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Rules promulgated primarily by local governments (cities or towns), that determine and define to what uses the various parcels of property within the jurisdiction can be put.

Ultra-Vires Action:

An action that is beyond the scope of the authority of the party taking the action.

Residentially Zoned Area:

Commercially Zoned Area:

An area that is reserved, by zoning laws, for the operation of businesses.

Industrially Zoned Area:

An area that is reserved, by zoning laws, for usages involving mass production, such as factories.

Cumulative Zoning Scheme:

A zoning scheme, under which property that is zoned for a particular use can be used for that use and for any usage that is less harmful than the usage which the property is zoned for.

Zoning laws are rules that determine what can and cannot be done on, and with, land. There are many objectives that zoning laws seek to accomplish. The primary purpose is to separate people employing certain usages of the land in a manner that will be detrimental to other land owners from the people to whom such usage will be detrimental.

Authorization for Zoning Laws

Zoning laws are almost always enacted and enforced by local, and not statewide or nationwide, authorities. City governments, town governments, village governments and the like are merely functions of the state government. They derive all of their authority from the states in which they reside.

Therefore, for a local government to be able to pass a zoning law, the state government must first give it the power to do so. Generally, the states pass statutes allowing their cities and towns to govern certain aspects of their own land use law. These statutes are known as enabling acts because they enable the local governments to pass their own laws.

If a local government passes a law that is beyond the scope of its authority, the law is invalid. This type of law is known as an ultra vires local action. For example:

The State of Texas passes a statute authorizing its cities to limit the locations within cities where shopping malls can be built. The city of Corpus Christy passes a law stating that shopping malls can only be built in a specific square block radius and that any company that violates this law is fined $1,000,000. Although the first part of the local law is valid, the second part is clearly ultra vires because the state never gave authority for the local government to impose this type of penalty. The penalty part of the law is therefore void.

How Zoning Laws Operate

Zoning laws proceed under the basic assumption that property must be protected against uses of neighboring property that will be harmful to the use or enjoyment of the property. Therefore, residential areas are often kept apart from areas in which commercial and/or industrial uses are allowed. In addition, there are different gradations within the category of residential housing itself. Many zoning codes set aside areas for low density housing and prohibit high density housing in those areas. The industrial and commercial zones can also be divided by density of its usages.

It is generally assumed usages of property that are more dense (more heavily used) will be harmful to neighboring properties that are used less heavily. The reasons for this include an excess of traffic, noise and pollution that are an inevitable result of an increase in population density. In addition, it is assumed that neighboring commercial areas are likely to harm residential areas because of the increase in traffic and noise that they generate. Industrial areas are presumed to be harmful to both residential and commercial areas because of the pollution and noise that they invariably generate.

Therefore, zoning schemes, while recognizing that all types of zones are important, indeed vital, to the economic well being of a city, seek to confine the various usages of land in a manner that limits the harm that the usages can inflict on neighboring properties. For example:

The fictitious town of Podunk, Connecticut, categorizes all land use as being appropriate in one of six zones. The six zones are:

1) low density residential,

2) high density residential,

3) low density commercial,

4) high density commercial,

5) low density industrial and

6) high density industrial

The zoning board recognizes that the zones that are lower numbered in that list are likely to find enjoyment of their property difficult if they are situated next to zones that are higher on that list. Although the board recognizes that all six usages are vital to Podunk s economy, it wants to make sure that all six categories of people have enough room to operate their usages.

In addition, the board feels that there will be a minimum of inconvenience and harm caused if the zones that are next to one another on the list border each other. For example, having a high density industrial zone near a residential zone would be catastrophic to the residential houses because the pollution would make life virtually untenable for the occupants. On the other hand, having a high density commercial zone border a low density industrial zone would not do all that much harm to either zone. Therefore, the Podunk town board divides the city into six zones, along the following configuration:

In this way, Podunk can allow all six functions within its borders while, at the same time, limiting the harm that the various usages can cause to each other.

Cumulative Zoning

Some statutory zoning schemes classify land usages on a scale from the highest use (the use that is least harmful to its neighbors) to the lowest use (the use that is most harmful to its neighbors). The highest on that list would likely be the low density residential zone, because single family residences are least likely to cause disturbances to their neighbors. (Although, of course, in some cities, you might have even less harmful zones, such as farms etc.) The lowest use on the list would usually be high density industrial use, because of the extreme amount of pollution that often emanates as a result of such usage.

A cumulative zoning scheme will divide a city into zones and then allow a usage of property as long as the property is zoned for that usage or for a usage that is higher on the list. For example, under a cumulative zoning scheme, a person would be allowed to build a residence in an area that is zoned for commercial use because residential use would be higher on the list of zones. However, one would not be allowed to build a shopping mall in a residential zone because commercial use would be lower on the list than residential use.

The logic behind this scheme is simple. The purpose behind zoning laws is to protect usages that are higher on this list from harms inflicted by usages that are lower on the list. Therefore, there is no need to prevent usages that are higher than the usage that the zone calls for. For example:

Jerry buys a factory that is in the middle of Utopia City s garment district, which is zoned for industrial use. After operating the factory for years, Jerry s business goes under and he stops using the factory. Because of a demand in the real estate market, Jerry does not want to sell the factory. So, instead, he renovates the factory a little and starts renting out sections of the factory as apartments for people to live in. Assuming that Utopia has a cumulative zoning plan, this will be allowed, because Jerry s use (high density residential) is a higher use than is allowed under the zoning laws.

Mutually Exclusive Zoning

Some zoning plans exclude all uses that are not within the prescribed uses for an area, even those that are higher on the list of uses. These cities would not, for example, allow one to build a residence in a commercial district. There are several reasons that some cities eschew cumulative zoning plans in favor of a mutually exclusive zoning plan:

1) The mutually exclusive plan makes conflicts between neighbors less likely. If a residence were built in a commercial area, conflicts between the business owners and the residence owners would be more likely to erupt, because of the varying nature of their usages, than if the neighbors were both commercial users.

2) Public health concerns sometimes cause cities to enact mutually exclusive zoning. A person may be willing to live in a smog infested factory district; but that does not mean that the government will let him. Cities are reluctant to allow people to live in areas that are dangerous and/or unhealthy. Therefore, a city might say that a residence or business cannot be in an industrial zone etc.

3) Cities also may wish to preserve space for certain usages. It might be important to the city s economy that the industrial zone be used for industry. If developers find that it is more profitable to build shopping malls, and the factories are forced out, that might cause unemployment in the city to skyrocket. Thus, cities often want to reserve certain areas for certain usages.

Of course cities can, and in fact, most cities do, employ a hybrid between cumulative zoning and mutually exclusive zoning. They may set aside certain areas that can only be used for one purpose, other areas for another purpose and still other areas in which both purposes are allowed.

Application of Zoning Laws to Existing Usages

Problems often arise when a new zoning law outlaws a use of property that was legal up to that point. As we discussed in the previous subchapter, if a zoning law prohibits the erstwhile use of the property and eliminates the value of the property to the owner, the zoning law may constitute a taking and cause the government to have to pay just compensation. For example:

Pizza The Hut runs a successful restaurant in downtown Spacetown. One day, the Spacetown city council decides to revamp the way in which the city is laid out. They suddenly announce that the area in which Pizza operates his restaurant will henceforth be a residential area in which commercial businesses will not be allowed to operate. Pizza cannot readily convert his store into a house. In this case, Pizza may be able to receive just compensation from the City for his loss that the new zoning law caused. The City may be able to argue that Pizza still has economically viable use for the land, but it will be a close case, because Pizza is being forced to cease operations that were the cause of him buying and maintaining the property.

To avoid this problem, zoning laws often call for the gradual cessation of activities that violate the zoning law rather than the cessation of such activities all at once. A gradual enforcement of a new zoning law is called a forced phase out. For example:

Pizza The Hut runs a successful restaurant in downtown Spacetown. One day, the Spacetown city council decides to revamp the way in which the city is laid out. They suddenly announce that the area in which Pizza operates his restaurant will henceforth be a residential area in which commercial businesses will not be allowed to operate. However, the zoning law calls for an effective date 5 years after its date of passage. By that time, it might be reasonable to expect Pizza to convert his restaurant into a usage that is consistent with the zoning laws.

Most United States jurisdictions have held that forced phase outs can be valid to cause the zoning law to not be considered a taking. However, whether a forced phase out is actually considered a taking for a particular property will depend on the circumstances of the individual case. See Art Neon Co. v. City and County of Denver, 488 F.2d 118 (10th Cir. 1973). Some states, on the other hand, have held that forced phase outs are inherently invalid.

Of course, the above rules very often make it difficult for cities and towns to change their zoning laws to prohibit uses of property that are already in existence. What the towns and cities often do instead is to simply grandfather in and allow non-conforming uses that pre-date the passage of the new zoning law, while prohibiting any new usages that do not conform to the law. However, invariably, they will prohibit expansion of the non-conforming uses that are allowed because of their pre-dating the zoning law. For example:

Pizza The Hut runs a successful restaurant in downtown Spacetown. One day, the Spacetown city council decides to revamp the way in which the city is laid out. They suddenly announce that the area in which Pizza operates his restaurant will henceforth be a residential area in which commercial businesses will not be allowed to operate. However, the law stipulates that pre-existing commercial users, such as Pizza s restaurant are exempt from the zoning law. However, the law does state that no expansion can be made to any commercial establishment in the area. This rule is valid and is certainly not considered a taking. Pizza can continue to operate his restaurant, but he cannot expand his restaurant by building another wing to it, and he certainly cannot build another restaurant within the prohibited area.

Finally, it is important to note that most zoning boards are often empowered to grant variances and/or exceptions to people to whom the zoning laws would cause undue hardship or to whom it makes little sense to apply the zoning law. However, the standards set for application of these exceptions are often very high. See Aronson v. Board of Appeals of Stoneham, 349 Mass. 593 (1965) (a variance request to build a porch to accommodate a disabled child was rejected because there was not enough of a hardship). For example:

Lester wants to build a private school in Airmont, New York. The Airmont zoning code provides that a school must have at least one parking spot for every faculty member and one spot for every two students that the school intends to enroll. Lester s school is designed to be able to accommodate a maximum of 20 faculty members and 120 students. According to Airmont zoning rules, the school would require 80 parking spots. However, Lester s school has a rule that students may not drive to and from school under any circumstances. Therefore, Lester asks for a variance that will allow him to build the school with fewer parking spots than would otherwise be required. The town zoning board would be empowered to accommodate this request because the reason behind the zoning law does not apply in this case.

Some jurisdictions even allow conditional zoning rules, in which a person is allowed a variance or an exemption from a zoning rule if he or she agrees to abide by certain conditions set forth by the zoning board.