Legal Aspects of Zoning

Zoning has been succinctly described by one planner this way:

Zoning is the division of land uses in a community into categories by area and use. A zoning ordinance will be upheld if its terms are reasonably related to public health, safety, morals, or welfare. This means that (1) the ordinance must promote valid public purposes; (2) the means selected by the ordinance must be reasonably related to the goals and purposes of the ordinance; (3) the ordinance must not result in a "taking" of property; (4) zoning must be done in accordance with a comprehensive plan; and (5) the ordinance must not violate other constitutional provisions (e.g., equal protection). In ordinary cases of zoning litigation, the burden of proof is on the party attacking the ordinance.¹

Zoning ordinances can regulate height, bulk and use. This can include building size, shape, and placement. It can also include regulation of density. Zoning also controls uses within districts. Typically, there are permitted uses, which are allowed as of right (subject of course to meeting other permit requirements) and conditional uses, which are allowable uses within a distirct subject to administrative approval (usually before a planning commission) to ensure their compatibility and appropriateness. Be careful to distinguish between conditional uses and variances (see below).

There are a number of devices to provide flexibility in the zoning ordinance. Non-conforming uses and structures are uses and structures existing prior to the zoning ordinance (or a changed ordinance) and not in conformity with its provisions. Many ordinances allow their continuation unless they are destroyed or damaged to a certain percentage. Some ordinances require that non-conforming structures be amortized and discontinued after a certain period of time.

Amendments are changes in the ordinance. They are enacted by the legislative body (often on recommendation of the planning commission). The major issue here is to avoid the problem of spot zoning. Spot zoning is the rezoning of one (or a small number of) parcels in such fashion that the rezoning is not "in accordance with a comprehensive plan." Note that one can rezone a single parcel and this is not necessarily illegal.

Variances are granted by an administrative body (the Board of Zoning Appeals or Adjustment). In the strictest sense variances are granted only where there is hardship to the property, that is, where because of some peculiar aspect of the property (e.g., irregular shape), it cannot be used for the purposes for which it is zoned. In addition, variance requirements usually mandate a finding that the hardship was not brought on by the applicant, and that the proposed use will not be at variance with the zoning scheme of the character of the neighborhood. The individual provisions may vary from place to place. Personal hardship is not supposed to be grounds for granting a variance. In practice, this strictness is often not followed. In addition, variances are often granted by the legislative body of a municipality. Generally, courts will be more lenient toward area variances than they are toward use variance. Where a distinction is made, some courts will allow a use variance on a showing of hardship but area variances on a showing of practical difficulties. Some jurisdictions allow variances to be granted on unnecessary hardship or practical difficulties. The difference between a variance and a conditional use is that the conditional use is a lawful use contemplated by the ordinance, whereas a variance is a use of land not allowed within the ordinance but granted for reasons stated above.

Variances will be allowed when all the following are found:

1. a unique hardship peculiar to particular site;
2. more than just inconvenience or inability to make a higher financial return;
3. the variance is for the public good;
4. the hardship is not self-imposed;
5. the variance shall be minimum necessary to satisfy hardship.

...A Planned Unit Development (PUD) is a development that is specially approved by a unit of government on submission of a plan for development. Depending on the legislation, PUDs can allow mixed uses and can disregard traditional zoning requirements, such as setback lines and lot coverage requirements in order to achieve better design.

... Some devices also provide incentives. For example, a PUD plan may allow greater density than the existing zoning, granted in exchange for better development. Similarly, some ordinances provide incentives or density bonus for better designs (e.g., allowing a greater floor area ratio (FAR) when developers provide a plaza in front of the building).²

¹ Pearlman, Kenneth, AICP. "Planning Law." Department of City and Regional Planning, Ohio State University. 1989. p. 145.
² Ibid. pp. 148-149.

Suggested other pages...

Purposes of Zoning	Zoning versus the Master Plan