Module 2: The Landscape of Zoning Laws

In our first module, we introduced the concept of urban planning in the broader contexts of comprehensive planning and land use planning. All of these are planning strategies. Zoning constitutes the mechanism by which these strategies are implemented.

Because zoning is so integral to urban planning, our coverage of this subject encompasses two modules. This module introduces zoning and discusses laws and cases that authorize and interpret zoning laws. Module 3 will examine commonly used zones and consider additional non-zoning laws that can affect urban planning.

Zoning Objectives

Zoning describes how municipalities control land use (including the uses of buildings and other improvements) based on dividing municipal lands into use-specific areas or zones. Common examples are industrial, residential, and commercial zones. Municipalities often use additional categories of zones, including single, multiple and conditional use zones, each of which can consist of further sub-zones with their own classifications. Zones are the building blocks of the larger and more complex social structure that constitutes the town, city or other urban location.

Zoning laws have two purposes: to encourage some land uses and to discourage others. Some examples include:

• Keeping inconsistent land uses separate to minimize the negative effects they would otherwise have on each other;
• Preserving land value by encouraging land uses that are most appropriate for property, considering its location and the types of surrounding properties, including requirements for green space, setbacks and other buffers, and flood control measures;
• Providing predictable guidance for building improvements by specifying what kinds of improvements can be built, where they can be sited, and permissible construction limitations (for example square footage and height restrictions or limits on the number of structures that can be built; and
• Promoting orderly municipality growth by planning for necessary and desirable uses, including public services and infrastructure such as roads and public utilities.  

The concept behind zoning – that municipalities can, and should, be designed to maximize quality of life by concentrating activities in specific places and separating them from one another – is grounded in experience that goes back to the earliest human settlements. Nobody wanted the community cesspool situated next to the community well, and nobody wanted to live next to the pig farm, the tannery or the quarry. Ancient civilizations that established the earliest cities effectively practiced basic zoning principles without referring to them as such. In the United States, it was not until the early 20^th Century that zoning became a commonly recognized term in the context of urban planning.

Sources of Zoning Law and Authority

 Zoning ordinances are almost entirely state and local laws. Although state zoning enabling acts[1] have federal government origins, they were only meant to serve as models for state laws. State courts are the main sources of zoning law interpretations in their jurisdictions, but on several occasions, the Supreme Court has examined zoning laws based on Constitutional grounds.

For example, the Supreme Court upheld the general constitutionality of zoning legislation in the case of Village of Euclid, Ohio v. Ambler Realty Company.[2] That case involved a challenge to a zoning law that zoned property for residential use when the property owner preferred to use it for industry. The property owner claimed that the zoning law’s effect denied the owner equal protection under law and constituted an unfair taking of its property without compensation. The Court disagreed, holding that as long as a zoning law has a rational basis, serves the public welfare based on the conditions and circumstances of the locality, is not discriminatory and does not constitute an unreasonable or arbitrary exercise of police power, then it passes constitutional muster.

Euclid has been the final word on constitutionality of zoning laws in general.  Although litigants today may argue about the application of zoning laws to claims involving specific constitutional rights such as just compensation for takings, due process, equal protection and freedom of contract, no one seriously disputes the legality of zoning laws per se.

Two common law legal justifications for zoning regulation by municipal governments: police power, and regulatory takings. The main distinction between the two is that a municipality exercising police power in a way that limits property rights is not necessarily required to compensate the property owner, while a “taking” of the property by the government does require compensation under the Fifth Amendment’s “just compensation” clause.[3]

The doctrine of police power as it relates to land use and urban planning dates to the case of Commonwealth v. Alger.[4] The Supreme Judicial Court of Massachusetts observed that property owners hold their properties “under the implied liability that his use of it may be so regulated, that it shall not be injurious to the equal enjoyment of others having an equal right to the enjoyment of their property, nor injurious to the rights of the community... This is very different from the right of eminent domain, the right of a government to take and appropriate private property to public use... which can be done only on condition of providing a reasonable compensation therefor. The power we allude to is rather the police power, the power vested in the legislature by the constitution, to make... laws... as they shall judge to be for the good and welfare of the commonwealth.”[5]

The distinction between the exercise of police power and eminent domain was that the latter required a physical taking of property by the government to trigger the just compensation requirement, while the former required no compensation. For many decades after it was decided, Alger represented the dominant judicial philosophy in the United States with regard to the legal justification behind urban planning in general as well as later-enacted zoning laws. The Supreme Court reinforced the police power rationale in Mugler v. Kansas, when it stated:

“A prohibition simply upon the use of property for purposes that are declared, by valid legislation, to be injurious to the health, morals, or safety of the community, cannot, in any just sense, be deemed a taking or an appropriation of property for the public benefit... The exercise of the police power by the destruction of property which is itself a public nuisance, or the prohibition of its use in a particular way, whereby its value becomes depreciated, is very different from taking property for public use, or from depriving a person of his property without due process of law. In the one case, a nuisance only is abated; in the other, unoffending property is taken away from an innocent owner.”[6]

The early effect of the police power doctrine was to allow governments to deny compensation to landowners for zoning-based and other land use restrictions as long as the interference with the property did not constitute a physical taking of the land. In Keystone Bituminous Coal Association v. DeBenedictis, the Court described the public interest underlying the exercise of police power as a “... genuine, substantial, and legitimate public interests in health, the environment, and the fiscal integrity of the area.”[7]

Regulatory Takings

While exercise of police power does not necessarily require compensation, such compensation is required if the zoning rule rises to the level of a “regulatory taking.” The Supreme Court decided a series of cases to clarify what constitutes a regulatory taking, but the common denominator is that it means the government’s effective deprivation of a private owner’s use of the land, even without actually acquiring the property.  

In Pennsylvania Coal Co. v. Mahon,[8] the Court held that when the effect of a land use law on private property has a significant enough negative impact on the land’s value or its use, then a regulatory taking may occur. The Court said:“The general rule at least is, that while property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking... We are in danger of forgetting that a strong public desire to improve the public condition is not enough to warrant achieving the desire by a shorter cut than the constitutional way of paying for the change... this is a question of degree and therefore cannot be disposed of by general propositions.”[9]

Although it did not establish a specific threshold of when a regulatory taking occurs, the Mahon decision created a “diminished value” test: the more the government’s restrictions reduce the value of property, the more likely it will be that the restrictions constitute a taking. Later Supreme Court cases refined the holding in Mahon by identifying two ways that the government activity can become a regulatory taking: when the government’s action constitutes or permits a “physical invasion” of the land,[10] and where the government’s action denies all of its economically beneficial or productive use.[11] Note that even if a regulatory taking is only temporary, it still requires payment of just compensation.[12]

          In a landmark 1992 case, Lucas v. South Carolina Coastal Council,[13] the issue was whether the government can prohibit a property owner from engaging in commercial activity on his land for environmental reasons without compensation. There, a local zoning regulation prohibited development of beachfront property, when development was the primary reason for which is it was purchased. The Court ruled that the local government must compensate the landowners since it had deprived them of all economically viable use of the property. This amounted to a “taking” under the Fifth Amendment and this constitutionally mandated just compensation.[14]. 

          However, Lucas was limited a bit in Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency.[15] There, the Court held that a temporary moratorium on housing development does not deprive landowners of all economic use of their properties and is thus not considered a taking. The Court observed that a law that merely creates fluctuations in property value does not necessarily constitute a taking for Fifth Amendment purposes.

While zoning laws can create conditions on developments of property, those conditions must be related to the proposed developments. In Dolan v. City of Tigard,[16] municipal authorities approved a store owner’s expansion plans only on condition that he would dedicate a public greenway along a creek near his land and develop a public bike path on his land. The Supreme Court disallowed this condition, ruling that there was no “essential nexus” between the owner’s expansion request and the conditions imposed. The conditions must have a direct and proportional relationship to the proposed development for the conditions to be constitutional uses of the state’s police power.[17]

Zoning and First Amendment Freedoms

Aside from meeting requirements for police power validity, zoning laws must avoid infringing on other constitutionally protected rights of landowners. Zoning ordinances that purport to restrict expression can be unconstitutional if the restrictions exceed what is permissible under the applicable standard of judicial review. This standard can be strict scrutiny for laws that prohibit or restrict speech based on content or which require obtaining government approval before engaging in speech,[18] or some degree of lesser scrutiny for laws restricting the time, place or manner of speech or which restrict commercial speech.[19]

Strict scrutiny presumes that a speech restriction is unconstitutional unless the government proves that the restriction is narrowly tailored to achieve a compelling state interest. To allow “time, place and manner” speech restrictions, the government interest in limiting that speech must be substantial, the limiting law must directly advance the claimed interest and be no more extensive than needed to serve it.[20]

So, for example a “zoning” regulation that prevented a landowner from holding protests on her land would be subject to strict scrutiny and would almost certainly fail. A zoning regulation that prevented loud parties after 9 PM in a residential neighborhood would be a “time, place and manner” restriction that would be much more likely to pass muster.

The First Amendment also guarantees freedom of religion. Sometimes this freedom can be limited by zoning laws relating to traffic congestion, noise and inconsistent uses (such as preventing a church in a residential zone from operating a day care center that would otherwise violate the rules of that zone).[21] Municipalities may also subject the construction or expansion of religious structures to conditional use requirements under zoning laws, such as requiring public hearings and measures to ameliorate concerns of surrounding property owners.

However, zoning-related restriction on the exercise of religion is subject to the Religious Land Use and Institutionalized Persons Act.[22] The RLUIPA prohibits land use regulations from imposing substantial burdens on religious assemblies, institutions or their members unless those laws pass the strict scrutiny test. It also provides for a private cause of action to enforce its provisions. Once the plaintiff shows that the zoning law imposes a substantial burden on religious exercise, the burden of proof shifts to the government to demonstrate that it has met the strict scrutiny requirements.

Under the Act, “land use regulation” is broadly defined as any “zoning or landmarking law…  that limits or restricts a claimant's use or development of land."[23] For example, there is nothing inherently unconstitutional about a locality providing zoning restrictions for houses of worship (such as requiring minimum acreage and numbers of parking spots). However, because of the Act, such regulations, should they burden people’s abilities to practice their religions (such as by making it difficult for people who don’t travel by car on the Sabbath from accessing their houses of worship on that day), they must pass a higher level of scrutiny than that to which zoning rules are generally subject.

Anti-Discrimination and Equal Protection

Occasionally, municipalities have enacted zoning laws for ignoble purposes, the most notable examples being various laws enacted in the early 20^th century to restrict the ability of people to buy or sell real property based on race. The Supreme Court held in Buchanan v Warley [24] that such laws violate the Fourteenth Amendment’s “equal protection” clause.[25]

Today federal laws protect people from discrimination based on municipal zoning laws. For example, the Fair Housing Act[26] and the Federal Housing Amendments Act of 1988[27] prohibit discriminatory practices in residential housing. These laws make it illegal for a municipality to use zoning laws to deny modifications to housing of protected classes.[28] Intent to discriminate is not necessary for a suspect zoning law to be struck down. Rather, policies may violate the Fair Housing Act if they lead to disparate treatment between protected classes and others. Examples may include using zoning laws to stop people in protected classes from accessing neighborhoods,[29] imposing conditions or restrictions on housing for people in protected classes that do not apply to people outside those classes, using public safety concerns based on stereotypes to apply restrictions on housing development and failing to implement reasonable accommodations, the effect of which is to deny people with disabilities equal housing opportunities.

Other federal laws that can bear upon land use and zoning practices include Section 504 of the Rehabilitation Act of 1973[30] (which provides that disabled people cannot be discriminated against in any program that receives federal funding) and Title II of the Americans with Disabilities Act (which states that they cannot be discriminated against by any public entity).[31] Thus, urban planners must take these laws into account when planning for residential zones that could include public housing to ensure that those protected under these laws are not treated differently.

In our next module, we’ll turn to the nitty gritty of zoning law, focusing on the various types of zones, changes to zones and variances.