Zoning

Description: The premier land-use regulation method in the United States; divides urban areas into different sectors or zones, with different uses, regulations, and requirements.

Relevant amendments: First, Fifth

Significance: Most contested zoning legal issues were handled by one of the fifty state court systems and received final judgment in the state supreme courts; however, a few significant land-use cases found their way to the US Supreme Court.

Zoning derives its legitimacy from the police power, which is the right of state and local governments to regulate public health, safety, and welfare within their jurisdiction. State constitutions and statutes enable local governments to create their own zoning ordinances. Some states also created state zoning laws. The exact limits of the zoning power may seem fluid in time and place. Zoning power is ultimately what the courts determine it to be.

Euclid v. Ambler Realty Co. (1926) was one of the most significant legal decisions by the Supreme Court in the history of zoning. Chief Justice George Sutherland concluded that each community had the right and responsibility to determine its own character. Zoning was a valid use of the police power as long as it did not disturb the orderly growth of the region or the nation. Justice Sutherland wrote, “But this village, though physically a suburb of Cleveland, is a separate municipality, with powers of its own and authority to govern itself. . . . The will of its people determines, not that industrial development shall cease at its boundaries, but that such development shall proceed between fixed lines.”

The Court made it clear that a municipality may determine the nature of development within its boundaries and plan and regulate the use of land as the people within the community may consider it to be in the public interest. Justice Sutherland introduced the concept that a community must also relate its plans to the area outside its own boundaries. Thus, the Court sustained a village zoning ordinance that prevented Ambler Realty from building a commercial structure in a residential zone. This case first established the constitutionality of all parts of comprehensive zoning.

The courts continued to support the rights of municipalities to zone, and conventional “Euclidean zoning” became almost universal in both urban and suburban areas. The power to zone, as well as to use other, more flexible land-use controls, has an ideological dimension because it conflicts with the ability of property owners to use their property as they see fit. Typically, zones have been devoted to commercial, industrial, and residential uses, with different density requirements and other regulations.

Relationship to Taking Cases

In First English Evangelical Lutheran Church of Glendale v. County of Los Angeles (1987), the Court ruled that if landowners had been unduly burdened by land-use control regulations, they should be compensated by the government. Before this case, it was understood that a property owner might sue to have a regulation overturned, but it was not required that compensation be paid for losses incurred while the regulation was in force. The Court’s decision hinged on the last sentence of the Fifth Amendment: “nor shall private property be taken for public use, without just compensation.” Undue restriction of use, in the Court’s view, met the meaning of the word “taken” and therefore required compensation. Eventually when the case was sent back to a lower court, it was found that the taking had not occurred and that the church was not entitled to compensation. Despite the lower court’s decision, the Court’s ruling set the precedent that a government might be forced to pay a large judgment if its actions were found to constitute a taking. Some feared the possibility that local governments might have to pay large judgments to litigants who could prove that zoning power had been overused.

Later, in Lucas v. South Carolina Coastal Council (1992) and Dolan v. City of Tigard (1994), the Court upheld the limiting of the government’s authority to restrict the specific uses to which privately owned land could be devoted. For example, one opinion in the Lucas decision suggested that the one instance in which there might not need to be compensation, even though the property owner was deprived of all property use, was if that use might violate an established nuisance law. Some authorities speculated that the legal basis of zoning might be trimmed back to being totally dependent on nuisance law. Land-use regulations in Hadacheck v. Sebastian (1915) had evolved from nuisance law but had been expanded well beyond these limited origins to a much more extensive notion of the public interest.

Aesthetics and Exclusionary Zoning

Many legal experts believe that zoning and other police power regulations may not be adopted when their sole basis lies in aesthetics. Proponents of this theory cite Welch v. Swasey (1909) and decisions rendered by most of the state supreme courts. However, this view was challenged in Berman v. Parker (1954), in which Justice William O. Douglas, speaking for the unanimous Court opinion, stated, “If those who govern the District of Columbia decide that the Nation’s Capital should be beautiful as well as sanitary, there is nothing in the Fifth Amendment that stands in the way.” However, this case involved an effort to enjoin condemnation to preserve the natural beauty of urban renewal property. The Court was not confronted with a case in which police power was exercised in the form of a zoning ordinance and in which no compensation was paid. Yet state courts have applied Berman in zoning cases. Douglas clearly affirmed that citizens need not tolerate an unsightly community and may take legal steps to change it.

Race-based zoning ordinances, in which zoning laws were used to legally enforce residential segregation, were declared unconstitutional by the Supreme Court in 1917 in Buchanan v. Warley. This use of police power was a violation of the Fourteenth Amendment because it deprived a person of property without due process. However, such zoning regulations were soon replaced by restrictive covenants, which were private contracts or clauses contained in title deeds that prevented property owners from renting, selling, or transferring the property to members of a specific minority group. Because these covenants were not instituted by the state, they were not covered under Buchanan v. Warley. The Court found in Shelley v. Kraemer (1948) that while state enforcement of restrictive covenants was unconstitutional, voluntary adherence by private parties was not. It was not until 1968, in the case of Jones v. Alfred H. Mayer Co., that restrictive covenants were themselves declared unconstitutional.

Subsequently, the Court held in Arlington Heights v. Metropolitan Housing Development Corp. (1977) that a zoning ordinance does not necessarily violate the Constitution by restricting minority and low-income people; it must be shown that there was a deliberate exclusionary intent.

In a 2024 Supreme Court case, Sheetz v. El Dorado County, plaintiff George Sheetz attempted to build a small, prefabricated home in 2016 on property he owned in El Dorado County, California. Before being issued the permit, a local ordinance compelled Sheetz to pay a large sum to remedy the effects of local traffic congestion that would result from the construction project. The fee for the permit was standard for all applicants and distinguished neither the size of the construction project nor the actual impact on vehicular traffic. Sheetz sued El Dorado County as he believed the permit fee unlawfully exacted money from him. Sheetz argued that the cost of the permit should be commensurate with the traffic congestion caused by his construction project. In forcing Sheetz to pay according to a predetermined fee schedule, Sheetz maintained El Dorado County was violating his rights under the Takings Clause of the Fifth Amendment. In a unanimous decision, the US Supreme Court agreed. In citing previous cases such as Nollan v. California Coastal Commission and Dolan v. City of Tigard, the court held the Takings Clause made no distinction in providing protection against both legistative and local administrative directives that are ill-considered.

Bibliography

Babcock, Richard F. The Zoning Game: Municipal Practices and Policies. Madison, University of Wisconsin Press, 1966.

Burke, Barlow. Understanding the Law of Zoning and Land Use Controls. 3rd ed. New Providence, LexisNexis, 2013.

Crawford, Clan, Jr. Strategy and Tactics in Municipal Zoning. 2nd ed. Englewood Cliffs, Prentice, 1979.

Droze, Brent. "Sheetz v. County of El Dorado: The Supreme Court's Latest Restraint on Development Fees."

Hirt, Sonia A. Zoned in the USA: The Origins and Implications of American Land-Use Regulation. Ithaca, Cornell University Press, 2014.

"Historical Shift from Explicit to Implicit Policies Affecting Housing Segregation in Eastern Massachusetts." MassLegalServices, 1 Jan. 2000, www.masslegalservices.org/content/timeline-historical-shift-explicit-implicit-policies-affecting-housing-segregation-eastern. Accessed 4 Sept. 2024.

Mandelker, Daniel R. Land Use Law. 5th ed. Newark, LexisNexis, 2003.

Meck, Stuart, Paul Wack, and Michelle J. Zimet. "Zoning and Subdivision Regulations." The Practice of Local Government Planning. Ed. Charles J. Hoch, Linda C. Dalton, and Frank S. So. 3rd ed. Washington, ICMA, 2000, pp. 343–74.

Nelson, Robert H. Zoning and Property Rights: An Analysis of the American System of Land-Use Regulation. Cambridge, MIT Press, 1977.

"Property Rights & Land Use Supreme Court Cases." Justia, 2024, supreme.justia.com/cases-by-topic/property-rights-land-use. Accessed 4 Sept. 2024.

Van, Adam. "The Takings Clause of the Constitution and Eminent Domain: An Overview of Supreme Court Jurisprudence on Key Topics." Congressional Research Service, 22 May 2023, crsreports.congress.gov/product/pdf/R/R47562. Accessed 24 Sept. 2024.