Thursday, January 26, 2023

The Purpose, History & Legal Considerations of Zoning Ordinances

 What exactly is zoning and what is its purpose? Zoning falls under the purview of police power & is the process for dividing land into zones for different uses. Zoning laws are the laws that regulate the use of land and what will be built on it. 

Ultimately zoning is supposed to benefit the “health, safety and general welfare of the public.” It means that every act of governance should (ideally) be made in the best interests of the people. Accordingly, zoning laws are created for the simple purpose of protecting the health, safety and general welfare of the people as relates to land use & - very importantly - it is widely believed that zoning helps to protect the values of real estate in a town or city. Though ultimately a state power, almost all zoning is delegated to the various political subdivisions of the state government - counties & municipalities, through state enabling acts. 

The main things that zoning ordinances should try to strive for:

  • Protecting the value and enjoyment of properties by separating different land uses and attempting to minimize any adverse  effects upon each other

  • Protecting the value and enjoyment of properties by allowing a property its most appropriate use given its location and surrounding uses

  • Providing for the orderly development of a political subdivision (city/county) in the best interests of its citizens, and

  • Providing adequate public infrastructure, e.g., roads, schools, water and sewers

These ordinances specifically codify:

  • The type of zone (e.g., commercial, residential, agricultural),

  • What types of buildings and other structures can be constructed within each district (i.e. size, number of stories)

  • The situs of structures (e.g., setbacks, green space), and

  • Environmental & Aesthetic concerns(e.g., buffers, flood control).

The Process: the creation of the ordinance is similar to the comprehensive/master plan’s creation and approval: staff and planning consultants (often lawyers) create a draft ordinance; a public hearing is held (or multiple hearings) for public input; the draft is modified by staff and consultants; eventually a draft ordinance is given to the planning commission for review; more public input; commission makes a recommendation to the city council/county BOC; more public input; approval, approval with modifications, or send it back to the commission.

  • Relevant case law: 

    • Village of Euclid, Ohio v. Ambler Realty Co., 272 U.S. 365 (1926) and 

    • Penn Central Transportation Co. v. New York City, 438 U.S. 104 (1978State and federal statutes, codes and regulations

When a city wants to make a change to the ordinance, but hasn’t determined yet what that change should be, but wants to temporarily halt development that, while legal under the current ordinance, would be prohibited under the likely change, the city can enact a moratorium.  Courts may consider whether the moratorium advances a legitimate governmental interest, is being made in good faith, and doesn’t deprive the landowner of all reasonable use for too long. Not unlike the judicial realm, it’s all about the balancing of equities with an emphasis placed on the property rights of the property owner. If done incorrectly, any governmental entity could be guilty of an “improper taking” of one’s property value. This can lead to lawsuits. 

The Beginning of Modern Zoning: 

In 1926, the United States Supreme Court ruled in the landmark case of the City of Euclid, Ohio v. Amber Realty Co. that zoning ordinances, regulations and laws are a legitimate use of a community’s police powers so long as the regulations provide a benefit to public welfare. While zoning was ruled by the Supreme Court to be an appropriate use of a community’s police power, the validity of any zoning ordinances can be subjected to legal challenges. Common validity challenges include spot zoning & any violations substantive due process amongst other things.

DUE PROCESS Amendment V of the U.S. Constitution provides, in part, that “[n]o person shall be . . . deprived of life, liberty, or property, without due process of law.” This mandate applies to the State and local governments through the Fourteenth Amendment, which provides in part: “... nor shall any state deprive any person of life, liberty, or property without due process of law.

This clause of the Constitution has come to protect individuals from arbitrary governmental action, no matter what level of government is acting. There are two types of due process afforded by the constitution, procedural and substantive. Procedural due process in regard to land use regulations requires a fair and open process. Procedural due process ensures that decisions are reached in a fundamentally fair manner & that a process was provided to property owners in a municipality. In regard to zoning, the courts have interpreted substantive due process to mean that land use controls must advance legitimate governmental interests that serve the public health, safety, morals, and general welfare. Substantive due process requires that: 1. There is a valid public purpose for the regulation; 2. The means adopted to achieve that purpose is substantially related to it; and, 3. The impact of the regulation upon the individual not be unduly harsh. 

Three major items of consideration w/ regards to LEGALLY denying a zoning amendment (change): - the proposed use is already well served. i.e. a city w/ a population w/ an approx. population of 15,000 has recently allowed over 1,000 multi-family units to be built while another 1,000 are already in the pipeline, permitted & now going vertical, that city would be well w/in their rights to deny a zoning amendment for a new apartment complex - lack of infrastructure. i.e. in this same city, traffic is already a nightmare & the school system is busting at the seams, this city could deny a request for any zoning amendment w/ legal cause due to lack of infrastructure - Finally: Quality of Life of The Citizenry. After all, zoning ordinances were first upheld due to the General Welfare Clause. An adverse effect on the general welfare is, too, a legal justification for denying a zoning amendment ***HOWEVER***

If the zoning is already in place - it's pretty much a done deal (though not necessarily always). That's why all cities & counties need to constantly be reviewing their ordinances & zoning maps. - Marshall McCart -

The Purpose, History & Legal Considerations of Zoning Ordinances

  W hat exactly is zoning and what is its purpose? Zoning falls under the purview of police power & is the process for dividing land in...