Chapter 7

Zeroing In on Zoning

In This Chapter

Looking at how zoning ordinances regulate use, height, and bulk

Understanding nonconformities and conditional use permits

Examining how zoning ordinances are adjusted by variances and amendments

Governments can adjust property rights by regulation, so understanding the rights of property ownership requires understanding regulatory restrictions on land use. The most common form of public property regulation is zoning, which is why this chapter gives you the nitty-gritty of how zoning codes work and how zoning restrictions can be tailored for specific properties.

Discovering Who Typically Regulates Land Use

The police power is the general power of the states to pass laws for the benefit of the public. This power, which is reserved to the states by the Tenth Amendment of the U.S. Constitution, includes the power to regulate land use within their boundaries. Consequently, the federal government doesn’t directly regulate land use on private property. But of course, federal laws may certainly affect land uses.

The states may regulate land use in a variety of ways intended to benefit the public. For example, state law may regulate land use in coastal areas to preserve such sensitive areas for the public. However, state legislatures in every state have passed enabling acts, statutes that delegate to counties and cities the authority to regulate land use. As a result, most land use regulation comes from counties and cities.

Regulating the Big Three: Use, Height, and Bulk

Zoning ordinances, the most prominent form of local land use regulation, are laws that group compatible land uses together. These ordinances may preserve quiet and safety in residential areas, minimize and manage traffic, reduce fire risks, maintain open space and views . . . you get the idea.

A typical zoning code has two parts: a textual ordinance that specifies the regulations for all the different zoning district designations and a zoning map that shows the zoning district designation for each parcel of land throughout the city or county.

Zoning ordinances traditionally regulate the following:

Use: They limit the uses permitted on certain land.

Height: They limit the size of buildings on the land.

Bulk: They limit the size of lots and the placement of buildings on those lots.

Modern zoning regulations may include other types of restrictions as well, such as architectural design regulations that are intended to ensure new buildings are architecturally compatible with existing buildings in the area.

The terminology may vary, but a typical zoning ordinance designates residential, commercial, industrial, and agricultural zoning districts. Within each of these categories, an ordinance may include a number of different zoning designations with increasingly permissive use restrictions. For example, a simple zoning ordinance may contain the following residential districts:

An R1 zoning district allowing only single-family homes

An R2 district allowing one- or two-family homes

An R3 district allowing multiple-family dwellings

An ordinance may further refine these zoning designations by specifying different height and bulk limitations in different zones. Common bulk limitations include

Floor-area ratio (the ratio of floor space to lot size)

Minimum floor space

Minimum lot size

Requirements that buildings be set back a minimum distance from lot boundaries

An ordinance may specify several zones allowing the same uses but with different combinations of height and bulk restrictions. For instance, it may specify an R1-21 zone that allows single-family homes on lots no smaller than 21,000 square feet.

The traditional zoning ordinance is cumulative, meaning that higher uses (those that are less intensive and less likely to be objectionable) are allowed in lower-use zones. For example, a single-family house may be built in a commercial zone, but a commercial building may not be built in a residential zone. However, modern ordinances commonly make uses noncumulative or exclusive, meaning that higher uses aren’t allowed in lower-use zones. For example, even if they want to, landowners can’t build single-family houses in a noncumulative or exclusive commercial zone.

Protecting Nonconformities from New Zoning Restrictions

When a zoning ordinance is adopted or amended, it generally allows preexisting structures and uses of property to continue even if they don’t comply with the new restrictions. Such preexisting uses that aren’t consistent with the otherwise applicable zoning restrictions are called nonconformities, or nonconforming uses. For example, if an area is rezoned to a single-family residential zoning designation, an existing apartment building in that zone would be a nonconformity.

Zoning ordinances protect nonconformities because lawmakers feel that compelling a property owner to immediately terminate an existing use or destroy an existing structure is unfair to those who have relied on the previous state of the law. Lawmakers also fear that doing so may be considered a taking of private property for public use, meaning the ordinance may unfairly deprive an owner of so much of the property’s value that it would require just compensation under the Fifth Amendment.

By definition, nonconformities are inconsistent with the zoning around them and therefore interfere with zoning objectives. Zoning ordinances consequently may restrict nonconformities in a number of ways, both to minimize the negative effect on the surrounding area and ultimately to eliminate the nonconformities. Here are some of the most common restrictions:

The nonconforming use of the property may not be changed to a different nonconforming use. Any new use of the property must comply with the requirements of the zoning district.

Nonconforming structures may not be enlarged.

The owner may not rebuild the nonconforming structure or resume the nonconforming use if the structure is destroyed.

The owner may not resume the nonconforming use after a specified period of nonuse, such as one year.

The owner must discontinue the nonconforming use after a specified period of time. Such provisions are commonly called amortization periods. Courts generally allow amortization periods if they’re reasonable based on how the property is used and the financial impact on the property owner.

Permitting Conditional Uses

A typical zoning ordinance specifies not only uses that are permitted in each zoning district but also other uses that may be specially permitted only if certain specified conditions are met. Such uses are called conditional uses or special exceptions.

A property owner who wants to use her property for such a conditional use must first obtain a conditional use permit. Today, most zoning ordinances charge an administrative body called a planning commission with the authority to grant conditional use permits, but some ordinances give that authority to a board of zoning adjustment or even to the local legislative body.

The commission or other body holds a hearing, at which the property owner may present evidence that her use of the property meets the specified criteria for a conditional use permit. Other people, typically other property owners in the neighborhood, may attend the hearing and argue against granting the permit. The commission considers the information presented at the hearing, along with the review and recommendations of the locality’s planning staff, and decides whether to grant or deny the permit. The commission may grant the permit subject to conditions intended to ensure compliance with the criteria for approval of such a permit.

Zoning ordinances typically make a use conditional when it’s considered appropriate in a certain zoning district — but only if it complies with certain conditions that reduce negative effects on the area. A group rehabilitation home, for example, may be considered appropriate in a residential zone as long as it doesn’t negatively affect traffic and safety. The local zoning ordinance may include relatively specific conditions, such as that another such use may not be within 500 feet of the proposed use. It may also include relatively general conditions, such as that the use must not impair property values in the area.

If a condition to granting a permit is too general and vague, such as one requiring the use of the property to be “consistent with the public interest,” it may be unconstitutional. A legislative body can constitutionally delegate its authority to an administrative body only if it provides sufficient guidance directing the administrative body’s decisions; the legislative body can’t simply surrender its legislative power. A court may hold that merely telling the administrative body to decide whether a use is “consistent with the public interest” isn’t enough guidance about when the legislative body has decided the use should be allowed and therefore is an unconstitutional delegation of legislative power.

Avoiding Unnecessary Hardship with Variances

Administrative exceptions to zoning regulations are called variances. Whereas conditional use permits are available for uses that the zoning ordinance specifically allows when the listed conditions are met, variances permit uses that the zoning ordinance doesn’t allow. Two types of variances exist:

The area variance: This variance allows a property owner to depart from otherwise applicable restrictions concerning the height or size of buildings or their location on the property. For example, an area variance might allow a house to be built 15 feet from the front of the lot even though the zoning ordinance says houses in that district must be set back at least 20 feet from the front of the lot.

The use variance: This variance allows the owner to use the property in a way that would otherwise be prohibited in the zone. For example, a use variance might allow a house in a residential district to be used as a professional office.

Some jurisdictions don’t allow use variances. Those that do allow them are commonly more liberal in granting area variances than use variances.

Although the requirements for granting variances differ among jurisdictions, one common statutory standard is that a variance may be granted when, “owing to special conditions, a literal enforcement of the ordinance will result in unnecessary hardship.” Whether by judicial interpretation of this general statutory phrase or by more specific expression in the ordinance, jurisdictions generally apply the same three basic requirements for granting variances:

The owner can’t obtain a reasonable return from the property as zoned.

The inability to obtain a reasonable return is the result of unique conditions of that particular property.

Granting the variance won’t alter the essential character of the locality.

The following sections provide guidance on each of these typical criteria for granting variances.

Demonstrating inability to reasonably use the land as zoned

A variance may be granted if enforcement of the ordinance prevents a property owner from obtaining a reasonable return on her investment in the property. The owner must show that none of the uses permitted by the zoning ordinance is economically feasible, not just that the zoning ordinance is preventing the owner from maximizing the property’s value. Some authorities suggest that the economic hardship must be so great that the regulation could be challenged as a taking of private property for public use, requiring just compensation under the Fifth Amendment. (Chapter 8 explains when the Fifth Amendment’s Takings Clause requires just compensation for land use regulations.)

A variance may be granted only if the enforcement of the ordinance causes the hardship. So if a property owner’s own actions cause the hardship, the board may not grant a variance. For example, if a property owner divides a parcel of land so that one of the divided parcels is too small to feasibly develop without a variance, the board isn’t authorized to grant a variance to relieve such a hardship.

Explaining why unique conditions require a variance

Although ordinances differ in their expression of the requirement, a board of zoning adjustment may grant a variance only if unique physical conditions of the land, such as its surroundings or its topography, prevent the land from being reasonably used as zoned. If the hardship isn’t due to unique conditions and instead would be a problem for many of the properties in the zone, then making exceptions for all similarly situated property would destroy the entire zoning scheme. In that case, the appropriate remedy is generally not to seek a variance but to seek a rezoning of the area.

Imagine a particular parcel of land in a residential zone with an unusually steep, rocky backyard. Because a house couldn’t feasibly be built on the steep, rocky portion of the lot, complying with the zoning ordinance’s height limitations and minimum setback requirements from the side and front lines of the parcel would make the house so small that it wouldn’t be marketable. In general, the other properties in the zone don’t have this problem with steep, rocky backyards. In such a case, the board could grant a variance allowing the house to be taller or nearer to the side and front lot lines.

Avoiding alteration of the essential character of the locality

A board of zoning adjustment may grant a variance only if the variance won’t alter the essential character of the area. For example, even if an owner of property in a residential zone shows that her property can’t feasibly be used for residential purposes, a board may not grant a variance allowing her to use the property for a retail store if a retail store in that location would harm the essential residential qualities of the neighborhood, such as by increasing traffic too much.

Many statutes expressly require the hardship to be “unnecessary” in order to grant a variance. If the hardship can be relieved without altering the essential character of the area, the hardship is unnecessary because the ordinance can accomplish its purpose without causing such hardship. But if a variance would alter the essential character of the area, the individual hardship is a necessary cost of accomplishing the primary purpose of the zoning ordinance, which is to preserve that essential character. In these cases, the variance must be denied.

Often boards of adjustment grant variances even though the property owner hasn’t met the statutory criteria, maybe because they don’t know or understand the law, because they don’t care about the law, or because they have personal or political reasons. Although a board of adjustment doesn’t legally have authority to grant a variance when the statutory criteria aren’t met, no court will review the decision unless some aggrieved neighbor initiates a lawsuit.

Amending Zoning

State law grants city and county legislative bodies (typically called county commissions or city councils) the authority to adopt zoning ordinances. That authority, of course, includes the power to amend the ordinances after they’re initially adopted.

The legislative body can initiate consideration of zoning amendments, but often individual landowners petition the legislative body to amend the zoning ordinance to allow some desired use. A landowner may request two types of amendments:

Map amendment: A map amendment changes the zoning map so that the landowner’s property is included in a new zoning district that allows the desired use. For example, a landowner who wants to build an apartment building on property that’s included in an R1 single-family residential zone might ask the legislative body to rezone the property to an R3 zoning designation that allows multiple-family residential uses.

Text amendment: A text amendment changes the restrictions that apply to the property’s zoning district to allow the landowner’s desired use. For example, an R1 single-family residential zone might require all buildings to be located at least 5 feet from the side boundaries of the lot. A landowner who wants to build an extra detached garage on her R1 lot might ask the legislative body to amend the R1 zoning restrictions to allow such a garage to be built only 3 feet from the side boundaries. Because text amendments change the restrictions for all properties in that zoning district, such amendments are relatively rare.

Many zoning ordinances say that if 20 percent (or another specified percentage) of nearby property owners object to a rezoning, the rezoning will take effect only if three-quarters of the local legislative body votes in favor.

Some courts have held that when an individual landowner seeks a zoning amendment, the legislative body’s decision whether to grant the amendment isn’t really a legislative decision. Instead, they consider it to be an administrative or quasi-judicial decision, meaning that even though the legislative body is obviously not a court, it’s acting judicially by applying existing rules and policies to a specific landowner’s property. Courts that consider rezonings to be quasi-judicial will review a challenged rezoning decision more carefully than they review legislative actions. For example, these courts may require evidence to support the government’s claim that the rezoning decision is in the public interest.

In the following sections, you find out about the relationship between zoning amendments and the comprehensive plan for an area as well as what constitutes illegal spot zoning.

Requiring consistency with a comprehensive plan

Zoning enabling acts all contain some version of a requirement that the zoning ordinance be “in accordance with a comprehensive plan.” This means that not only must the originally adopted ordinance be in accordance with a comprehensive plan, but so must amendments to the ordinance. This statutory requirement limits local legislative freedom to adopt amendments requested by landowners.

State approaches to interpreting and applying requirements of consistency with a comprehensive plan include the following:

The zoning ordinance must be rational. In most states, the requirement of consistency with a comprehensive plan isn’t very restrictive. Most courts have interpreted the requirement to mean simply that the zoning ordinance itself must reveal a rational plan of zoning, not that the zoning ordinance must comply with a separate document called a comprehensive plan. Therefore, most courts hold that as long as a zoning amendment could rationally be thought to be consistent with the public interest, it’s in accordance with a comprehensive plan.

The zoning ordinance must comply with a written plan. Some states require that the zoning ordinance be consistent with an actual written plan for the community. Such a requirement is more of a limit on legislative freedom to zone and amend. In some of these states, an amendment to a zoning ordinance simply can’t allow something that the comprehensive plan doesn’t allow. Therefore, the landowner may need to first seek amendment of the plan before seeking amendment of the zoning ordinance — and some states limit the circumstances in which the plan may be amended or how often it may be amended.

The zoning ordinance must be in basic harmony with a written plan. In some states, the zoning ordinance only needs to be generally consistent with a written plan, so the legislative body may amend the zoning ordinance to allow something not allowed in the comprehensive plan — or to forbid something allowed by the comprehensive plan — as long as the amendment is in basic harmony with the purposes of the plan.

The court reviews a zoning ordinance differently if it’s inconsistent with a written plan. When a zoning amendment is inconsistent with the plan in some respects, some courts have shifted the burden to the government to demonstrate how the amendment advances the purposes of the plan. They may also review the amendment decision to determine whether the evidence before the legislative body could have supported a conclusion that the amendment was consistent with the plan.

Invalidating spot zoning

When the local legislative body rezones a single lot or a small group of lots, a court may find that the rezoning is illegal spot zoning. Spot zoning is the rezoning of a small area in circumstances that violate one or more of the following limitations on the zoning power:

The statutory requirement that zoning be in accordance with a comprehensive plan: Rezoning a small area may allow uses in that area that are incompatible with the surrounding area and therefore not in accordance with a comprehensive plan for the area. (See the preceding section for details on the comprehensive plan requirement.)

The constitutional doctrine of substantive due process: Rezoning a small area inconsistently with the surrounding area (whether more or less restrictively) may be unconstitutionally arbitrary or irrational. (See Chapter 8 for more on the substantive due process doctrine.)

The constitutional requirement that guarantees equal protection of the laws: Rezoning a small area may discriminate in favor of the landowner by allowing her to do things on her land that others aren’t allowed to do. As a result, the rezoning benefits her rather than the community as a whole. On the other hand, an unwanted rezoning of a small area may discriminate against the landowner by irrationally denying her the right to use her property in the same way nearby properties can be used. (You can read about the Equal Protection Clause in Chapter 8.)

In deciding whether a rezoning is illegal spot zoning, courts generally consider the following:

The size and ownership of the rezoned area: The smaller the rezoned area and the fewer the number of owners, the more likely a court will find the rezoning to be illegal spot zoning.

The extent of compatibility with the surrounding area: The court examines the uses allowed by the rezoning to ensure they’re compatible with the uses permitted in the surrounding area and in harmony with the comprehensive plan for the area. The less compatible the permitted uses are, the more likely the rezoning is illegal spot zoning.

Who is really benefiting from the rezoning: The court determines whether the local legislative body genuinely intended to benefit the public or whether the public benefits were merely incidental to the private benefits for the owners of the rezoned land. The more the rezoning was for the private benefit of the landowner, the more likely the rezoning is illegal spot zoning.

A few state courts have held that a local legislative body can rezone a small area only if it can show that the original zoning of the area was a mistake or that conditions in the area have substantially changed in a way that justifies the rezoning.