Learning Outcomes
This article examines the fundamental principles of zoning law relevant to the MBE. It explores the source of zoning power, the different types of zoning ordinances, the concepts of nonconforming uses and variances, and related constitutional limitations (excluding regulatory takings). After reviewing this material, you will be equipped to identify and analyze zoning issues presented in MBE questions, understanding the key rules governing land use regulation.
MBE Syllabus
For the MBE, you are expected to understand the basic concepts of government regulation of land use through zoning. This includes knowing the authority for zoning, its general purposes, and mechanisms for flexibility and relief like nonconforming uses and variances. Specifically, you should be prepared to:
- Identify the source of zoning power (state police power).
- Recognize the objectives of zoning (e.g., segregation of uses, density control).
- Distinguish between cumulative and noncumulative zoning ordinances.
- Analyze the status and limitations of nonconforming uses.
- Understand the requirements for obtaining a variance (area and use).
- Recognize basic constitutional limitations (Due Process, Equal Protection) as applied to zoning, excluding takings.
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.
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The primary constitutional basis for state and local government power to enact zoning ordinances is:
- The Takings Clause of the Fifth Amendment
- The Supremacy Clause
- The state's police power
- The Contracts Clause
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A property owner operates a small bookstore in an area recently rezoned exclusively for residential use. The bookstore existed before the rezoning. This use is best described as:
- A variance
- A special use permit
- A nonconforming use
- An illegal use
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To obtain a use variance, an applicant typically must demonstrate:
- That the proposed use is permitted in an adjacent zone.
- That the ordinance imposes an unnecessary hardship.
- That the property value has decreased due to the zoning.
- That the requested use is more profitable than permitted uses.
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Which type of zoning ordinance permits "higher" uses (e.g., residential) in zones designated for "lower" uses (e.g., industrial), but not vice versa?
- Noncumulative zoning
- Exclusionary zoning
- Cumulative zoning
- Spot zoning
Introduction
Zoning is the primary method by which local governments regulate land use to control development, protect property values, and advance public health, safety, and general welfare. Zoning ordinances divide a municipality into districts (zones) and prescribe regulations for each district concerning the types of uses permitted (e.g., residential, commercial, industrial) and the physical configuration of buildings (e.g., height, bulk, setback requirements). This power stems from the state's police power, delegated to municipalities through enabling acts. While zoning broadly impacts property rights, this article focuses on its fundamental operation, excluding the complex issue of regulatory takings.
Key Term: Zoning The division of a municipality (or other government unit) into districts, and the application of regulations in each district concerning the use of land and the use, bulk, height, and placement of structures.
The Power to Zone
The authority for zoning originates from the state police power—the fundamental power of state government to regulate private conduct for the protection of the health, safety, welfare, and morals of its citizens. States typically delegate this power to local governments (cities, counties) through zoning enabling acts. These acts authorize municipalities to enact zoning ordinances, provided they are exercised reasonably and pursuant to a comprehensive plan.
Comprehensive Plan
Most enabling acts require that zoning regulations be made "in accordance with a comprehensive plan." This plan is intended to ensure that zoning decisions are the result of thoughtful planning for the community's overall development, rather than arbitrary or piecemeal decisions. The plan might be reflected in a detailed plan document, the zoning ordinance text itself, or evident from the overall zoning scheme.
Types of Zoning Ordinances
Zoning ordinances primarily regulate two aspects: the use of land and the physical structure of buildings.
Use Restrictions
Ordinances classify land uses, typically separating residential, commercial, and industrial uses. The traditional model is cumulative zoning, which creates a hierarchy of uses (e.g., single-family residential as the "highest" use, followed by multi-family, commercial, and then industrial). In a cumulative zone, any "higher" use is permitted in a "lower" use district, but not vice-versa. For example, single-family homes could be built in a commercial zone, but a store could not be built in a single-family residential zone.
An alternative is noncumulative zoning (or exclusive zoning), where only the specified use is permitted within a particular zone. For example, in an industrial zone, only industrial uses would be allowed; residential or commercial uses would be prohibited.
Structural Restrictions
Ordinances also commonly regulate:
- Lot size: Minimum square footage for a parcel.
- Setbacks: Minimum distance structures must be from property lines.
- Building bulk: Maximum footprint or floor area ratio (FAR).
- Building height: Maximum height restrictions.
- Density: Limits on the number of dwelling units per acre.
Flexibility in Zoning
Zoning ordinances are not entirely rigid. Mechanisms exist to provide flexibility and relief from strict application.
Nonconforming Uses
A nonconforming use is a use of land or a structure that was lawful before a zoning ordinance was enacted (or amended) but which does not conform to the use restrictions of the current ordinance.
Key Term: Nonconforming Use A use or structure that was legal when established but does not conform to the restrictions of a later-enacted (or amended) zoning ordinance.
- Right to Continue: Generally, the owner has a right to continue the nonconforming use. This right stems from due process concerns about arbitrarily eliminating established property uses without compensation.
- Limitations: This right is not absolute and is subject to several limitations designed to eventually eliminate the nonconforming use:
- Abandonment: If the owner ceases the nonconforming use for a specified period with the intent to abandon it, the right to the use is lost. Mere non-use is typically insufficient; intent must be shown.
- Destruction: If the nonconforming structure is destroyed (usually beyond a certain percentage), the right to rebuild the nonconforming use is typically lost.
- Amortization: Some ordinances permit nonconforming uses but require them to be phased out ("amortized") over a set period deemed reasonable to allow the owner to recoup their investment. The validity of amortization provisions varies by jurisdiction.
- Expansion/Change: Expanding the nonconforming use or changing to a different nonconforming use is generally prohibited or strictly limited. Routine repairs and maintenance are usually permitted, but substantial structural alterations are often forbidden.
Worked Example 1.1
A small grocery store has operated legally in a neighborhood for 30 years. The city then rezones the area exclusively for single-family residential use. The grocery store continues to operate. The owner decides to add a small deli counter within the existing store space. Is this permissible?
Answer: Probably not. The grocery store is a lawful nonconforming use. However, adding a deli counter, even within the existing space, likely constitutes an impermissible expansion or change of the nonconforming use. Zoning ordinances typically restrict intensification or alteration of such uses.
Variances
A variance is an administrative permission granted by a zoning board (often called a Zoning Board of Adjustment or Appeals) allowing a landowner to depart from the literal requirements of a zoning ordinance. Variances provide necessary flexibility, preventing zoning from imposing undue hardship or becoming confiscatory (which could trigger a takings issue). There are two main types: use variances and area variances.
Key Term: Variance Permission granted by a zoning authority to a property owner to deviate from the literal provisions of a zoning ordinance where strict enforcement would cause undue hardship.
- Use Variance: Permits a use of land that is otherwise prohibited in that zone (e.g., allowing a small professional office in a residential zone).
- Standard: Generally harder to obtain. Requires the applicant to demonstrate unnecessary hardship, meaning the property cannot yield a reasonable return as currently zoned, the hardship is unique to the property and not self-created, granting the variance will not alter the essential character of the neighborhood, and the hardship is not merely economic inconvenience.
- Area Variance: Permits a modification of lot size, setback, height, floor area, or similar requirements (e.g., allowing a building to encroach slightly into a required setback).
- Standard: Generally easier to obtain. Often requires showing practical difficulties in meeting the ordinance requirements, rather than the stricter "unnecessary hardship." Courts balance the benefit to the owner against the potential harm to the neighborhood.
Worked Example 1.2
Landowner owns an oddly shaped lot in a residential zone. Due to the lot's peculiar dimensions, building a house that complies with the minimum side-yard setbacks required by the zoning ordinance is impossible. Landowner applies for permission to build slightly closer to the side lot lines than the ordinance permits. What type of permission is Landowner seeking, and what must they generally show?
Answer: Landowner is seeking an area variance. To obtain it, Landowner typically must show practical difficulties resulting from the unique shape of the lot (not self-created) and that granting the variance will not substantially harm the public good or impair the intent and purpose of the zoning plan. They do not usually need to meet the stricter "unnecessary hardship" standard required for a use variance.
Other Flexibility Devices
- Special Use Permits (or Conditional Use Permits): Allow uses that are potentially compatible with a zone but require individual review to ensure they meet specific conditions and do not harm the area (e.g., hospitals, schools, churches in residential zones). Unlike variances, the use is permitted by the ordinance itself, subject to meeting stated conditions.
- Zoning Amendments (Rezonings): Changes to the zoning ordinance itself, either the text or the zoning map. These are legislative acts and must generally comply with the comprehensive plan and state enabling act procedures. Spot zoning, which singles out a small parcel for a use classification inconsistent with the surrounding area and solely for the private benefit of the owner (rather than the public good), is generally invalid.
Constitutional Limitations
Zoning ordinances must comply with constitutional limitations, primarily the Due Process and Equal Protection Clauses of the Fourteenth Amendment (and comparable state provisions). Regulations must be reasonable and bear a rational relationship to legitimate governmental objectives (health, safety, welfare). They cannot be arbitrary, discriminatory, or (as noted, outside the scope of this article) confiscatory to the point of being a taking without just compensation.
Exam Warning
MBE questions often test the limits on nonconforming uses. Remember that while the use can continue, it generally cannot be expanded, changed, or rebuilt after substantial destruction. Also, distinguish variances (hardship-based departures) from special/conditional uses (uses permitted by the ordinance itself if conditions are met).
Revision Tip
Focus on the different standards for use variances (unnecessary hardship) versus area variances (practical difficulties). Understand the policy goal behind nonconforming uses (protecting investment) and the limitations aimed at their eventual elimination.
Summary
Zoning ordinances, derived from state police power, regulate land use and building characteristics according to a comprehensive plan. Key concepts include the distinction between cumulative and noncumulative zoning, the protected but limited status of nonconforming uses, and the availability of variances to provide flexibility where strict application causes unnecessary hardship or practical difficulties. Zoning actions must be reasonable and serve legitimate public purposes, consistent with constitutional due process and equal protection principles.
Key Point Checklist
This article has covered the following key knowledge points:
- Zoning power derives from state police power, delegated via enabling acts.
- Ordinances must align with a comprehensive plan.
- Zoning regulates land use (cumulative vs. noncumulative) and structure dimensions.
- Nonconforming uses (pre-existing legal uses now violating the ordinance) are generally allowed to continue but cannot be expanded, changed, or rebuilt after substantial destruction.
- Variances allow departure from ordinance requirements.
- Use variances require showing "unnecessary hardship."
- Area variances typically require showing "practical difficulties."
- Special use permits allow uses listed in the ordinance, subject to conditions.
- Spot zoning (arbitrary rezoning of small parcels) is generally invalid.
- Zoning must meet constitutional due process and equal protection standards (rational basis review unless a fundamental right or suspect class is involved).
Key Terms and Concepts
- Zoning
- Nonconforming Use
- Variance
