Learning Outcomes
After reading this article, you will be able to explain the legal principles governing rezoning and other zoning changes, including the treatment of existing nonconforming uses, the concept of vested rights, and the constitutional limits on zoning amendments. You will be able to apply these principles to MBE-style questions and distinguish between lawful and unlawful zoning actions.
MBE Syllabus
For the MBE, you are required to understand how changes in zoning laws affect property rights and the limits on government power to alter land use regulations. For revision, focus on:
- The effect of rezoning on existing uses and structures.
- The concept of nonconforming uses and their permissible continuation or elimination.
- The doctrine of vested rights and when a property owner is protected from new zoning restrictions.
- The constitutional constraints (due process, equal protection, takings) on rezoning and other zoning changes.
- The procedures for challenging or enforcing zoning amendments.
Test Your Knowledge
Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.
-
A city rezones a district from commercial to residential. Which of the following best describes the status of a business that lawfully operated before the rezoning?
- The business must immediately cease operations.
- The business may continue as a nonconforming use, subject to reasonable regulation.
- The business is entitled to compensation for loss of value.
- The business may expand without restriction.
-
Which of the following is most likely to create a vested right protecting a property owner from a new zoning restriction?
- Obtaining a building permit and making substantial construction progress.
- Merely applying for a building permit.
- Advertising the intended use.
- Submitting a zoning variance request.
-
A city amends its zoning ordinance to prohibit all apartment buildings in a neighborhood. Which constitutional provision is most likely to be implicated if the city orders demolition of existing apartments without compensation?
- Equal Protection Clause
- Takings Clause
- Privileges and Immunities Clause
- Dormant Commerce Clause
Introduction
Rezoning and other zoning changes are common tools used by local governments to regulate land use. These changes can significantly impact property owners, especially those with existing uses or development plans. Understanding how the law treats nonconforming uses, vested rights, and the constitutional limits on zoning amendments is essential for the MBE.
Types of Zoning Changes
Zoning changes generally fall into two categories:
- Rezoning: Amending the zoning map to change the permitted uses for a particular area (e.g., from industrial to residential).
- Text Amendments: Changing the zoning ordinance's substantive rules (e.g., altering setback requirements or density limits).
Both types of changes can affect existing and planned uses of property.
Key Term: Rezoning The legislative act of changing the zoning classification of a parcel or area, altering the uses or development standards permitted by the zoning ordinance.
Nonconforming Uses
When a zoning change prohibits a use or structure that was lawful under the prior zoning, that use or structure becomes a nonconforming use.
Key Term: Nonconforming Use A use or structure that was lawful when established but does not comply with new or amended zoning regulations.
Treatment of Nonconforming Uses
- Continuation: Most jurisdictions allow nonconforming uses to continue, recognizing the property owner's reliance on prior law. However, the government may regulate or eventually eliminate such uses.
- Expansion: Expansion or significant alteration of a nonconforming use is usually prohibited unless specifically allowed.
- Destruction or Abandonment: If a nonconforming use is destroyed (e.g., by fire) or voluntarily abandoned, the right to continue the use is typically lost.
Key Term: Amortization A process by which a nonconforming use must be discontinued after a reasonable period, allowing the owner to recoup investment before termination.
Vested Rights
A property owner may acquire a vested right to complete a project or continue a use, even after a zoning change, if certain conditions are met.
Key Term: Vested Right The legal entitlement to complete a use or development, protected from subsequent zoning changes, typically arising after substantial reliance or investment.
How Rights Vest
- Building Permit + Substantial Reliance: If a valid building permit is issued and the owner makes substantial expenditures or construction progress in good faith reliance, a vested right is created.
- Mere Application Insufficient: Simply applying for a permit or planning a project does not create a vested right.
Constitutional Limits on Rezoning
Rezoning and other zoning changes are subject to constitutional constraints:
- Due Process: Zoning changes must be rationally related to a legitimate public purpose.
- Equal Protection: Zoning amendments must not discriminate arbitrarily between similarly situated properties.
- Takings Clause: If a zoning change deprives a property of all economically viable use or requires demolition of existing structures without just compensation, it may constitute a taking.
Key Term: Takings Clause The constitutional provision prohibiting the government from taking private property for public use without just compensation.
Worked Example 1.1
A city rezones a district from commercial to residential. A bakery has operated lawfully in the district for 20 years. After rezoning, the city notifies the bakery that it must close within 6 months. The bakery challenges the order.
Answer: The bakery is a lawful nonconforming use. The city may require eventual termination through amortization, but the period must be reasonable to allow the owner to recover investment. Immediate closure or an unreasonably short amortization period may be invalid.
Worked Example 1.2
A developer obtains a building permit for a 10-unit apartment building. Before construction begins, the city rezones the property to single-family residential. The developer has not yet spent significant funds. Can the developer proceed?
Answer: No. A vested right generally arises only after substantial construction or expenditures in reliance on a valid permit. Here, the developer has not made substantial progress, so the new zoning applies.
Exam Warning
Zoning changes that single out a small number of properties for different treatment (so-called "spot zoning") may be invalid if not justified by a legitimate public purpose.
Revision Tip
If a zoning change deprives a property of all economically viable use, analyze for a potential regulatory taking under the Takings Clause.
Key Point Checklist
This article has covered the following key knowledge points:
- Rezoning and zoning changes can create nonconforming uses, which are generally allowed to continue but may be regulated or phased out.
- A vested right to complete a use or development arises only after substantial reliance on a valid permit.
- Zoning amendments must comply with due process, equal protection, and takings principles.
- Amortization is a common method for phasing out nonconforming uses, but the period must be reasonable.
- Spot zoning and arbitrary discrimination in rezoning may be unconstitutional.
Key Terms and Concepts
- Rezoning
- Nonconforming Use
- Amortization
- Vested Right
- Takings Clause
