Key Concepts Ch. 5 - Zoning, Takings, and Constitutional Land-Use Law
Zoning and Police Power
Zoning power is a tool with limits; regulations must be reasonable and bear a substantial relationship to public health, safety, welfare, and convenience.
Debates in courts center on whether zoning should shape, not prohibit, development.
Police powers authorize municipalities to regulate land use to protect public interest; eminent domain is the related power to take private property with compensation for public use.
Distinguishing feature: eminent domain is a taking for public use; police power regulates to prevent detrimental use.
Eminent Domain and Regulatory Takings
Eminent domain allows government to condemn property for public use with just compensation.
Regulatory takings occur when regulation goes too far and effectively deprives property of value or use, even without physical intrusion.
If owners disagree with compensation, they may sue for unjust taking.
Practical takeaway: takings analysis weighs government purpose, diminution of value, and whether a physical intrusion exists.
Constitutional Amendments and Land Use
Three key amendments related to land-use regulation: First, Fifth, and Fourteenth.
They provide protections for private property owners when land-use regulations are challenged.
First Amendment in Land Use
First Amendment covers association, privacy, and freedom of expression in property issues.
The clause about protecting free speech is most often invoked in signage disputes.
Example tension: a business seeks a sign permit but neighbors call the sign a nuisance; conflict between free speech and community standards.
Fifth Amendment and Takings
Fifth Amendment prohibits taking private property without just compensation.
Distinction: government can take via eminent domain for public use if compensation is just.
Regulatory takings: regulations that go too far may be treated as takings; substantial diminution of value alone is not automatically a taking without some intrusion.
Fourteenth Amendment: Due Process and Equal Protection
Fourteenth Amendment extends due process and equal protection to state and local action.
Equal protection requires legitimate governmental purpose and similar treatment of similarly situated property owners.
Substantive due process questions the legitimacy of the government purpose behind land-use rules.
Procedural due process concerns include whether public notice and hearings were provided as required by law.
Open Fields Doctrine and Search/Seizure
Fourth Amendment limits unreasonable searches and seizures; open-fields doctrine allows searches of back land without warrants under certain conditions.
Open fields are not protected by the same privacy expectations as living spaces (e.g., homes).
Some state courts, like Massachusetts, have shown reluctance to apply the open-fields doctrine strictly, sometimes relying on state constitutional provisions for greater restriction.
Home-Rule Authority
Home-rule authority affects how much local government can exercise police power independent of state consent.
In states without home-rule, local authorities are limited to powers expressly granted by the state.
In home-rule states (e.g., Massachusetts), local governments may exercise police power so long as actions are consistent with the state constitution.
Quick Reference Takeaways
Zoning should be designed to shape development, not outright prohibit it, within reason and public-interest limits.
Distinguish between regulatory controls (police power) and takings (eminent domain) with compensation.
Key constitutional angles: First Amendment signage issues; Fifth Amendment takings; Fourteenth Amendment due process and equal protection; state-level adaptations of these concepts.
Open fields may be less protected than homes, but state constitutions can offer stronger protections.
Local control varies by state law and the presence or absence of home-rule authority.
Historical Perspectives of Zoning
Early US settlers viewed land as a community resource with agrarian principles; land used in public interest.
1631: Virginia act required every adult male to grow 2 acres of corn. ( acres )
1642 and 1656: laws regulating flax/hemp and mulberry trees.
Shift from agriculture to urban/metropolitan development; grid-pattern plans emerged (e.g., Philadelphia 1686, Savannah 1733).
Late 1800s Industrial Revolution accelerated urbanization; need for health, safety, and welfare ordinances.
New York City’s first zoning ordinance (1916) addressing proximity of factories to homes; upheld in 1920; included building height restrictions, setbacks; zoning categories included residential, commercial, unrestricted, undetermined.
Federal influence grows: NYC ordinance spurred federal zoning enabling efforts; Herbert Hoover (Commerce Secretary) supported a Department of Commerce advisory committee.
1922–1926: drafts of zoning-enabling legislation culminated in the Standard State Zoning Enabling Act (SSZEA) in 1926; acts served as models for states.
Variances and local procedures vary across states; general model allows local adoption with differences.
1926 Euclid, Ohio: Village of Euclid v. Ambler Realty Co., 272 US 365 (1926) upheld the constitutionality of a zoning ordinance; landmark case establishing zoning precedent.
Euclidean zoning: two core components — classification of land uses (e.g., residential, commercial, industrial) and regulation of development density (size, height, area, location, land coverage).
The case highlighted tensions between private property rights and public control; debates over due process and community character; the decision reinforced zoning as a tool for planned development.
Impact: solidified the practice of zoning and shaped subsequent public land-use regulation.
Scope and Content of a Zoning Ordinance
Zoning ordinance has two main components: a zoning map and a zoning text.
Zoning map:
Delineates zoning districts (land-use districts) and shows boundaries.
Must be clear and identifiable; maps may be multiple for large communities.
Official map should include: title (community name and adoption date), north arrow, scale, legend with district identities, clearly identified districts, and space for amendments.
Zoning text:
Establishes land-use standards and regulations for districts shown on the map.
Traditionally includes the following elements:
Purpose, scope, and authority
Definitions of terms used
Descriptions of zoning districts
Uses of land, water, and buildings permitted, prohibited, or permitted by special permit
Intensity of uses (e.g., vehicle traffic on arterial roadways)
Lot sizes (minimum or maximum density)
Dimensional and density controls (frontage, width, depth; setbacks; lot coverage; FAR )
Height of buildings and special features
Changes in preexisting nonconforming uses and buildings
Accessory or subordinate uses and buildings
Parking and loading requirements
Regulation of signs and advertising devices
Buffer strips and landscaping
Earth-materials excavation, mining, and filling
Site-plan referral and review provisions
Administration of amendments, building and occupancy permits, enforcement and penalties, special permits, variances, and appeals
Zoning text also lists permitted uses, sets minimum standards for each district, and establishes administration rules.
Zoning Ordinance Structure and Enforcement
Ordinance text is divided into articles and sections, each with a specific purpose.
Zoning administrator enforces the ordinance: may order corrections and bring action (injunction, abatement, or other) to ensure compliance.
Public hearings: planning board/commission must hold hearings; citizens can voice views; multiple hearings allowed if necessary.
Adoption: governing body may adopt after hearings and appropriate changes; if changes create a more intensive land-use classification than advertised, an additional hearing is required.
Amendments to the Zoning Ordinance
Amendments can be substantive or procedural.
Substantive amendments change permitted land uses or district boundaries.
Procedural amendments change administrative rules (e.g., number of days to act).
Overly frequent substantive amendments can defeat the ordinance’s purpose.
Process: proposed amendments referred to the planning board for recommendation; public notice and hearings required before adoption.
Zoning Board of Appeals (ZBA) and Variances
ZBA adjudicates cases and grants variances for hardships.
ZBA is created when the ordinance is adopted; may be elected or appointed by the mayor; in municipalities without mayors, the legislative body or town manager can appoint with consent.
Variance criteria (state-law): hardship must relate to dimensions, shape, topography, or an extraordinary and unique situation of the land; not shared generally by other properties in the same district.
ZBA may impose conditions on location/features when granting a variance.
Variances must align with the spirit and purpose of the ordinance; not used to rezone land or grant special privileges.
Note: enabled laws and procedures vary by state.
Subdivision Planning and Unified Development Codes
Subdivision authority is typically separate from zoning acts; some jurisdictions use a unified development code (UCD) that incorporates zoning, subdivision, and other regulations.
Historically, subdivision planning divides parcels into allotments for development; major issues include hydrology/drainage, traffic flow, pedestrian systems, services, landscaping, environmental mitigation, housing, and site layout.
Subdivision Review Process and Criteria
First step: approve boundaries of the entire project area; review official community map; align parcels to residential zoning.
Deeds/title pass; developer delineates boundaries for individual housing sites within the subdivision.
Preliminary site plan submitted to planning commission/board for approval; definitive plan submission deadline defined by state procedural rules.
Site plan criteria (community-specific rules apply):
Lot size and setback requirements (road setbacks, side-yard setbacks).
Traffic circulation and access plan (public/private/emergency vehicles; pedestrians).
Road alignment, road widths, traffic management.
Open-space plans, playgrounds, pedestrian pathways, open-space linkages.
Landscape master plan and stormwater/drainage plan for detention/absorption.
Cookie cutter design: subdividing into maximum buildable lots in line with zoning.
When standards are met, planning commission/governing board approves; this approach can contribute to environmental issues in wetlands and natural-resource areas.
Randall Arendt's Subdivision Planning Process
Step 1: identify parcel parts unsuitable for development (soils, slope, drainage).
Step 2: design infrastructure and roads for the site.
Step 3: site houses/buildings, protecting unsuitable areas.
Problems Resulting from Traditional Zoning Methods
Traditional zoning assigns uses by district, but often ignores cross-boundary impacts and regional considerations; can be inflexible.
In rapidly developing communities, regulations may fail to preserve environmentally sensitive areas.
Urban downtowns: traditional zoning often lacks encouragement of mixed-use, despite its catalytic role in commercial and social vitality.
Cookie cutter subdivisions can create environmental and resource-conservation problems, especially regarding wetlands and natural areas.
Zoning and the Comprehensive Plan
Zoning should support the comprehensive plan, not override it.
Relying on zoning to control development can erase the future vision; zoning is a tool, not the sole planning document.
Example: rezoning a parcel for industrial near a residential area can contradict the comprehensive plan and harm the neighborhood.
Problems with Traditional Zoning
Not based on a clear policy of coordinated land development.
Amendments for zoning ordinances and district boundaries are often piecemeal, creating illogical intermixing of districts.
Physical separation of land uses has not reliably protected one use from the harms of another.
Rigid zoning contributes to high housing costs and limits innovative land development.
Inflexible requirements fail to protect valuable historical and natural resources and can produce monotonous suburban landscapes.
Exclusionary practices in zoning enforcement squeeze out affordable housing (e.g., large-lot zoning or absence of multifamily housing).
Open space depletion is linked to traditional zoning; subdivision rules maximize lot counts and often omit open-space and natural-resource protections.
Site-Plan Review
In the late , planners began reviewing development plans using specified site location and environmental criteria.
This process, called site-plan review, addresses open-space depletion and the protection of natural resources in environmentally sensitive areas.
Innovative Zoning Methods
These techniques create flexibility in the development process, unlike rigid Euclidean zoning.
They can account for up to components of development:
Locational analysis: relation of the project to infrastructure (roads, schools, sewer/water)
Composition: arrangement of proposed land uses on the site
Timing: amount of time to finish the project
Design: architectural features
Analyzing these factors allows prediction of costs and benefits to the surrounding environment and economy.
With built-in flexibility, negotiations between planning representatives and developers must be fair and open; conflicts of interest must be avoided.
Negotiation and Public Involvement Guidelines
The American Planning Association recommends three procedural guidelines:
Public hearings should be held for substantive public participation; hearings should be organized to ensure decisions include public input.
The negotiation process should be separate from the decision-making process; decision makers should not participate in negotiations or meet individually with developers.
The result of negotiations should be recommendations to the decision-making body; these recommendations should be available for public review.
Public Involvement and Authority
Negotiation sessions should be as public as possible; regular documentation of sessions.
Zoning decisions can be made by legislative or administrative authorities.
Legislative handles rezonings such as planned unit developments and floating zones.
Administrative authority can review development plans, overlay zones, and incentive zoning when rezonings are not required.
Innovative Zoning Techniques
Traditional-neighborhood development zoning: recreate diverse, community-oriented villages.
Examples: Portland in-fill, Celebration and Seaside.
Goal: residential and commercial diversity with a communal feeling and past values.
Performance standards: any use permitted if it complies with performance standards for the district.
Standards may include: maximum noise, glare, vibration, water use, parking and traffic generation.
Enforcement must be carefully monitored.
Impact zoning: defines maximum permitted impact on the neighborhood using land-carrying capacity concepts.
Cluster zoning: allow smaller lots or attached dwellings; save land for open space and recreation; shorter streets reduce construction/maintenance costs.
Planned-unit development (PUD): large tract plan with set percentages for various uses; unified development with a special permit.
Transfer of development rights (TDR): transfer or sale of development rights to another location where higher intensity is appropriate; can preserve historic sites or farms.
Incentive zoning: public concessions (e.g., increased height or density) in exchange for contributions like plazas or open space.
Phased growth: in new subdivisions, limit construction to a percentage of lots annually to avoid overloading services.
Building moratoria: zoning-imposed time periods to allow plan updates.
Overlay districts: overlay over conventional zones to protect floodplains, wetlands, or aquifers; may add restrictions (e.g., prohibit high-risk uses).
Planning Board Education and Implementation
Planning board members should be educated about the impacts of traditional zoning and potential solutions.
Once aware, they can choose the most appropriate techniques for their community.
Zoning Ordinance and Map Alignment
Dual purpose: regulate new growth and provide minimum development standards.
Text should contain reasonable regulations; map should be reasonably consistent with the comprehensive plan.
Map should identify areas suitable for development and those that are unsuitable.
Analyze connections between traditional zoning problems and innovative solutions to address them.
Case Study: Large-Lot Zoning in the United States
Despite calls for density, one acre or more remains predominant in many areas.
HUD Advisory Commission on Barriers to Affordable Housing cites large lots as a significant cost booster and exclusionary tactic.
Lincoln Institute research on the influence of lot size on growth management.
Historical context: Northwest Ordinance (1785) divided U.S. territory into 640-acre sections; rail expansion encouraged outward movement.
Affluent land ethic: owning a single-family house with a large backyard has persisted.
Arguments for large lots: preserve farmland/open space; provide space for septic systems; limit wells.
Critique: large-lot zoning often discriminatory and exclusionary, contributing to lack of affordable housing.
Policy response: promote cluster development districts and incentives for cluster projects.
Southern California example (Orange County): experimentation with varied lot configurations to increase density and reduce costs.
Designs include angled Z-lot and zipper lot; zero-lot-line houses.
Density can reach up to , lowering housing costs relative to traditional one-acre lots.
Takeaways
Zoning should regulate growth and provide minimum standards while staying aligned with the comprehensive plan.
Consider innovative techniques to address the problems associated with traditional zoning, especially around density, affordability, and inclusivity.