Zoning

Question 1

What does zoning balance?

Answer 1

Balancing the rights of residential homeowners v., the economic development of the area’s business interests.

Question 2

What is zoning

Answer 2

Land Use planning

Question 3

What is the legal basis for zoning?

Answer 3

The police power of the city to protect public health, safety, and welfare of its residents.

Question 4

Types of Zoning

Answer 4

Euclidian Zoning

Performance Zoning

Incentive Zoning

Question 5

Euclidean Zoning (Aka building block zoning)

Answer 5

segregates land uses into specified geographic districts and dimensions. The zoning stipulates limitations on the type and magnitude of development that is allowed on lots within each “zone.”

Question 6

Theory Underlying Euclidean Zoning (4)

Answer 6

(1) separation of uses;

(2) protection of the single-family home;

(3) low-rise development; and

(4) medium-density population.

**Works well for suburbs, small cities, towns, villages, etc.

Question 7

Performance Zoning

Answer 7

goal-oriented criteria to establish parameters for proposed development projects in any area of a municipality.

Uses building codes to establish performance standards as opposed to specification standards

Note: the goal of performance zoning is to reward development that meets outcome goals.

Question 8

Incentive zoning

Answer 8

provides a base of prescriptive limits on development and also provides an extensive list of incentive criteria that will encourage development (through bonuses) that meets established urban development goals.

Note: This is used mainly in urban settings where Euclidean zoning is hard to achieve.

Incentive Zoning is really hybrid zoning

Question 9

Steps to zoning

Answer 9

Step one: Must be a Standard State Zoning Enabling Act for there to be zoning ordinances.

Empowers municipalities to use the state’s police power to “regulate and restrict the height, number of stories, and size of buildings and other structures, the percentage of a lot that may be occupied, the size of yards, courts, and other open spaces, the density of population, and the location and use of buildings, structures, and land for trade, industry, residence, or other purposes.”

It permits division of a municipality into different zones according to a comprehensive city plan.

Step two: To enact a local zoning ordinance, a locale must create a zoning (planning) commission and a board of adjustment (usually called a Zoning Appeals Board).

Question 10

Non-Conforming Use

Answer 10

a use of property that does not fit a local zoning ordinance. Typically, these non-conforming uses were in existence BEFORE the zoning ordinance took effects, so they were allowed (grandfathered, so to speak).

Question 11

Natural Expansion of Non-Conforming Uses

Answer 11

Many jurisdictions allow “natural expansion” of the non-conforming uses to grow over time – i.e., changing how the building looks or minor expansion on the same lot. Typically, an owner can engage in normal maintenance and repairs of a non-conforming structure.

Non-conforming uses run with the land (not the landowner).

Abandonment of the non-conforming use ENDS the right to not conform. A long enough period of non-use (60 day to 1 years) creates a presumption of abandonment.

Destruction of the non-conforming use (by act of god not intentional acts) typically ends the non-conforming use

Question 12

Non-Conforming use Amortization

Answer 12

provides a reasonable period of time during which owners could maintain the pre-existing uses and after which the uses were to be terminated.

A majority of jurisdictions allow amortization, but the battles are on whether the length of time is “reasonable.”; Minority says it amounts to a takings.

Question 13

Vested Rights Doctrine

Answer 13

a way of making a proposed use a non-conforming use if sufficient commitments have been made in reliance on existing zoning requirements that are subsequently changed in a way that invalidates the proposed use.

Question 14

What amounts to sufficient commitments? (3)

Answer 14

(1) The extent to which the the developer has gone in obtaining government approvals?

(2) How much money has been invested in the project in good faith reliance on the past zoning laws?

(3) On what has the money been spent? – just planning or actually starting some of the work on the building.

Question 15

Flexibility in Zoning: Three Ways

Answer 15

Flexibility is needed in Euclidean zoning because of the tightly drawn use districts. Zoning laws can inhibit social and aesthetic diversity.

(1) Variances
(2) Special Exceptions
(3) Zoning Amendments

Question 16

Variances

Answer 16

the power of the Zoning Board to allow a landowner to build on land (or use land) in a manner that is otherwise not permitted.

Question 17

Special Exceptions (Flexibility in zoning)

Answer 17

the power of the Zoning Board to allow a use provided for in the text of the ordinance, but which is not located on the zoning map that accompanies the text.
(Ex. airports, hospitals, landfills)

Question 18

Zoning Amendments

Answer 18

adding/removing provisions from the zoning ordinance.

Note: non-conforming use can be considered a fourth way, but it requires a pre-existing use, and these do not.

Question 19

Two tests that must be satisfied to qualify for a variance

Answer 19

(1) the applicant must show exceptional and undue hardship;

**Undue hardship means that without a variance, the property in question could not be effectively used. The hardship must not be self-imposed.

**Courts will consider efforts by the property owner to alleviate the hardship

(2) the applicant must show that to grant a variance would not be detrimental to the area (zoning plan).

Question 20

Conditional Variance

Answer 20

A permitted use granted only if certain conditions are met that minimize the impact of the adverse use to the neighbors.

These conditions might relate to fence size, amount of outdoor lighting, enclosure of buildings, etc.

NOTE: Zoning Boards may not limit a variance to just the current landowner. All variances “run with the land.”

Question 21

Area Variance

Answer 21

are dimensional variance such as set backs from the road, or amount of feet houses need to be away from each other.

Question 22

Use Variance

Answer 22

relax the restrictions on the uses of a particular area

Higher burden of proof for use variances than area variances.

Question 23

How do special exceptions differ from variances?

Answer 23

While a variance is an administratively authorized departure from the zoning ordinance, “an exception is a use permitted by the ordinance in a district it is not necessarily incompatible, but where it might cause harm if not watched.”

Typically, exceptions require large amounts of land and involve uses that have the potential to cause injury to the surrounding area.

Examples: airports, landfills, and hospitals.

Zoning boards grant exceptions on a case-by-case basis, and usually involve scrutiny about the harms to the location involved.

Question 24

Spot Zoning

Answer 24

These are “zoning changes, typically limited to small plots of land, which establish a use classification inconsistent with the surrounding uses and create an island of nonconforming use within a larger zoned district, and which dramatically reduce the value for uses specified in the zoning ordinance of either the rezoned plot or abutting property.

Question 25

When is spot zoning invalid? (3)

Answer 25

When a zoning amendment (1) singles out a small parcel of land for special and privileged treatment (2) only for the benefit of the landowner (rather than public interests) and (3) in a way that is not in accord with the zoning plan.

Question 26

Rule for nondiscriminatory spot zoning challenges

Answer 26

As a legislative act, a zoning or rezoning classification must be upheld UNLESS the opponents prove that the classification is unsupported by any rational basis related to promoting the public health, safety, morals, or general welfare, or that the classification amounts to a taking without just compensation

Question 27

Land use controls are all about the concept of _____ (Fill in the blank)

Answer 27

Externalities

Question 28

Externalitities

Answer 28

exist whenever some person makes a decision about how to use resources without taking full account of the effects of the decision.

Because these external consequences aren’t planned for, resources tend to be misused or misallocated, so society doesn’t benefit as much as it could.

Question 29

Modern justifications for zoning (3)

Answer 29

Things like aesthetic zoning just don’t fit into the nuisance rationale, so lawmakers have come up with other justifications.

(1) Population growth

(2) Decreased or increase in gov’t tax revenue

(3) Increased environmental activism

Question 30

Aesthetic Zoning (Traditional and Modern)

Answer 30

Traditional Approach: zoning for purely aesthetic reasons was not permitted. Ordinances outlawing billboards, for example, were frequently struck down because outlawing them had nothing to do with the police power.

Over the decades, that all changed. Courts now reason that billboards could be blown down in storms and fall on people, thus, endangering public safety.

Modern approach: aesthetic zoning is acceptable if the restrictions are reasonable. “Public welfare” includes being well spiritually and economically – which has extended to allowing cities to tell you what size of house and what materials you can use in certain locations.

Question 31

Restrictions that cap the total number of occupants per dwelling fall within what exemption

Answer 31

FHA Exception and are allowed. BUT restrictions designed to protect the family character of the neighborhoods are not allowed, so they will be struck down.

Question 32

Exclusionary zoning

Answer 32

All zoning is exclusionary by definition. But “normal” zoning is seen to “regulate” these excluded uses into the proper zone – not prohibit them altogether.

Rule: Restrictive measures that aim to close an entire community to unwanted groups – typically people of low income who don’t contribute much to the tax base and who use a lot of government services.

Question 33

The key challenges to Exclusionary Zoning on the 14th Amendment Equal Protection Grounds

Answer 33

The key to these challenges is what standard the court applies:

Plaintiff’s counsel has to get the court to apply a heightened, strict scrutiny standard. This requires showing the zoning infringed on a fundamental right – like discrimination.

Proof of discriminatory effect is not enough. The P’s must show a racially discriminatory motive.

This can be shown by a historical pattern of zoning in the community, from the history behind the challenged ordinance, to departures from standard policies, and, of course, by actual discriminatory comments on the record (which are rare).