Zoning
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Zoning is a North American term for a system of land-use regulation. The word is derived from the practice of designating permitted uses of land based on mapped zones which separate one part of a community from another. Zoning regulations fall under the police power rights governments may exercise over real property. Theoretically, its primary purpose is to segregate uses that are thought to be incompatible; in practice, zoning is used as a permitting system to prevent new development from harming existing residents or businesses. Zoning is commonly controlled by local governments such as counties or municipalities.
Zoning commonly includes regulation of the kinds of activities which will be acceptable on particular lots (such as open space, residential, agricultural, commercial or industrial), the densities at which those activities can be performed (from low-density housing such as single family homes to high-density such as apartment buildings), the height of buildings, the amount of space structures may occupy by limiting how close a building may be from the edge of the lot, the proportions of the types of space on a lot (for example, how much landscaped space and how much paved space), and how much parking must be provided.
Most zoning systems have a procedure for granting variances (exceptions to the zoning rules), usually because of some perceived hardship due to the particular nature of the property in question.
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Origins and history of zoning
New York City adopted the first zoning regulations to apply city-wide in 1916 as a reaction to construction of The Equitable Building (which still stands at 120 Broadway). The building towered over the neighboring residences and cast long shadows that diminished the quality of life for the people in the affected area. These laws, written by a commission headed by Edward Basset and signed by Mayor John Purroy Mitchel, became the blueprint for the rest of the country; partly because Edward Basset headed the group of planning lawyers which wrote The Standard State Zoning Enabling Act that was accepted almost without change by most states. By the late 1920s most of the nation had developed a set of zoning regulations that met the needs of the locality. New York City went on to develop ever more complex set of zoning regulations, including floor-area ratio regulations, air rights and others according to the density-specific needs of the neighborhoods.
Among large cities in the United States, Houston, Texas is unique in having no zoning ordinance. Houston voters have rejected efforts to implement zoning in 1948, 1962 and 1993. Thus Houston continues to be the largest city in the U.S. with no zoning.
Constitutional challenges
There have been notable legal challenges to zoning regulations. In 1926 the US Supreme Court upheld zoning as a right of U.S. states (typically via their cities and counties) to impose on landowners. The case was Village of Euclid, Ohio v. Ambler Realty Co. (often shortened to Euclid v. Ambler), 272 U.S. 365 (1926). The village had zoned an area of land held by Ambler Realty as a residential neighborhood. Ambler argued that it would lose money because if the land could be leased to industrial users it would have netted a great deal more money than as a residential area. Euclid won, and a precedent was set favorable to local enforcement of zoning laws.
The Euclid case was a facial challenge, meaning that the entire scheme of regulation was argued to be unconstitutional under any set of circumstances. The US Supreme Court justified the ordinance saying that a community may enact reasonable laws to keep the pig out of the parlor, even if pigs may not be prohibited from the entire community.
Since the Euclid case, there have been no more facial challenges to the general scheme. Beginning in 1987, several U.S. Supreme Court cases ruled against land use regulations as being a taking requiring just compensation pursuant to the Fifth Amendment to the Constitution. First English Evangelical Lutheran Church v. Los Angeles County ruled that even a temporary taking may require compensation. Nollan v. California Coastal Commission ruled that permit conditions that fail to substantially advance the agency's authorized purposes require compensation. Lucas v. South Carolina Coastal Council ruled that numerous environmental concerns were not sufficient to deny all development without compensation. Dolan v. City of Tigard ruled that conditions of a permit must be roughly proportional to the impacts of the proposed new development. Palazzolo v. Rhode Island ruled property rights are not diminished by unconstitutional laws that exist without challenge at the time the complaining property owner acquired title.
However, the landowner victories have been mostly limited to the U.S. Supreme Court despite that Court's purported overriding authority. Each decision in favor of the landowner is based on the facts of the particular case, so that regulatory takings rulings in favor of landowners are little more than a landowners' mirage. Even the trend of the U.S. Supreme Court may now have reversed with the 2004 ruling in the Tahoe case. Justice Sandra Day O'Connor, who had previously ruled with a 5-4 majority in favor of the landowner, switched sides to favor the government that had delayed development for more than 20 years because of the government's own indecision about alleged concerns to the water quality of Lake Tahoe.
Specific zoning laws have been overturned in some other U.S. cases where the laws were not applied evenly (violating equal protection) or were considered to violate free speech. In the Atlanta suburb of Roswell, Georgia, an ordinance banning billboards was overturned in court on such grounds. It has been deemed that a municipality's sign ordinance must be content neutral with regard to the regulation of signage. The City of Roswell, Georgia has now institued a sign ordinance that regulates signage based strictly on dimensional and aesthetic codes, rather than an interpretation of a sign's content (i.e. use of colors, lettering, etc.).
On other occasions, religious institutions sought to circumvent zoning laws, citing the Religious Freedom Restoration Act of 1993 (RFRA). The Supreme Court eventually overturned RFRA in just such a case, City of Boerne v. Flores 521 U.S. 507 (1997). However, Congress enacted the Religious Land Use and Institutionalized Persons Act (RLUIPA) in 2000 in an effort to correct the constitutionally objectionable problems of the RFRA. In the 2005 case of Cutter v. Wilkinson, the United States Supreme Court held RLUIPA to be constitutional.
Some limitations and criticisms of zoning
Land-use zoning is widely considered an important tool in the treatment of certain social ills, a part of the larger concept of social engineering. Some jurisdictions attempting to manage growth have turned to comprehensive planning to coordinate the growth of housing, industry, commercial with the impacts growth has on issues such as transport, utilities, recreation, schools, fire protection and police protection. Some have also adopted the idea of Form Based Code which prescribes the physical characteristics of a building and a build to line instead of the setback regulations you see with land use zoning.
Circumventions
Existing development in a community is generally not affected by the new zoning laws because it is "grandfathered", meaning the prior development is exempt from compliance. Consequently, zoning can only affect new development in a growing community. In addition, if undeveloped land is zoned to allow development, that land becomes relatively expensive, causing developers to seek land that is not zoned for development, and then seek rezoning of that land themselves. Communities generally react by not zoning undeveloped land to allow development until a developer requests rezoning and presents a suitable plan. Development under this practice appears to be piecemeal and uncoordinated. Communities try to influence the timing of development by government expenditures for new streets, sewers and utilities usually desired for modern developments. However, the development of interstate freeways for purposes unrelated to planned community growth, creates an inexorable rush to develop the relatively cheap land near interchanges. Property tax suppression measures such as California Proposition 13 have led many communities to disregard their comprehensive plans and rezone undeveloped land for retail establishments, desperate to capture sales tax revenue.
Social criticisms
In more recent times, zoning has been criticized by urban planners and scholars (most notably Jane Jacobs) as a source of new social ills, including the separation of homes from employment and the rise of "car culture." Some communities have begun to encourage development of denser, mixed-use neighborhoods that promote walking and cycling to jobs and shopping. However, a single-family home and car are major parts of the "American Dream" for nuclear families, and zoning laws often reflect this: in some cities, houses that do not have an attached garage are deemed "blighted" and are subject to redevelopment. Movements that disapprove of zoning, such as New Urbanism, generally try to reconcile these competing demands through creative urban design solutions that hark back to 1920s and 1930s practices.
Exclusionary zoning and housing affordability
Zoning regulations for lot size and limiting housing use have given rise to the rapid escalation of home values in many suburban communities. Zoning practices can be used to exclude affordable housing from a city or suburb. On the other hand, inclusionary zoning is a practice to require a certain component of affordable housing in each housing development.
In 1969 Massachusetts enacted Chapter 40B, a so-called anti-snob zoning statute. Under this law, developers may circumvent local zoning boards in municipalities with less than 10% affordable housing. Similar laws are in place in other parts of the United States. However, such practices remain common among suburbs wishing to exclude those deemed socioeconomically or ethnically undesirable: for example, representatives of the city of Barrington Hills, Illinois once told the Real Estate section of the Chicago Tribune that the city's 5-acre minimum lot size helped to "keep out the riff-raff." On the flip side failure to mandate minimum lot sizes has resulted in the exploitation of communities by developers planting "townhouse rows" in areas that did not have the road infrastructure to support the high-density housing and associated vehicle traffic. The area of Washington, DC, in particular Fairfax, Virginia, is a prime example of a total failure of ethical zoning practices.
See also
- Police power
- planning permission
- Subdivision (land)
- variance (land use)
- inclusionary zoning
- Mixed-use development