Zoning regulations sit comfortably in the background until it becomes personally relevant to your life. But when a conflict comes up in your neighborhood that makes you take notice, wow, you're trying to learn everything in a crash course.
Our purpose is to help you know what you're going to see when you start to read the zoning code, law, or ordinance (all mean the same thing in this context) for your town or city.
A zoning ordinance consists of two distinct elements:
• A map in which each land parcel in town is assigned to a zoning district usually described in letters and numbers (such as R2), with a word description accompanying that shorthand way of talking about the district.
The words might be "Residential-Two Family," for example. In this case, there could be many R2 districts scattered all over town, so don't let the word confuse you into thinking the R2 districts have to be contiguous. Of course the map may be changed, but the change is as complex as modifying any other law. When this happens, it's called a rezoning.
Districts may be of any size, unless limited by your local law. The International Zoning Code, one of those standardized model codes that towns can adopt by ordinance if they choose, allows cities to plug in a minimum district size.
• The zoning regulations, which we talk about for the remainder of this page. They describe what uses are permitted in each zoning district and then a set of requirements for the physical layout of buildings, parking, sign regulation, or other physical structures and elements on the land.
By the way, to understand the jargon, you should associate the word "permitted" in the previous and following paragraphs with the word "allowed." Permitted in this context does not mean that you automatically will receive a building permit or any other required permit not covered in the zoning ordinance.
So as we were saying, land uses (really often uses of the building more than the land) may be permitted "as of right," meaning automatically, or as "conditional" or "special" uses.
Being strict about definitions (many municipalities are not), zoning regulations should say that a conditional use requires its recipient to conform to a list of conditions that must be met at all times for the use to be permitted.
A special use in many states and systems merely means that the use may or may not be granted, at the discretion of the governing body. You may encounter various mixtures of the two zoning terms also.
Often there is a list of prohibited uses as well. Typically the requirements are rigid and numerical, although in the last 30 years, flexible regulations based on what is known as performance standards have been written into some zoning codes.
Other places are adopting for all or part of their territory a form-based code, which govern things such as building mass, setbacks from the street, and so forth and largely ignore traditional land use.
Zoning is a concept that originated in the United States in the 1920s. State law often gives certain townships, municipal governments, county governments, or groups of governments acting together the power to zone.
Municipal zoning law has been upheld by the Supreme Court since a few years after the first zoning ordinance was enacted, as part of the general "police power" that state governments may transfer to lower levels of government.
The Supreme Court case upholding zoning and its traditional segregation of land uses was Euclid v. Amber. As a piece of trivia, this is why you sometimes hear the phrase Euclidean zoning. It's nothing about geometry.
Someone asked the obvious question in our Q&A section: why is zoning important?
Typically these laws are justified on the grounds that they protect the health, safety, and welfare of the public, which is the wording that the judiciary first applied to zoning, by the way. Keep in mind that the original zoning regulations were justified on the basis of crowded tenements in New York, and you begin to see the logic of the health and safety argument.
That leads us right to what in the world is in those zoning regulations nowadays?
Many municipalities have posted their zoning regulations on their website, hoping to reduce the number of telephone conversations. You might be surprised how long and convoluted your code is, but probably you can scan through it anonymously.
If there is a typical organization of a zoning ordinance, it would be that after a useful or useless preamble about the purposes of the ordinance, a long zoning code definitions section is followed by the list of zoning districts.
The procedures for changing either the zoning district assigned to a particular parcel of land (a rezoning or zoning amendment) or the general regulations applying to one or more zoning districts are grouped together, toward the beginning or end of the ordinance.
Next come the zoning regulations applying to each district. Typically these would begin with a rationale or overview of the district, and then proceed to a detailed list of permitted and prohibited uses, a list of required minimum setbacks for each side of the yard (if any), a maximum height and percentage of the lot covered with buildings, and perhaps required or prohibited lawns, signs, parking spaces, accessory buildings (your detached garage or storage shed).
Some requirements in the zoning regulations may offer a degree of flexibility. For instance, parking requirements were stated in terms of minimums until recently.
Environmental and other concerns about large and mostly empty vacant parking lots have led to more flexible standards, permitting of "shared parking" arrangements between adjoining neighbors when their hours are different, and allowing proposals based on actual business conditions.
Each item in the list of permitted or prohibited uses may be subject to quite a lengthy set of qualifiers also. This may be particularly true of industrial land uses, where specific processes, noise levels, and other criteria may be spelled out.
The ordinance also will include a description of what, if anything, happens to "nonconforming uses" (land uses or buildings that pre-exist the ordinance and now do not conform to the zoning regulations).
Also described will be a procedure for obtaining a variance if the literal interpretation of the ordinance would impose a unique hardship on a particular parcel of land.
Many ordinances group all the sign requirements together and all the parking requirements together.
Other more recent innovations in zoning such as overlay districts, transfer of development rights, and even impact fees sometimes find their way into a zoning regulations.
In a word, yes, zoning is legal. If you do not like a zoning outcome, you need an attorney. Beyond the city council, town hall meeting, town board, or whatever it may be called where you live, there is really no recourse except to a court.
If you want to argue that the whole idea of zoning is illegal and un-American, forget it. Your side lost about 80 years ago.
Your best bet if you want to reverse a zoning map amendment or zoning regulation amendment, and you're willing to fight it in court, is to look for a procedural mistake that the government made. It's pretty easy to make an error in the complex process, so you might be lucky.
Of course, if you win on a procedural mistake, the government will only enact the same thing again, this time doing it right. But you might finish your project in the meantime.
If you think a bad zoning decision was made, you can also argue that the city council involved didn't pay enough to the relationship between land use and zoning.
Another way to win in court is to show that the government did a spot zoning, isolating one parcel of land instead of considering a bigger picture.
With a very good attorney, you might try the contract zoning argument, which is in brief that there was some sort of favor or tit-for-tat arrangement for an individual involved.
Another way to win against a government is when you have a very important constitutional guarantee, such as freedom of religion, on your side. See church zoning for relevant discussion.
In sum, if the government didn't make a procedural error or these other mistake, you have to try to show that the government's actions are inconsistent with its previous planning and its previous record of actions.
If the government shows that a regulation is "reasonably related" to a public purpose, they're going to win.
Conservative courts seem to be more and more sympathetic with a property owner when a government's regulations are so complete in their impact as to constitute a "taking" of the property.
The takings clause of the Fifth Amendment to the U.S. Constitution prohibits taking of private property without compensation. So when the impact of a zoning regulation on your property effectively prohibits you from doing anything profitable with your land, you might have a case.
Local governments, be careful about your actions.