Zoning refers to the laws that divide cities into different areas according to use, from single family residences to industrial plants. Zoning ordinances control the size, location, and use of buildings within these different areas; zoning ordinances also control access to those buildings by regulating issues like lot size, setbacks, sidewalks, and parking.
Zoning partitions a municipality into districts, or zones, thus assigning distinct land use for each district. Most cities and towns have a zoning commission that generally will separate land use into categories such as residential, industrial, commercial, recreational, and agricultural.
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In some cases, further distinctions will be made, such as the division of industrial districts into heavy or light industry and the division of residential districts into single-family or multiple-family residences. Landowners may seek variances to allow them to develop or use their land in a way that is not compatible with the general zoning in their area, if the owner can establish that the zoning restriction imposes an unnecessary hardship or practical difficulty. Variances may take the form of dimensional variances or use variances. As their name suggests, dimensional variances deal with issues involving the size or proportions of a lot; these variances request relief from setback requirements, minimum lot size, and building height requirements. Such variances are relatively easy to obtain. Use variances are less likely to be granted, because they seek to use the land in a way that is contrary to the zoning ordinance, such as operating a store in a residential neighborhood. A variance might be granted if the land has previously been used in a way that does not conform with newer zoning restrictions, as long as that use has been continuous.
Zoning regulations can become controversial because they sometimes restrict the rights of owners to use their property the way they would like to. Courts have determined that zoning regulation is permissible if it is reasonable and not arbitrary. Zoning regulation must bear a substantial relation to public health, safety, morals, and general welfare. Zoning regulations may run afoul of the constitutional prohibition on unlawful takings: the Fifth Amendment provides that the government may not seize a citizen’s property without providing the citizen with just
compensation. However, a government need not seize the land for its own use in order to be guilty of a regulatory taking. A zoning ordinance rises to the level of a regulatory taking if it denies a landowner all productive use of his or her land. For instance, in Lucas v. South Carolina Coastal Council, a landowner had purchased two plots of beachfront property with the intention of building single-family homes on the plots. Two years after the purchase, the South Carolina legislature passed a law banning landowners from building permanent housing on such property. The Supreme Court found that the law effectively denied the landowner all economically valuable use of the land and thus counted as a regulatory taking in violation of the Fifth Amendment.
Courts also may strike down zoning regulations where they conflict with other laws. For example, a Michigan court has held that the local governments may not use zoning laws to prevent property owners from cultivating medical marijuana on commercial property on grounds that the cultivation is otherwise permitted by state law (DeRuiter v. Byron Township).
Land Use Laws
Zoning regulations are not the only restriction on land use. Broadly speaking, land use laws encompass:
- zoning regulations,
- building codes, and
- some environmental laws.
Federal, state, and local laws also regulate the development and use of land, especially if that development affects the surrounding environment, potentially harming the quality of water and air. Federal regulations on land use include statutes like the Resource Conservation and Recovery Act (“RCRA,” concerning the management of hazardous waste on sites currently producing such waste) and the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA,” regulating the disposal of hazardous waste on sites that are no longer active) as well as other environmental laws that deal with clean air and safe drinking water (such as the Clean Air Act and the Clean Water Act).
Other federal laws also affect land use, especially concerning the preservation of land (and landmarks). Two major federal laws have been passed in the last half century that curb the use of land significantly: the National Historic Preservation Act of 1966 (“NHPA”) and the National Environmental Policy Act of 1969 (“NEPA”). Among other things, the NHPA established a national register of historic landmarks and historic places and protects designated sites from destruction while imposing requirements for any development or renovation. NEPA requires that any major federally funded development project must evaluate the environmental effects of that project. President Obama also affected land use via executive order, establishing more than 30 national monuments. However, President Obama’s efforts have been challenged; whether a federal government can change land use by executive order may be decided in the courts.
Common Law Actions
Another restriction on land use stems from the actions of private individuals who seek rulings on land use by the courts. Typical situations involving private entities and the court system include:
- suits brought by one neighbor against another,
- suits brought by a public official against a neighboring landowner on behalf of the public,
- suits involving individuals who share ownership of a particular parcel of land.
In these settings, judicial determination and enforcement of private land use arrangements can not only reinforce public regulation but also achieve levels of control that zoning cannot.
LAST UPDATED: December 5, 2018
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