Zoning

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 the GENERAL 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.