Rights in real property - Zoning (fundamentals other than re...

Learning Outcomes

This article examines key zoning law principles for the MBE, including:

• The source and scope of zoning power in the state police power and enabling acts.
• The structure and operation of zoning ordinances, distinguishing use restrictions from structural or bulk controls.
• How cumulative and noncumulative zoning schemes allocate permitted uses across districts.
• The doctrine governing nonconforming uses, vested rights in projects underway, and common methods for phasing out nonconformities.
• The standards and procedures for obtaining use and area variances, and how they differ from special/conditional use permits.
• How zoning amendments, rezonings, and potential spot zoning fit within a comprehensive plan.
• Core constitutional constraints on zoning—primarily substantive and procedural Due Process and Equal Protection—while excluding detailed regulatory takings analysis.
• Strategic exam skills, such as identifying when a fact pattern raises issues of hardship, abandonment, amortization, or arbitrary board action.
• The typical ways these doctrines are tested on the MBE, helping you quickly eliminate distractors and choose the legally strongest answer.

MBE Syllabus

For the MBE, you are required to understand government regulation of land use through zoning, with a focus on the following syllabus points:

• The source of zoning authority in the state police power and state enabling acts.
• The objectives of zoning (e.g., separating incompatible uses, controlling density, promoting health and safety).
• The distinction between cumulative and noncumulative (exclusive) zoning schemes.
• The status, protection, and gradual elimination of nonconforming uses and structures.
• The requirements and standards for variances (use and area) and how they differ from special/conditional use permits.
• The concept of spot zoning and the role of zoning amendments (rezoning).
• Basic constitutional limits (Substantive Due Process and Equal Protection) as applied to zoning, excluding regulatory 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.

1. The primary constitutional basis for state and local government power to enact zoning ordinances is:
   1. The Takings Clause of the Fifth Amendment
   2. The Supremacy Clause
   3. The state's police power
   4. The Contracts Clause
2. 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:
   1. A variance
   2. A special use permit
   3. A nonconforming use
   4. An illegal use
3. To obtain a use variance, an applicant typically must demonstrate:
   1. That the proposed use is permitted in an adjacent zone.
   2. That the ordinance imposes an unnecessary hardship.
   3. That the property value has decreased due to the zoning.
   4. That the requested use is more profitable than permitted uses.
4. Which type of zoning ordinance permits "higher" uses (e.g., residential) in zones designated for "lower" uses (e.g., industrial), but not vice versa?
   1. Noncumulative zoning
   2. Exclusionary zoning
   3. Cumulative zoning
   4. 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, morals, 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).
• The physical configuration of buildings (e.g., height, bulk, setback requirements, lot coverage, and density).

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 governmental 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.

Key Term: Police Power
The basic authority of a state to regulate private conduct, including land use, to protect the health, safety, morals, and general welfare of its citizens.

Zoning is a form of public land use control. It coexists with private controls such as easements and real covenants. On the MBE, you may see questions where both zoning restrictions and private covenants apply; they operate independently, and the more restrictive control usually governs the owner’s actual use.

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, towns, counties) through zoning enabling acts. These acts authorize municipalities to enact zoning ordinances, provided they are exercised reasonably and pursuant to a comprehensive plan.

Key Term: Zoning Enabling Act
A state statute that delegates zoning power to local governments and sets procedural and substantive limits on how that power may be used.

Local zoning ordinances that exceed the authority granted by the enabling act are ultra vires (beyond the municipality’s power) and invalid. For MBE purposes, if the facts say that the city acts “pursuant to a valid state enabling act,” you should assume the basic delegation requirement is satisfied and focus on other issues.

Comprehensive Plan

Most enabling acts require that zoning regulations be made "in accordance with a comprehensive plan." This requirement is meant to ensure that zoning decisions are the result of coherent planning for the community's overall development, rather than arbitrary or piecemeal decisions.

Key Term: Comprehensive Plan
A long-range, general plan for the physical development of a community that provides the policy framework for zoning regulations.

The comprehensive plan may appear as:

• A separate formal planning document adopted by the local legislature.
• The overall structure of the zoning ordinance and zoning map themselves.
• A combination of planning reports and the ordinance scheme.

Courts give substantial deference to local legislative judgments in adopting a plan and zoning ordinance. A zoning scheme will generally be upheld so long as it is rationally related to legitimate objectives such as controlling congestion, separating incompatible uses, and promoting orderly growth.

Legislative vs. Administrative Zoning Decisions

It is useful to distinguish:

• Legislative actions: Adopting or amending the zoning ordinance or zoning map (including most rezonings). These actions are entitled to strong deference and are usually upheld if the issue is “fairly debatable.”
• Administrative or quasi-judicial actions: Decisions by zoning boards on variances, special use permits, and appeals from zoning officials. These are reviewed to ensure they are not arbitrary, capricious, or illegal and that the board applied the ordinance correctly.

This distinction helps explain why it is typically harder to overturn a zoning ordinance itself than to overturn an individual variance decision.

Types of Zoning Ordinances

Zoning ordinances primarily regulate two aspects: the use of land and the physical structure of buildings.

Key Term: Use Regulation
Zoning rules that control the types of activities that may occur on land in a particular district (e.g., residential, commercial, industrial).

Key Term: Structural (Bulk) Regulation
Zoning rules that control the physical dimensions and placement of buildings (e.g., height, setbacks, floor area ratio, lot coverage).

Use Restrictions

Ordinances classify land uses, typically separating residential, commercial, and industrial uses and often subdividing them further (e.g., single-family vs. multi-family residential). The traditional model is cumulative zoning.

Key Term: Cumulative Zoning
A zoning approach that creates a hierarchy of uses (e.g., single-family residential as the "highest" use, followed by multi-family, commercial, and then industrial). Higher uses are allowed in lower-use districts.

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 (also called exclusive zoning).

Key Term: Noncumulative (Exclusive) Zoning
A zoning approach under which only the specified uses are permitted in a zone; higher uses are not automatically allowed in lower-use districts.

Under noncumulative zoning, if an area is zoned industrial, a factory may be built, but residences or retail stores may not, unless expressly listed as permitted uses in that district.

Some jurisdictions also employ:

• Overlay zones: Additional requirements layered over existing zoning (e.g., historic districts, floodplain overlays).
• Planned Unit Developments (PUDs): Large, comprehensively planned developments where zoning rules are applied more flexibly in exchange for an overall coordinated plan.

While these details are less likely to be tested explicitly, they sometimes explain why fact patterns mention “planned development” or “special district” approvals.

Structural Restrictions

Ordinances also commonly regulate the physical form and intensity of development. Typical structural or "bulk" regulations include:

• Lot size: Minimum square footage for a parcel.
• Setbacks: Minimum distance structures must be from property lines, streets, or other buildings.
• Building bulk / floor area ratio (FAR): Maximum footprint or total floor area of a building relative to lot size.
• Building height: Maximum height in feet or stories.
• Lot coverage: Maximum percentage of the lot that may be covered by buildings.
• Density: Limits on the number of dwelling units per acre (e.g., not more than four units per acre).

These structural controls are often tested through variance questions: a landowner cannot meet a setback, height, or lot size requirement and seeks relief from the zoning board.

Flexibility in Zoning

Zoning ordinances are not entirely rigid. Mechanisms exist to provide flexibility and relief from strict application, recognizing that uniform rules can produce unfair or inefficient results in particular cases.

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.

Two common nonconforming situations:

• An existing use or structure that no longer complies after a zoning change (e.g., an existing store in an area rezoned residential).
• A project under construction when zoning changes (where the owner may claim vested rights).

Key Term: Vested Rights (Zoning)
The right of a property owner to complete a project and use property under the old zoning when sufficient work has been lawfully commenced in reliance on a valid permit before a zoning change takes effect.

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.

However, the doctrine protects the existing use, not the owner's plans for future expansion or a different use. The goal is to protect prior investment, not to guarantee the highest possible future profit.

Limitations on Nonconforming Uses

The right to maintain a nonconforming use is not absolute. Common limitations include:

• No expansion or intensification
  Expanding the nonconforming use—either by increasing its physical size or significantly intensifying operations—is generally prohibited.

  • Insignificant changes and ordinary repairs are usually allowed.
  • Doubts are often resolved against allowing expansion.

• No change to another nonconforming use
  The owner typically may not change from one nonconforming use to a different nonconforming use (e.g., from a nonconforming retail use to a nonconforming industrial use), even if the new use seems “similar” or allegedly less harmful.

• Destruction or substantial damage
  If a nonconforming structure is destroyed or substantially damaged (often more than 50% of its value), the right to rebuild in nonconforming form is generally lost. The owner may rebuild only in conformity with current zoning.

• Abandonment or discontinuance
  If the owner ceases the nonconforming use for a specified period and intends to abandon it, the right to the use is lost.

  • Many ordinances treat a specified period of non-use (e.g., 6 or 12 months) as conclusive evidence of abandonment; others require proof of intent.
  • Mere temporary cessation for repairs, seasonal fluctuations, or involuntary interruptions (e.g., fire) usually do not constitute abandonment.

• Amortization
  Some ordinances permit existing nonconforming uses but require them to be phased out ("amortized") over a set period deemed reasonable to allow the owner to recoup investment.

  • For example, a city might allow a junkyard to continue operating for five years after rezoning to residential, after which it must close.
  • The validity of amortization provisions varies by jurisdiction, but many courts uphold them if the period is reasonable.

Exam focus:
On the MBE, a preexisting legal use made nonconforming by a zoning change is generally protected from immediate elimination, but the owner cannot expand it, change it to another nonconforming use, or restart it after abandonment or substantial destruction without new approval.

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:
The grocery store is a lawful nonconforming use. The key question is whether adding a deli counter is an impermissible expansion or a permissible minor change. Many zoning ordinances treat intensification or substantial alteration of a nonconforming use as prohibited, even within the existing building. Unless the ordinance allows limited expansion or treats the deli as an insubstantial change, the addition is likely an impermissible expansion of the nonconforming use.

Worked Example 1.2

A small diner operates on land that has been validly rezoned to residential use only. Before the zoning change, the owner had hoped eventually to add a gas station on part of the lot but did not obtain any permits or begin construction. After the rezoning, the owner hires a contractor and begins building the gas station. The city issues a stop-work order. The owner argues the gas station is a protected nonconforming use. Is the owner correct?

Answer:
No. The nonconforming use doctrine protects the existing diner, not the planned gas station. The gas station represents a different and more intense use and was not established, permitted, or substantially under construction before the zoning change. The owner has no vested right to the gas station, so it must comply with the new residential zoning.

Vested Rights in Projects Underway

Sometimes a developer has begun work under the old zoning when the law changes. Whether they have a protected right to complete the project depends on:

• Whether they obtained necessary building permits before the ordinance took effect, and
• Whether they made substantial expenditures or progress in reliance on those permits.

Mere purchase of land or preliminary planning usually is not enough; there must be significant, lawful reliance on the earlier zoning.

Variances

A variance is an administrative permission granted by a zoning board (often called a Zoning Board of Appeals or Adjustment) allowing a landowner to depart from the literal requirements of a zoning ordinance. Variances provide necessary flexibility, preventing zoning from imposing undue hardship or effectively making the land unusable.

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 or practical difficulty, and the deviation is consistent with the public interest.

There are two main types: use variances and area variances.

Key Term: Use Variance
A variance that allows a land use otherwise prohibited in the zone (e.g., a commercial use in a residential district).

Key Term: Area Variance
A variance that relaxes dimensional or numerical requirements (e.g., setbacks, height, lot size, lot coverage) while retaining the existing permitted use.

Use Variances

A use variance permits a use of land that is otherwise prohibited in that zone (for example, allowing a small professional office in a residential zone).

Because a use variance undermines the basic use structure of the zoning plan, it is usually harder to obtain than an area variance. The applicant typically must show unnecessary hardship, often in the form of several elements:

• The property cannot yield a reasonable return if used only for permitted purposes (mere loss of the most profitable use is not enough).
• The hardship is due to unique circumstances of the property (e.g., shape, topography), not the general conditions in the neighborhood.
• The hardship was not self-created by the owner (e.g., buying land knowing its zoning limitations usually defeats the claim).
• Granting the variance will not alter the essential character of the neighborhood or impair the zoning plan.

Economic inconvenience alone, or a desire to maximize profit, does not satisfy unnecessary hardship.

Area Variances

An area variance permits a modification of lot size, setback, height, floor area, parking, or similar requirements while keeping the use within the permitted category (e.g., allowing a house to encroach slightly into a required side yard).

Area variances are generally easier to obtain. Many jurisdictions require the applicant to show practical difficulties in meeting the ordinance requirements, which is a less demanding standard than unnecessary hardship. Courts often:

• Balance the benefit to the owner against potential harm to the neighborhood or public, and
• Consider whether the variance is the minimum necessary to afford relief.

Worked Example 1.3

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 arising 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 need not show that the property would be completely unusable without the variance, only that strict compliance is impractical.

Worked Example 1.4

Owner has a house in a residential district. The zoning ordinance allows only residential uses in that district. Owner wants to convert the ground floor into a small retail store and seeks permission from the zoning board. Owner argues that the house is located on a busy street corner, so a store would be more profitable. What type of variance is sought, and is the board likely to grant it?

Answer:
Owner is seeking a use variance because the proposed retail store is not a permitted residential use. To obtain it, Owner must show unnecessary hardship—typically that the property cannot reasonably be used for any permitted residential purpose. The fact that a store would be more profitable than residential use is not enough. Absent evidence that the property is unsuitable for residential use, the board should deny the variance.

Other Flexibility Devices

In addition to variances, zoning systems often include other mechanisms for flexibility.

Special Use Permits (Conditional Use Permits)

Some uses are potentially compatible with a zone but may create special impacts requiring individual review (e.g., hospitals, schools, churches, gas stations, or large parking structures in residential areas). These uses are often listed in the ordinance as special, conditional, or specified uses.

Key Term: Special Use (Conditional Use) Permit
An approval allowing a use listed in the ordinance as permitted only upon satisfaction of specified conditions (e.g., traffic, noise, parking), granted after individualized review.

Key points:

• Unlike a variance, a special use is expressly contemplated by the ordinance for that district.
• The applicant need not show hardship; they must show that the proposed use meets the ordinance’s listed conditions and standards.
• Denial of a special use permit that meets all criteria may be arbitrary and subject to judicial reversal.

Zoning Amendments (Rezonings)

Zoning ordinances can be amended legislatively, either:

• Text amendments: Changing the language of the ordinance (e.g., adding a new use category).
• Map amendments: Changing the zoning classification of specific parcels (rezoning).

Rezoning decisions must follow the procedures in the enabling act and generally must be consistent with the comprehensive plan.

Spot Zoning

Key Term: Spot Zoning
A zoning map amendment that singles out a small parcel for a use classification inconsistent with the surrounding area, primarily for the private benefit of the owner rather than the community.

Spot zoning is generally invalid if:

• It is inconsistent with the comprehensive plan and surrounding uses, and
• It lacks a legitimate public purpose (e.g., is purely to favor one owner).

However, a small-area rezoning that serves a legitimate planning goal and fits the comprehensive plan is not considered impermissible spot zoning.

Worked Example 1.5

A city’s comprehensive plan designates a neighborhood as low-density residential. Almost all parcels are zoned accordingly. The city council amends the zoning map to rezone a single corner lot to heavy commercial use to allow a large truck depot, solely at the request of the lot’s owner. No similar commercial uses exist nearby, and the council cites no public benefit other than increased tax revenue for that parcel. A neighboring homeowner challenges the rezoning as spot zoning. Is the homeowner likely to succeed?

Answer:
Yes. The rezoning singles out a single parcel, creates a commercial “island” in a residential area, and appears inconsistent with the comprehensive plan’s low-density residential designation. If the primary effect is to benefit the individual owner, without a coherent public planning rationale, the rezoning is likely invalid as impermissible spot zoning.

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). Questions on the MBE typically test these concepts at a rational basis level.

Substantive Due Process

Because ordinary land use restrictions affect property rights, which are not treated as fundamental rights in this context, zoning ordinances are generally upheld if they are:

• Reasonably related to a legitimate governmental objective, such as:
  • Protecting health and safety (e.g., fire limits, building codes).
  • Reducing traffic congestion.
  • Preventing overcrowding.
  • Separating incompatible uses (e.g., industrial and residential).
  • Preserving aesthetics or neighborhood character (in many jurisdictions).
• Not arbitrary or irrational.

The burden is on the challenger to show that the ordinance bears no rational relationship to any legitimate objective. Courts are highly deferential. The classic case upholding general zoning (Village of Euclid v. Ambler Realty Co.) is reflected in the MBE approach: if the rationale is “fairly debatable,” the ordinance is usually valid.

Worked Example 1.6

A city adopts an ordinance requiring every rental apartment to have at least one full bathroom for each bedroom, individual washer/dryer hookups, and a covered parking space. Low-income housing owners argue that the ordinance will reduce affordable units because they cannot recoup the cost of compliance through rent increases. An owner brings a facial challenge under the Due Process Clause. Who bears the burden, and what standard applies?

Answer:
The owner bears the burden of showing that the ordinance lacks any rational relationship to a legitimate governmental interest. Because the ordinance involves economic and social regulation, it is subject to rational basis review. The city can plausibly argue that the ordinance promotes health, safety, and welfare by ensuring adequate sanitation and parking. Even if it has adverse effects on low-income housing, it is likely to be upheld.

Procedural Due Process

Zoning can also implicate procedural due process when government decisions are individualized and affect specific property owners, such as:

• Decisions on variances, special use permits, or specific development approvals.
• Administrative enforcement actions (e.g., revocation of a permit).

In these contexts, affected owners are generally entitled to:

• Notice of the proposed action.
• An opportunity to be heard by a fair, impartial decisionmaker (often the zoning board).

However, legislative actions, such as adoption or amendment of a zoning ordinance applicable to large areas, typically do not require individualized hearings; the political process is considered sufficient.

Equal Protection

Zoning classifications can be challenged under Equal Protection. Most zoning classifications (e.g., distinctions between single-family and multi-family housing, or between various business types) are subject to rational basis review:

• The classification must be rationally related to a legitimate governmental interest.
• The challenger must show that the classification is arbitrary.

If a zoning regulation involves a suspect classification (race, national origin) or burdens a fundamental right (e.g., certain First Amendment activities), stricter scrutiny may apply. For instance:

• Zoning aimed at adult theaters or adult bookstores may raise First Amendment issues.
• Regulations that effectively bar group homes for people with disabilities may be scrutinized more carefully, although disability is not a federal suspect classification.

These more specialized constitutional issues usually appear in Constitutional Law questions; for Real Property zoning questions, assume rational basis unless the facts clearly signal otherwise.

Relationship to Takings (Excluded Here)

If zoning regulations go so far that they deprive an owner of all economically viable use of land, or otherwise excessively burden property rights, they may amount to a regulatory taking requiring just compensation under the Fifth Amendment. Regulatory taking analysis is a separate topic and is outside the scope of this article, but you should recognize that extreme zoning restrictions can raise takings issues in addition to due process concerns.

Exam Warning

MBE questions often test the limits on nonconforming uses and the standards for variances:

• While a nonconforming use can continue, it generally cannot be expanded, changed to another nonconforming use, or rebuilt after substantial destruction.
• Distinguish variances (hardship-based departures from the ordinance) from special/conditional uses (uses permitted by the ordinance itself if conditions are met).
• For constitutional challenges to zoning, remember the rational basis presumption of validity and the challenger’s burden.

Revision Tip

Focus on:

• The different standards for use variances (unnecessary hardship) versus area variances (practical difficulties/balancing).
• The policy behind protecting nonconforming uses (vested investment) and the mechanisms for their gradual elimination (no expansion, abandonment, amortization).
• The difference between spot zoning (often invalid) and legitimate small-area rezonings that further the comprehensive plan.

Summary

Zoning ordinances, derived from state police power and implemented through state enabling acts, regulate land use and building characteristics according to a comprehensive plan. Key concepts for the MBE include:

• The distinction between cumulative and noncumulative zoning schemes.
• The protected but limited status of nonconforming uses and vested rights, and the rules governing expansion, abandonment, and destruction.
• The availability of variances to provide flexibility where strict application causes unnecessary hardship (use variances) or practical difficulties (area variances).
• The role of special/conditional use permits as approvals for uses listed in the ordinance, subject to conditions, distinct from variances.
• The concept of spot zoning and the requirement that rezonings be consistent with the comprehensive plan and serve legitimate public purposes.
• The requirement that zoning actions comply with Due Process and Equal Protection, typically under a rational basis standard, unless a fundamental right or suspect classification is clearly involved.

Understanding how these concepts interact in fact patterns will enable you to analyze zoning issues efficiently on the MBE.

Key Point Checklist

This article has covered the following key knowledge points:

• Zoning power derives from state police power, delegated via zoning enabling acts.
• Ordinances must be adopted in accordance with a comprehensive plan.
• Zoning regulates both land use (cumulative vs. noncumulative) and structural dimensions (height, setbacks, density).
• Nonconforming uses are pre-existing legal uses made noncompliant by a later zoning change; they are generally allowed to continue but cannot be expanded or changed and are lost upon abandonment or substantial destruction.
• Vested rights may protect projects already substantially underway under old zoning when a change occurs.
• Variances allow departure from ordinance requirements:
  • Use variances require showing unnecessary hardship and are strictly scrutinized.
  • Area variances typically require showing practical difficulties and are assessed by balancing interests.
• Special or conditional use permits authorize uses listed in the ordinance, subject to conditions, without a hardship showing.
• Spot zoning—rezoning a small parcel inconsistent with the plan and surrounding uses for private benefit—is generally invalid.
• Zoning regulations must satisfy constitutional Due Process and Equal Protection standards, usually under rational basis review.

Key Terms and Concepts

• Zoning
• Police Power
• Zoning Enabling Act
• Comprehensive Plan
• Use Regulation
• Structural (Bulk) Regulation
• Cumulative Zoning
• Noncumulative (Exclusive) Zoning
• Nonconforming Use
• Vested Rights (Zoning)
• Variance
• Use Variance
• Area Variance
• Special Use (Conditional Use) Permit
• Spot Zoning