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On the Level-Zoning in the United States.

September 1, 2007
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Of all the laws and regulations important to surveyors, zoning laws and ordinances are a daily concern to those professionals involved in land planning and subdivision. Zoning has been employed for almost one hundred years as a device to control the use of land in the United States.

In the first few decades of the 20th century, zoning was applied primarily to prevent the encroachment of industry into residential neighborhoods of the cities.

The decades following World War II saw the rapid development of the suburbs as young post-war families sought affordable housing in desirable areas. Mortgage-guaranty programs offered by the federal government for housing, and the construction of ex-urban highway systems and new public school systems encouraged the suburban movement. Zoning provided for consistent and predictable land uses and, in the following decades, became an important legal device in the suburbs along with subdivision control and building permit (licensing) regulations.



The Public Response

Depending upon one’s point of view, zoning may be seen as an encroachment on the rights of the landowner, as an important sociological tool for the betterment of living standards, as a response to snobbery or as a protection of property values. These competing interests have resulted in a confusing body of legislative initiatives and judicial responses. Perhaps more than any other area of law in the United States, zoning law has involved an active public participation in its enactment and administration. A lively debate takes place in a community whenever significant zoning changes are considered. A typical contest is between individual homeowners and an owner of a large parcel who seeks to develop his land. Homeowners oppose nearby land uses they consider incompatible with residential use. City or town administrators may seek to encourage a more intense use of the land for its potential tax revenue value. Social economists may call for housing to be more affordable than it is in the existing neighborhood.



Early Aspects of Zoning

In its earliest application, zoning in the United States was intended to protect single-family neighborhoods. Zoning established districts in which specified uses would be allowed by right while all other uses were prohibited. A zoning ordinance or bylaw would typically create residential, commercial and industrial districts. Eventually these three districts, if not so defined originally, would be further specified into subdistricts. There might be three residential districts: single family detached, multi-family, duplex and so on. Commercial and industrial designations might also be broken down to specific density or type. But zoning, as a land use control, applied dimensional controls to the use of land as well. Minimum parcel size for specific uses were mandated and minimum setback clearances of buildings from property lines and street lines were established. As zoning became more sophisticated, building-to-land ratios and floor area ratios were imposed. Accordingly, zoning entails two main applications of control: use control and dimensional control. (The surveyor is the expert in that area of zoning entailing dimensional control. But when asked for a zoning opinion the surveyor should never discuss the use of a specific property and whether it complies with the local zoning ordinance.)

The Constitutionality of Zoning

Zoning, as a concept of land use control in the United States, was considered in its constitutionality by the United States Supreme Court in 1926. In Village of Euclid v. Ambler Realty Co.,1 the Court upheld zoning by recognizing the common law nuisance doctrine. In considering the undesirability of apartments in single-family residential neighborhoods, the Court concluded, “A nuisance may be merely a right thing in the wrong place, like a pig in a parlor instead of the barnyard.” In applying this argument to the zoning question the Court observed that “apartment houses, which in a different environment would be not only entirely unobjectionable but highly desirable, come very near to being nuisances.”2

Communities in the United States have adopted “Euclidian zoning” through ordinance or bylaw, but usually with enabling legislation passed by state legislatures. As zoning has grown and expanded in the 80+ years since Euclid v. Ambler, each region of the country has developed zoning control according to its own geographic, sociological and political realities. The purposes of zoning are typically spelled out in legislation as for the promotion of the health, safety, convenience, morals or welfare of the inhabitants of the city or town. But Richard F. Babcock, author of The Zoning Game, quotes the words of one early commentator suggesting an overriding concern of government leaders: “The zoning map ‘stabilized property values’ and that was what the city fathers were interested in.”3

Conflict

In the United States market economy, the right to own and to use land is historic and embedded in the Constitution.4 The imposition of zoning constraints by which property owners were restricted in the use of their land has been opposed at both the legislative and the judicial levels of government. In Euclid v. Ambler, the U.S. Supreme Court made its earliest affirmation of the right of local governments to adopt zoning regulations. A later statement by the Court held that “[t]he concept of the public welfare is broad and inclusive. … The values it represents are spiritual as well as physical, aesthetic as well as monetary. It is within the power of the legislature to determine that the community should be beautiful as well as healthy, spacious as well as clean, well-balanced as well as carefully patrolled.”5 But home-owners and businessmen complained that newly passed zoning ordinances and bylaws threatened to make a current, ongoing use of their land illegal. Allowances were to be made on behalf of landowners in such situations.

The drafters of the earliest zoning ordinances or bylaws recognized the burden on owners of existing land uses that did not conform to new zoning dictates. These were identified as pre-existing nonconforming uses, and were to be found in nearly every district zoned. Pre-existing conditions might involve uses not allowed in a district, or might be deficient in the dimensional requirements, such as a building standing too close to a property line or street sideline. For constitutional as well as political purposes, the drafters of legislation creating zoning allowed nonconforming uses to continue as they were at the time of zoning adoption, or under later zoning amendments, subject to certain provisions that forbade:

(1) enlargement or extension of the nonconforming uses;

(2) resumption of nonconforming uses after their discontinuance for a stated period of time;

(3) the changing of nonconforming uses to any other than uses of a higher classification; and

(4) the rebuilding or reconstruction of nonconforming uses after a certain extent of damage or destruction.6

Other problems, besides the issue of pre-existing nonconforming uses, arose during the early days of zoning in the States. Some land parcels, because of local conditions, were found to be overly burdened by zoning constraints; and zoning was often found to be inflexible in its application. In future columns we will examine the measures adopted to provide relief and flexibility in the application of zoning; the downside of zoning as it has restricted the supply of affordable housing in many areas; and various legislative responses to regulatory barriers to housing.

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