation of the current zoning ordinance. The use is permitted because the land owner was using the land or building for that use before the zoning ordinance became effective. Nonconforming uses are often referred to as being "grandfathered in" to a zoning code. In order to qualify for nonconforming use, the property almost always needs to have had the use continuously. Thus, if the businesses closes and the use lapses for any time, the permission for the nonconforming use could vanish.
Similar to variances, conditional use permits allow an otherwise non-permitted use of the property that the zoning code does not include. Conditional use permits are usually granted at a public hearing before a political body, usually with the conclusion that the new use of the property will be in the public interest.
Eminent domain is the power of government to take private property and use it for public purposes. The power of eminent domain is recognized in the United States Constitution, which prohibits the taking of private property "without just compensation." The federal constitutional provision recognizing the power of eminent domain implies the requirement that property be taken for a "public use."" Public use includes the traditional government activities of building roads, government and public facilities such as government buildings and parks, as well as more generally beneficial activities assured through protection of scenic areas, wetlands, and historic landmarks.
If the government zones a piece of property such that the property owner can no longer effectively use the parcel of land, this provision may be applicable. The property owner may be able to sue for compensation because the land has been "taken" by the government. This is commonly referred to as "a taking." Just compensation is difficult to determine. By definition, it is the fair market value that a property owner would receive if the property were being sold without the zoning restrictions in place. If the government and the property owner are unable to agree on the fair market value, the property owner can file suit and hire a certified appraiser to give testimony concerning the value.
Daniels, Thomas L. and Keller, John W., Lapping, Mark B. The Small Town Planning Handbook. American Planning Association, 1995.
Davidson, MichaelA Glossary of Zoning, Development and Planning Terms American Planning Association, 1997.
Fischel, William A. The Economics of Zoning Laws: A Property Rights Approach to American Land Use Controls. Johns Hopkins University Press, 1987.
Harr, Charles Monroe and Kayden, Jerold S. Zoning and the American Dream: Promises Still to Keep. American Planning Association, 1989.
Siegan, Bernard H.Property and Freedom: The Constitution, the Courts, and Land-Use Regulation. Bowling Green State University, 1997.
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The separation or division of a municipality into districts, the regulation of buildings and structures in such districts in accordance with their construction and the nature and extent of their use, and the dedication of such districts to particular uses designed to serve thegeneral welfare.
Zoning, the regulation of the use of real property by local government, restricts a particular territory to residential, commercial, industrial, or other uses. The local governing body considers the character of the property as well as its fitness for particular uses. It must enact the regulations in accordance with a well-considered and comprehensive plan intended to avoid arbitrary exercise of government power. A comprehensive plan is a general design to control the use of properties in the entire municipality, or at least in a large portion of it. Individual pieces of property should not be singled out for special treatment. For example, one or two lots may not be placed in a separate zone and subjected to restrictions that do not apply to similar adjoining lands.
Zoning ordinances divide a town, city, village, or county into separate residential, commercial, and industrial districts, thereby preserving the desirable characteristics of each type of setting. These laws generally limit dimensions in each zone. Many regulations require certain building features and limit the number and location of parking and loading areas and the use of signs. Other regulations provide space for schools, parks, or other public facilities.
Zoning helps city planners bring about orderly growth and change. It controls population density and helps create attractive, healthful residential areas. In addition, zoning helps assure property owners and residents that the characteristics of nearby areas will remain stable.
In some states a municipality has the right to be heard on proposed zoning in an adjoining community. Courts have upheld this so-called extraterritorial zoning as an exercise of the police power of the state, with the goal of serving the general welfare of both communities and creating harmony among the uses of a given area, without regard to political boundaries.
Following the lead of New York City, which passed the first major zoning ordinance in 1916, most urban communities throughout the country have enacted zoning regulations.
Zoning is not merely the division of a city into districts and the regulation of the structural and architectural designs of buildings within each district. It also requires consideration of future growth and development, adequacy of drainage and storm sewers, public streets, pedestrian walkways, density of population, and many other factors that are within legislative competence.
building codes, which govern the safety and structure of buildings, do not contradict zoning ordinances, but exist side by side with them. Both rest on the police power: zoning stabilizes the use of property, and building codes ensure the safety and structure of buildings. Zoning is intended to have a relative permanency, whereas building codes are much more flexible because they must keep abreast of new materials and other technological advances.
Municipalities have power to zone property only if a state grants it by statute or it is derived from constitutional provisions. Zoning ordinances must be reasonable because by their nature they restrain the use of property that the owners could otherwise use as they chose. The landowner cannot complain as long as the power to zone is used in the public interest and for the general welfare of the community impartially and without compensation.
The regulations must meet the demands of the constitutional prohibition against taking private property for public use without just compensation as mandated by the Fifth and Fourteenth Amendments to the U.S. Constitution as well as by the constitutions of the states. The U.S. Supreme Court decided three cases that have had considerable impact in this area: Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 112 S. Ct. 2886, 120 L. Ed. 2d 798 (1992), Lujan v. National Wildlife Federation, 497 U.S. 871, 110 S. Ct. 3177, 111 L. Ed. 2d 695 (1990), and Dolan v. City of Tigard, 512 U.S. 374, 114 S. Ct. 2309, 129 L. Ed. 2d 304 (1994). The decisions made it more difficult for municipalities to require that land developers give up part of their property for public purposes, such as access to lake shores, sidewalks, access roads, and parks. If the government needs the land, it must compensate the owner by exercising its power of eminent domain and condemning the property.
Courts have held that a zoning regulation is legal or valid if it is reasonable and not arbitrary and bears a reasonable and substantial relation to the public health, safety, comfort, morals, and general welfare and if the means employed are reasonably necessary for the accomplishment of its purpose. An ordinance is invalid if its enforcement will preclude use of the property for any purpose to which it is reasonably adapted. In determining whether a regulation is reasonable, no single factor is controlling. Those factors normally considered are need for the adoption, the purpose, location, size, and physical characteristics of the land, and the character of the neighborhood. Also considered are the effect on the value of property, the amount by which property values are decreased, the notion of the general welfare (that is, what is best for the community at large), and the density, population, and aesthetics of the area. Traffic, use of nearby land, and length of time the property has been vacant are also relevant.
An ordinance that is reasonable when enacted may prove to be unreasonable, and hence may be set aside by a court, if circumstances have changed. Zoning regulations must promote the good of all the people in the community rather than further the desires of a particular group, and the power cannot be invoked to further private interests that conflict with the rights of the public. Restrictions based solely on race or occupancy of property within certain districts are invalid. A classification that discriminates against a racial or religious group can only be upheld if the state demonstrates an overwhelming interest that can be served no other way. The regulation must be clear and specific. It must describe districts with certainty, and if maps are necessary, it should include references to them. The standards governing conduct of the administrator must be clear. The fact that regulations have not been enforced does not prevent their enforcement. Only persons whose rights are injured by regulations may attack them. An invalid enactment is without effect and confers no rights and imposes no duties.
Regulations must be in accordance with a comprehensive plan, which may be separate or part of the zoning regulation. Spot zoning of individual parcels of property in a manner different from that of surrounding property, primarily for the private interests of the owner of the property so zoned, may be improper but not illegal in all cases. Spot zoning disregards the requirement that zoning be in accordance with a comprehensive plan. It may be valid if there is a reasonable basis for distinguishing the parcel from surrounding parcels.
Zoning regulations may validly prescribe a type of building, location of utility lines, restrictions on accessory buildings or structures, and preservation of historical areas and buildings. General rules of construction apply to restrictions affecting architectural and structural design of buildings and open spaces. Such rules apply to building setbacks from the streets and other boundaries, size and height of buildings, number of rooms, floor space or area and cubic feet, and minimum cost of buildings. They also apply to frontage of lots, minimum lot area, front, rear, and side yards, off-street parking, the number of buildings on a lot, and the number of dwelling units in a certain area. Regulations may restrict areas to single-family homes or to multifamily dwellings or townhouses. An ordinance may permit the construction of a building intended for nonresidential use, such as a school, church, hospital, or charitable institution, in a residential district.
Municipalities have gained some flexibility in their regulations by authorizing special use permits in certain districts. This gives them the power to impose restrictions and requirements that might not otherwise be possible under the strict classification of the district.
It is also possible to create a unit development in an entire district or a large part of one, with plans and restrictions governing the entire project. This arrangement may mix some commercial and residential uses and "clustering" of certain properties, leaving room for green spaces and parkways.
A municipality may use broad discretion to fix the location and boundaries of business, commercial, and industrial districts and has the power to review and periodically update zoning regulations. This should be done whenever growth and progress require. Failure or refusal to make a change in regulations when they are clearly appropriate in view of development may be regarded as unreasonable, arbitrary conduct. Only the legislative body empowered to enact zoning regulations has the power to amend them. This must be done with the same formality, including required notices and hearings, as the original enactment. Neither the courts nor boards of zoning appeals should undertake such amendment, regardless of how archaic the regulations may be.
Zoning ordinances may permit or prohibit certain uses and may create whole districts devoted only to residence, commerce, or industry. When a structure's use does not conform to a zoning ordinance but the structure existed before the adoption or amendment of the ordinance, the structure has nonconforming use status, sometimes called legal nonconforming use. A vested legal nonconforming use is safeguarded by the Constitution unless it is abandoned or terminated. It is a property right that cannot be taken away without just compensation. However, the nonconforming use structure may not be expanded, its use may not be changed, and, under many laws, if it is destroyed by fire or other cause, it may not be rebuilt.
Zoning regulations are subject to interpretation by the courts where their meaning is unclear. Because such laws are in derogation of the common law, they are to be construed strictly, but they should receive a reasonable and fair construction in the light of the public good they propose to serve.
Boards of zoning appeals are created by statutes. They are quasi-judicial bodies because they conduct hearings with sworn testimony by witnesses and a transcript is made, which courts may review. Municipalities generally require permits for building or remodeling and certificates of occupancy after inspection discloses conformity with applicable codes. An owner without legal training who contests a zoning requirement would be ill-advised to try to argue his case alone because the members of the board, the municipal attorney, and the planning official have long experience, knowledge of the law, and a built-in tendency to favor their interpretations of the ordinances.
Where full compliance with the strict letter of the ordinance works a hardship on the owner, the board of appeals or governing body may grant a variance, which is toleration of a slight violation of the ordinance. The owner, however, may not create her own hardship by willfully violating the law.
Zoning regulations may be enforced by mandamus, an action that results in a judgment of a court compelling the appropriate public officers to carry out their duty; by injunction, which results in a court order forbidding the use or structure that is in violation; and by civil forfeiture actions or criminal prosecutions. Adjoining owners or citizens at large may have standing to enforce the ordinances where the municipal officers fail to do so. Some ordinances provide for a certain sum to be paid to the municipality for each day of violation. Some courts enforce these penalties strictly, whereas others are more lenient, as long as compliance with the ordinances is achieved in a reasonable time.
Brown, James J. 2002. "Land-Use Planning and Zoning" Stetson Law Review 31 (winter).
Burke, Barlow. 2002. Understanding the Law of Zoning and Land Use Controls. Newark, N.J.: LexisNexis.
Crocker, Karen L. 2002. "Vested Rights and Zoning: Avoiding All-or-Nothing Benefits." Boston College Law Review 43 (July).
Lewyn, Michael. 2003. "Twenty-First Century Planning and the Constitution." University of Colorado Law Review 74 (spring).
Rathkopf, Arden H. and Daren A. 2001. Rathkopf's the Law of Zoning and Planning. St. Paul, Minn.: West Group.
Sullivan, E. J. 2001. "The Evolving Role of the Comprehensive Plan" Urban Lawyer 32 (fall).
When a local government decides how to allocate land uses it acts under the police power exercised by the states and their governmental subdivisions to regulate for the public health, safety, and welfare. The first zoning ordinances appeared early in the twentieth century as a result of urbanization and the encroachment of factories and noxious uses in residential neighborhoods. In euclid v. ambler realty (1926) the Supreme Court upheld a comprehensive local zoning ordinance, rejecting a substantive due process attack. Although today's zoning ordinances are more sophisticated than the simple division of land uses upheld in Euclid, the basic constitutional issues raised by zoning decisions remain an unusually stable area of constitutional law.
Because a zoning ordinance is adopted by a legislative body, and because zoning amendments are legislative decisions in most states, the constitutional scrutiny applied to zoning is no different from that applied to legislation at any governmental level. The courts use the due process analysis of Euclid to uphold zoning if they find a reasonable relationship between the zoning and the city's police power objectives. Like other social and economic legislation, zoning comes to court clothed with a presumption of validity. A court will not question the wisdom or the motives of legislators. If a court finds any rational basis to support zoning as an implementation of the public health, safety, and welfare, the ordinance will be held valid. A court considers factors such as increased traffic and congestion, compatibility with adjacent uses, and impact on land values of neighboring properties. Courts often apply a fairly debatable rule: if reasonable minds can differ on the reasonableness of an ordinance, the municipal decision must be upheld. Some state courts are more willing than the federal courts to use theories of state constitutional law to strike down zoning regulations.
Although a court may be reluctant to question the police power objectives of zoning, it may be more inclined to examine the effects of a zoning restriction on the value of property. Even when a zoning ordinance achieves public objectives, it may be held to be a taking of property if it denies a property owner all economic use of his land. The leading case is Pennsylvania Coal Co. v. Mahon (1972).
Other guarantees may also serve as bases for constitutional challenges to zoning ordinances. The first amendment repeatedly forms the basis of attacks on local sign ordinances and ordinances regulating adult businesses. In the 1960s and 1970s, a series of "exclusionary zoning" cases challenged a municipal refusal to rezone to allow mobile homes, apartments, or anything other than single family homes on large lots. Arguing that such practices violated the equal protection clause, landowners and hopeful future residents had varying success. The Supreme Court was originally not interested in fashioning a federal constitutional remedy. In arlington heights v. metropolitan housing development corp. (1977) it severely restricted the authority of the federal courts to find racial discrimination in exclusionary zoning. Some state courts have been more aggressive. In Southern Burlington County NAACP v. Mount Laurel (1975), for example, the New Jersey Supreme Court held, on both substantive due process and equal protection grounds, that a municipality cannot close its doors to the housing needs of the region, including low-cost housing. Then, in Cleburne v. Cleburne Living Center, Inc., (1985) the Supreme Court gave some indication that it would examine more rigorously the exclusionary classifications in zoning ordinances.
Zoning ordinances also require landowners to obtain development permission under a host of administrative procedures that vary from one jurisdiction to another. Whether it be subdivision or site plan approval, variances, special or conditional uses, or environmental permits, the process is rife with constitutional pitfalls for local administrative bodies. The standards for approving or denying permits must be made specific in the ordinance; otherwise, a state court may hold that the ordinance unconstitutionally delegates legislative authority to an administrative body. Applicants must be given procedural due process, including notice and an opportunity to be heard, and, in some states, even quasi-judicial procedures. The agency's decision must be based on evidence sufficient to support it.
Perhaps the most serious danger to the constitutional status of zoning is the threat of a radical departure in the judicial relief afforded a victorious landowner. Under the separation of powers doctrine, the traditional judicial relief for invalid zoning has been to grant an injunction prohibiting its enforcement and allow the municipality to rezone. A few courts in the 1970s held that confiscatory zoning amounted to taking of property for public purposes and required cities to compensate landowners. The Supreme Court has not yet decided the availability of this remedy under the federal Constitution.
Damages for a taking may be available under section 1983, title 42, united states code. In monell v. department of social services (1978) the Supreme Court held that municipalities can be sued under Section 1983, and the specter of money damages for any denial of constitutional rights in the zoning process became a reality. The damage to a landowner whose economic return is restricted by zoning and who must proceed through a time-consuming local zoning process perhaps including litigation can be substantial. The traditional constitutional deference afforded local government under its police power remains, but the possible consequences of stepping outside constitutional bounds have become severe.
Zoning ordinances now include sophisticated techniques, such as computer-based point systems for approving new development, incentive and bonus programs, and the transfer of development rights. These new techniques have not yet been extensively tested in the courts, but they raise constitutional problems similar to those raised by conventional zoning. Judicial attention in the years to come will focus on the constitutionality of these techniques and on the suitability of a damage remedy in zoning cases.
Daniel R. Mandelker
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Williams, Norman, Jr. 1974 American Land Planning Law. Chicago: Callaghan Co.
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