Rights in real property - Zoning laws

Learning Outcomes

After reading this article, you will be able to explain the legal basis for zoning, identify the main types of zoning ordinances, distinguish between conforming and nonconforming uses, and apply the rules regarding variances and special permits. You will also recognize how zoning interacts with constitutional principles and spot common exam pitfalls related to zoning law.

MBE Syllabus

For MBE, you are required to understand the principles and rules governing zoning laws as they affect rights in real property. This article covers:

• The constitutional and statutory basis for zoning authority.
• Types of zoning ordinances (cumulative and noncumulative).
• Treatment of existing nonconforming uses.
• Variances and special use permits.
• The relationship between zoning and private land use controls.
• Judicial review and constitutional challenges to zoning actions.

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. Which of the following is most likely to be upheld as a valid exercise of zoning power?
   1. A city ordinance banning all religious buildings.
   2. A city ordinance restricting industrial uses to certain districts.
   3. A city ordinance prohibiting all rental housing.
   4. A city ordinance requiring all homes to be painted the same color.
2. A property owner’s factory predates a new zoning ordinance that prohibits industrial uses in the area. What is the owner’s status?
   1. The use is illegal and must stop immediately.
   2. The use is a nonconforming use and may generally continue.
   3. The use is permitted only if the owner obtains a variance.
   4. The use is permitted only if the owner pays a fee.
3. Which of the following is NOT a typical requirement for obtaining a variance?
   1. Unique hardship.
   2. No harm to public welfare.
   3. The applicant’s financial gain.
   4. Compliance with the ordinance is unreasonable.

Introduction

Zoning laws are local regulations that control how land may be used within a municipality. Zoning is a primary tool for local governments to manage land development, separate incompatible uses, and advance public welfare. Zoning ordinances must comply with constitutional requirements and are subject to judicial review.

Key Term: Zoning Ordinance A local law dividing a municipality into districts and regulating the uses, density, and physical characteristics of land and buildings within those districts.

Zoning Authority and Types of Ordinances

Local governments derive zoning power from state enabling acts. Zoning ordinances typically divide land into districts (e.g., residential, commercial, industrial) and specify permitted uses and development standards.

Key Term: Cumulative Zoning A zoning scheme where higher-priority uses (e.g., residential) are allowed in zones designated for lower-priority uses (e.g., industrial), but not vice versa.

Key Term: Noncumulative Zoning A zoning scheme where only the uses specifically listed for a district are permitted; higher-priority uses are not allowed in lower-priority zones.

Nonconforming Uses

A nonconforming use is a lawful use that existed before a zoning change but does not comply with the new ordinance. Generally, nonconforming uses may continue, but expansion or substantial alteration is usually prohibited.

Key Term: Nonconforming Use A use of land or a structure that was lawful when established but does not comply with a subsequently enacted zoning ordinance.

Termination of Nonconforming Uses

Municipalities may encourage the eventual elimination of nonconforming uses through "amortization" (setting a deadline for discontinuance) or by prohibiting repairs and expansions. However, immediate termination is typically not allowed unless the use is a nuisance or abandoned.

Variances and Special Use Permits

A variance allows a property owner to use land in a way that deviates from the zoning ordinance due to unique hardship. The applicant must show that strict compliance is unreasonable and that the variance will not harm public welfare.

Key Term: Variance Permission granted by a zoning board to depart from the strict application of a zoning ordinance due to special circumstances.

Key Term: Special Use Permit Authorization to use land for a purpose not generally permitted in a zoning district, subject to specific conditions.

Requirements for a Variance

To obtain a variance, the owner must demonstrate:

• Unique hardship due to the property's characteristics.
• No reasonable use under existing zoning.
• The variance will not harm the public interest.

Constitutional and Judicial Limits

Zoning ordinances must comply with constitutional protections, including due process, equal protection, and the prohibition on takings without just compensation. Arbitrary or discriminatory zoning may be struck down by courts.

Key Term: Taking Government action that deprives an owner of all economically viable use of property, requiring just compensation under the Fifth Amendment.

Relationship to Private Land Use Controls

Zoning ordinances operate independently of private restrictions such as covenants or easements. Both must be followed, and neither excuses violation of the other.

Worked Example 1.1

A city enacts a zoning ordinance that prohibits commercial uses in a residential district. A bakery has operated in the district for 20 years before the ordinance is adopted. Can the bakery continue to operate?

Answer: Yes. The bakery is a lawful nonconforming use. It may generally continue, but expansion or significant alteration is usually prohibited unless the use is abandoned or destroyed.

Worked Example 1.2

A homeowner seeks a variance to build a garage closer to the property line than allowed by the zoning ordinance, claiming the lot is unusually narrow. What must the homeowner show?

Answer: The homeowner must demonstrate that the lot's unique shape creates a hardship, strict compliance is unreasonable, and the variance will not harm the public interest.

Exam Warning

Zoning ordinances that single out specific individuals or groups for unfavorable treatment, or that are not rationally related to a legitimate public purpose, may be invalidated as unconstitutional.

Revision Tip

Always check if a use is nonconforming or if a variance or special permit is required. Know the difference between cumulative and noncumulative zoning for exam questions.

Key Point Checklist

This article has covered the following key knowledge points:

• Zoning ordinances are local laws regulating land use and development.
• Cumulative zoning allows higher-priority uses in lower-priority zones; noncumulative zoning does not.
• Nonconforming uses that predate zoning changes may generally continue, but expansion is limited.
• Variances permit deviations from zoning rules due to unique hardship; special use permits allow certain uses subject to conditions.
• Zoning must comply with constitutional protections; arbitrary or discriminatory ordinances are invalid.
• Zoning ordinances and private land use controls operate independently.

Key Terms and Concepts

• Zoning Ordinance
• Cumulative Zoning
• Noncumulative Zoning
• Nonconforming Use
• Variance
• Special Use Permit
• Taking