Getting a Grip on Zoning Regulations

Until it becomes relevant to your life, you probably never think about what zoning regulations mean. (If this is up-close and personal for you right now, skip right ahead).

A municipal zoning code is a law consisting of two distinct elements:

• A map in which each land parcel in town is described as part of a zoning district 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 it's as complex as changing any other law; when this happens, it's called a rezoning.

Being strict about definitions, and many municipalities are not, a conditional use requires 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, regulations based on what is known as performance standards have been written into some zoning codes.

Very Short Legal History of Zoning Regulations

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 was Euclid v. Amber. Since then, zoning where land uses (examples of land uses are residential, commercial, industrial, open space, and as many other categories as people want to invent) are segregated as a matter of principle has been known as euclidean zoning. That leads us right to what in the world is in those zoning regulations anyway?

Just for grins, look on the Internet to see if your municipality has posted its zoning regulations. A fair proportion now do so, in the hope that it will help prevent some of the telephone questions. You might be surprised how long and convoluted your code is.

Organization of a Typical Zoning Ordinance

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 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 its requirements) and 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 ordinance.

An Alternative Approach, the Form-Based Code

Some locations have begun to experiment with the form-based code. The theory behind this movement is that typical zoning regulations excel at prohibiting the unwanted, but they are weak in producing a positive result in the public realm. The "public realm" notion is that the street, and the space between the street and the exterior walls of a building, is the public realm.

So in form-based codes, the emphasis is on drawing a more positive picture of what the physical character of an area should be, and avoiding nit-picking about particular "land uses" that might be carried out inside a building. Taken to its logical conclusion, their argument seems to be that it doesn't really matter if a building is a residence or an office, as long as it looks the way we want it to from the street.

The form-based code is more visual, shorter, more intuitive, and perhaps less technical. The proponents of form-based codes believe them to be less subjective than design guidelines. Certainly when you pick up a form-based code, you typically will see more illustrations than in zoning regulations.

The Connection Between Land Use and Zoning

If you're not a complete newbie at understanding zoning regulations, you may have heard about the relationship between planning and zoning. In fact, many towns, prompted by state law, call the appointed commissions that provide a city council with recommendations about zoning a "planning and zoning commission."

Typically state law charges the planning and zoning commission with developing (often through hiring a planning consultant) what may be called a comprehensive plan, master plan, long-range plan (or five-year or ten-year plan), or land use plan.

Most of these have a land use feature, where desired land uses for each part of the town or city are discussed in theory. A map of the "existing land use" typically will be included, wherein records or an actual physical inventory categorize each parcel according to the activity conducted there. Then as the grand finale, a "future land use" plan is presented, together perhaps with a rationale for why this picture is desirable.

Most state laws and courts imply that zoning should be "in conformance with the comprehensive plan." In fact, you will find very similar language in almost every ordinance. However, in reality, sometimes zoning map changes conform to the future land use map, and sometimes they conform to, maybe let's just say, the politics of the situation.

In a few states judges are angry when the comprehensive plan isn't followed, but sometimes they let the facts of the case sway them as well.

So when you hear the phrase "zoning and land use regulations," try to differentiate between the two. Increasingly, progressive localities will have one set of land use regulations, which may supersede a separate zoning code or ordinances. These unified land use regulations (sometimes more aptly called "land development regulations") may include the same types of rules, prohibitions, permissions, and qualifying phrases as a traditional set of zoning regulations. They also will include, however, subdivision regulations, and miscellany such as riparian buffer ordinances, tree protection ordinances, impact fee requirements, and so forth that might also affect land development.

If you hear "zoning and land use planning," however, that makes more sense. I'd be happier if the land use planning came first, both in time and in a sentence. But you see that land use planning and zoning are joined at the hip, and that's a good thing. Courts tend to uphold local zoning code decisions that conform to their land use planning.

Practical Application of Zoning Regulations

So if you want to really understand the rules for your own lot or parcel of land, as well as the property of your neighbors, you probably will have to either read the ordinance for yourself, have someone at the city or town government explain it to you, or ask your attorney.

If you want to change the zoning ordinance somehow, whether you want to change the map or zoning regulations, you will need to learn about the typical process for doing either. Even though it's written as if you want to oppose a zoning map change (a rezoning), our page about that topic will guide you through that process if you want to support a rezoning, file for rezoning of your own property, or even propose an amendment to the zoning regulations.

Usually the government initiates an amendment to the zoning regulations, but as an active citizen, you could point out that there is no provision for how to handle skateparks, solar cell arrays, or whatever concerns you.

Typically the government itself also has the right to initiate a rezoning, or a mapping change, although usually such a change would not be directed at one parcel of property but rather be part of a larger scheme of changing signals on desired land uses.

Are Zoning Regulations Legal?

In a word, yes. If you don't like a zoning outcome, you need an attorney. Really. Beyond the city council, town hall meeting, town board, or whatever it's called at your place, there's 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 well 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 the government didn't make a procedural error in putting out its notice of the public hearing, or some other such 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.

Another way to win against a government is when you have a very important constitutional guarantee, such as freedom of religion, on your side.

And 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. And 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.

So governments, watch what you're doing.

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