Why is zoning important? Zoning laws determine what kind of structures can be built, whether or not an existing property can be re-purposed, and even whether or not an existing structure can be replaced with something new at all. Of course, even if these aren’t changes you are currently considering, you might have a neighbor trying to make one of these changes… to the detriment of your own property.
Understanding zoning is important because it will in large part determine whether or not you get the change you want, and also whether or not you can prevent or modify the change you don’t want. In this article we’ll give you a practical guide to how zoning works, step by step.
I. The Purpose of Zoning
First of all, let’s start with the big picture. What exactly is zoning and what is its purpose? Zoning is the legislative process for dividing land into zones for different uses. Zoning laws are the laws that regulate the use of land and structures built upon it.
If you’ve ever dealt with a city, then you’ve probably heard some variation of the phrase “For the health, safety and general welfare of the public.” It means that every act of governance should (ideally) be made in the best interests of the people. Accordingly, zoning laws are created for the simple purpose of protecting the health, safety and general welfare of the people as relates to land use.
To achieve this purpose, zoning laws regulate the impacts of land use that may not be in the best interests of the people, generally including such things as:
- Protecting the value and enjoyment of properties by separating incompatible land uses and minimizing their potentially negative impacts upon each other
- Protecting the value and enjoyment of properties by allowing a property its most appropriate land use given its location and surrounding uses
- Providing for the orderly development of a city, including making provisions for land uses in the best interests of its citizens, and
- Providing adequate public infrastructure, e.g., roads, water and sewers
Cities want industrial uses for economic growth, but cities also want single-family residential areas for people to live. But will either the industrial users or residential users be happy if the two uses sit side-by-side? Not likely. When are neighboring uses happy? When they are compatible. This compatibility of the whole is the task of zoning; a sort of government-imposed “love thy neighbor as yourself.”
To accomplish this compatibility of uses, zoning gives the community a road map and a set of rules for driving. It considers how the city would like to grow. It then divides the city into different districts, limiting the uses allowed in each. It then creates laws regulating:
- How each district can be used (e.g., commercial, residential, agricultural),
- What types of buildings and other structures can be constructed within each district (e.g., size, number of stories, configuration)
- Where those structures can be located (e.g., setbacks, green space), and
- What measures the landowner must take to further compatibility with neighboring uses (e.g., buffers, flood control).
And then because the law recognizes life is not black and white, zoning laws provide flexibility for inevitable changes (who knew the state would construct that overpass, and make west-side ideal for retail instead of a quarry?) and also for inevitable special circumstances.
Let’s take a closer look at how zoning works.
II. The First Step: The Comprehensive Plan
How do you get from Boston to Los Angeles? Do you start driving in any direction and hope you’ll get there? Sure it might work, and sure a million monkeys banging on a million typewriters will eventually reproduce the entire works of Shakespeare. But you might have better chance of finding L.A. if you have a road map. A comprehensive plan (or “master plan”) is the road map a city creates to arrive at its desired social, economic, and physical development. Of course, because the growth of a city takes a little longer than a road trip across the U.S., comprehensive plans look long-term. Like five to 20 years long-term.
To create such plans a city considers what it wants regarding land use (including public infrastructure to support those uses), and how it will achieve it. For example, if a city decides it’s in the best interests of its population to be a hub for high-tech industry, it will designate areas within its boundaries for such industries.
The plan also acts as a guide for the creation of regulations that define what uses are permitted, what structures are permitted, their design, and where (both within a district and in relation to other districts) these uses and structures may be placed. The plan itself is not legally binging, but it’s the foundation for legally binding instruments like the zoning ordinance.
II.A. Creation of a Comprehensive Plan
A plan is created through a collaborative effort of planning professionals, the public, city staff, the city’s planning commission and the city’s governing body (and sometimes even neighboring communities).
The process is not universal, but creation generally begins by soliciting input from citizens and interested parties regarding how the city should evolve. If there is a developer who has, or wants to be, a part of the city’s growth, it makes sense to give them a place at the table. The city staff can then use this input to assemble, on its own or in concert with a planning consultant, a draft plan. The draft is given to the city’s planning commission, who reviews it with staff advice. If the commission finds the plan satisfactory, it is forwarded to the city council with a recommendation for approval (if the plan wasn’t ideal, the commission can put it back in staff’s hands for changes).
The council is the final decision-maker. Because the plan is supposed to be the vision and desire of the public, and serve their general welfare (and not the desires of a few commissioners or councilpersons), the council may seek further public testimony before it approves, approves with modification, or denies the plan.
II.B. What’s In a Comprehensive Plan?
Pictures and words, maps and text. Where streets, sewers and other infrastructure should go. Where different land uses should go. What are limitations on these uses and the structures supporting them? Again, the plan’s recommendations aren’t an instruction for the city to run out and grow, but rather a road map for getting to L.A…. over five to 20 years.
You may be wondering why should you care about the plan? Well, if you’re a landowner who may develop your property, or sell it to another to do so, you might want to let your voice be heard in the creation of a plan. Or if you are a resident who lives next to undeveloped land (or land ripe for redevelopment), or who believes the city should grow in a certain way, attract certain uses (remember that idea to become a hub for high-tech industry?), again you’ll want to make your voice heard.
What if a plan already exists? Then you better make sure you know what it says about the property you own, the property next to you, and the property across the city. The plan could play a large part in the value of your ground and the type of community you are (or might be) living in, building in, or running a business in.
Often a city will maintain a copy of its plan on the city’s official website. If it can’t be found there, a call to City Hall (and likely a couple of transfers to get you to the planning department) will unearth the plan.
III. The Second Step: The Zoning Ordinance
You have the road map to L.A. Now what? How about you learn which roads have the highest speed limits, or are the most direct route, or which allow your type of vehicle? In zoning, the how-to details of the comprehensive plan are established in a city’s zoning ordinance. This ordinance is the local (e.g., county, city, township, etc.) set of regulations governing land uses and structures within the local government’s boundaries.
III.A. Creation of a Zoning Ordinance
How is the ordinance created? See above. Seriously. The creation of the ordinance is similar to the comprehensive plan’s creation and approval: staff and planning consultants (often lawyers) create a draft ordinance; a public hearing is held (or multiple hearings) for public input; the draft is modified by staff and consultants; eventually a draft ordinance is given to the planning commission for review; more public input; commission makes a recommendation to the council; more public input; approval, approval with modifications, or send it back to the commission. Rinse and repeat.
Unlike the plan, because the ordinance is a legally binding instrument, and provides the rules dictating how and where land can be used, its creation must clear certain legal hurdles. One of the principal hurdles is ensuring the ordinance complies with the law.
Why should you care? Well, unless you’re the city who will have to defend challenges to the ordinance, you shouldn’t, or at least won’t, until you believe you’ve been treated unfairly. Below are some of the laws to be considered:
- Federal and state common law (court decisions; check out Village of Euclid, Ohio v. Ambler Realty Co., 272 U.S. 365 (1926) and Penn Central Transportation Co. v. New York City, 438 U.S. 104 (1978) if you want to impress your friends and know the stories behind two of zoning’s landmark cases)
- State and federal statutes, codes and regulations
- The Religious Land Use and Institutionalized Persons Act of 2000 (“RLUIPA” protects individuals, houses of worship, and other religious institutions from discrimination in zoning)
- Federal Fair Housing Act (Title VIII of the Civil Rights Act of 1968)
- Sections 332(c)(7) and 1455(a) of the Communications Act (which imposes limitations on state and local land use authority to make zoning decisions over certain wireless facilities), and
- Endangered Species Act of 1973 (ESA; 16 U.S.C. § 1531 et seq.)
It should be noted that the ordinance, like all laws, is not set in stone. It can be amended, and generally mirrors the creation process.
One interesting issue that can occur in the amendment arena is when (1) a city wants to make a change to the ordinance, (2) hasn’t determined yet what that change should be, but (3) wants to temporarily halt development that, while lawful under the current ordinance, would be prohibited under the likely change, until (4) the city has had time to make well-reasoned analysis and planning decision. Such a temporary stop is referred to as a moratorium. While lawful, the moratorium must be reasonable because landowners seeking to develop their properties will be delayed (or prevented from developing if the ultimate change prohibits the use they intended).
Courts will consider whether the moratorium advances a legitimate governmental interest, is being made in good faith, and doesn’t deprive the landowner of all reasonable use for too long. If it fails these criteria, it may be characterized as a regulatory taking (we’ll talk about takings in a little bit). Again, if you want to impress your friends with your knowledge of landmark zoning cases, the Super Bowl of moratorium decisions is Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, 535 U.S. 302 (2002).
III.B. What’s in a Zoning Ordinance?
Zoning ordinances generally cover three areas: (1) a zoning district section defining different types of use districts (e.g., commercial district, residential district) and the regulation of these uses; (2) a performance standards section defining regulations that apply uniformly to all districts (e.g., parking, noise, fencing and signage standards); and (3) an administrative section outlining procedures for requests under the ordinance (e.g., notices are required for a conditional use permit (“CUP”), the number of days a person has to approve a denial of rezoning).
As with a comprehensive plan, a city’s zoning ordinance is often found on the city’s official website (hint: click until you find the city code or the planning department’s page). If not, a quick call to City Hall should point you in the right direction.
III.B.1. The Zoning District Section
III.B.1(i). District Types and Uses
If the goal of land use-compatibility to serve the health, safety and welfare of the public can be met, the first step is defining land uses. The broad use categories are commercial, residential, industrial and agricultural. Of course, just as all ice cream does not come in the same flavor, all commercial uses are not the same, all industrial uses are not the same, etc. Accordingly, cities break down these broad categories into as many sub-categories and districts as needed. For example, the residential category may be divided into R-1 for single-family on less than 1 acre, R-2 for single-family on less than 0.5 acres, R-M1 for multi-family with a density of 50 units per acre, R-M2 for multi-family with 100 units per acre, ad infinitum.
Ordinances may include other types of districts for special circumstances, such as floating districts, mixed-use districts, or planned use districts (“PUDs”). Floating districts are those districts permitted under the ordinance, but haven’t yet been placed on the zoning map. They’re often employed for unique land uses (e.g., major entertainment centers, intense industrial uses) that are anticipated in the future, but for which no specific location has yet been identified, or districts to afford special protection when needed, such as historic or floodplain districts. Essentially the zone floats over the community until a use meeting its criteria materializes and a site is identified. At this point the zone floats earth.
Mixed-use districts allow for a combination of broader use categories (e.g., both commercial and residential), and are often used in downtown areas.
A PUD (Planned Use District) is a type of mixed-use development (often residential, retail and office) with a cohesive design plan. To encourage the feasibility of such developments, a city may waive or modify regulations that would otherwise be required of the individual uses. This is done to allow flexibility in the development’s design.
Historic districts are created to preserve structures that are significant historically, architecturally or culturally. Regulations in these districts limit the structures’ demolition or modification, or, if new construction is proposed, require that it conform to certain requirements (e.g., built in the same type of architecture).
Once district categories are established, the ordinance then spells out the uses permitted within each. Typical use types include:
- Permitted Uses: Permits for these expressly listed uses are issued as a matter of right.
- Conditional Uses: CUPs are given at the discretion of a city, on a permanent basis, so long as the attendant conditions are met. CUPs are needed where the use could negatively impact properties unless it operates under certain conditions.
- Accessory Uses: These uses are, in addition to the parcel’s principal use, customary, appropriate, subordinate, incidental to, and serve the principal use. For example, typical accessory structures in residential districts include garages, decks, swimming pools and storage sheds.
One quick aside: annexation. Cities may be able to expand their boundaries through annexation of neighboring unincorporated land. The ordinance may include rules dictating how annexed property will be zoned when brought within city limits.
One more quick aside: legal non-conforming uses (“LNCU”). A non-conforming use is any use, structure or building that doesn’t comply with the zoning ordinance. Where the use was originally in compliance, but the regulations changed to make it non-compliant, the use became an LNCU. As the name suggests, these uses are lawful, and may continue, but under the ordinance they’ll face certain restrictions. Common restrictions are:
- The use must be made compliant within a certain period of time (an “amortization period”)
- The use cannot be expanded
- If the LNCU is changed, it may not return to the prior use, and
- Where the property is damaged beyond a certain point, it may not be repaired
III.B.1(ii). Regulation of Districts
Once you know your use is permitted, to determine what you can build you’ll have to check the regulations, i.e., ordinance’s details. The devil is in the details.
As a general caution, while a city has the right to regulate uses, if such regulation effectively deprives a landowner of all economically reasonable use or value of their property, it can be considered a regulatory taking. A taking in the real property arena refers to the government exercising its power of eminent domain to acquire ownership of private property for a public use or benefit. While a government has this right, if they use it they must compensate the landowner for the loss of his land.
In the case of a regulatory taking, the government hasn’t taken title to the property, but because its regulations rendered the land essentially worthless, the regulation is viewed as a taking. Time for the city to get out its checkbook.
With that said, regulations most commonly dictate the size, density and location of structures within a parcel, as well as parking and green space requirements. Size can relate to the footprint, height, number of stories, etc. Density refers to the amount of development allowed per acre, calculated either by the number of dwelling units per acre (for residential) or floor area ratio (for commercial). Location is governed in part by setbacks, the distance between structures and property lines.
The zoning ordinance may potentially regulate how property looks through “aesthetic” regulations. These are used to maintain aesthetic features within a district by permitting only uses, designs and structures that conform to or complement the area’s existing structures. Examples include limitations on parking, setbacks, the colors and architecture of structures, and types of landscaping, roofs and building materials.
The ordinance may also impose regulations to protect natural resources such as: (1) prohibiting building within floodplains, or requiring remediation if floodplains are eliminated; and (2) mitigating the impact of shoreline development by, for example, requiring larger setbacks from a shoreline.
Additionally, some ordinances will highly regulate uses the city wishes to minimize, such as the sale of alcohol, adult uses, and the operation of pay-day loan businesses. Such regulations often stipulate these uses must be a certain minimum distance from schools or churches, though other conditions appear. The zoning regulation of adult uses is especially complex as Constitutional issues of free speech are involved.
Lastly, as described below, the ordinance will allow for a “variance” from some of these regulations where circumstances merit.
III.B.2. Administrative Section
This section describes how actions under the ordinance are reviewed, approved, denied and appealed. It typically details:
- Who is in charge of each action (e.g., city staff, planning commission, city council, or board of zoning adjustment (“BZA”; sometimes called a board of zoning appeals))
- What form the applications must take
- What steps are involved (e.g., public notice, hearings, adoption, etc.), and
- Deadlines for each step
As these items vary among jurisdictions, it’s only appropriate to note here the two most important procedural directions: (1) follow the ordinance’s procedures, and (2) do it in a timely manner. Cities and courts generally strictly interpret these provisions. If the ordinance states appeals of denials must be made within 30 days of the council’s decision, and you file on the 31st day, well, there are smarter things you could do.
III.C. What Actions are Considered Under the Ordinance?
Zoning ordinances will typically govern applications for rezonings, conditional use permits, and variances.
In order to change a property’s zoning district, application must be made for a rezoning. Because this act is an amendment to the ordinance’s district map, the procedure for rezoning is the same as for an amendment to the ordinance. A rezoning application may be judged not only on its compliance with the ordinance, but in some cases its compliance with the comprehensive plan.
One situation that will fail this consideration is “spot-zoning.” Spot zoning occurs when a parcel is zoned differently than its surrounding uses for the sole benefit of the landowner. While property may lawfully be zoned differently than its surrounding uses, such varying uses are typically permitted because they serve a public benefit or a useful purpose to the other properties. For example, sound-planning policies would permit a school to be located in the center of a residential neighborhood. Locating an adult bookstore in the same neighborhood would not.
III.C.2. Conditional Uses
As noted above, conditional uses for each district are set forth in the ordinance, and are uses which need “special attention.” They may not be the primary intended use in a district, and may have some negative attributes, but if they comply with certain conditions, they can be beneficial. A common example is allowing a convenience store or gas station in a residential area. If the negative aspects of the use can be minimized through conditions, the use will be valuable to the area. If the use requested in a CUP application is one of the conditional uses specified in the ordinance, and if the conditions are accepted, the permit must be granted as a matter right.
Variances may be granted, at the city’s discretion, to relieve a party from strict compliance with zoning regulations where such compliance would result in a practical difficulty or unnecessary hardship for the landowner. Variances typically are only available for exceptions to physical regulations (e.g., setback requirements) and not to uses, but some jurisdictions allow for variances from the permitted uses.
IV. Who Makes the Zoning Decisions?
You’ve hit the road, road map in hand, a binder of all the details that impact your progress to L.A., and then you see the toll booth ahead. And the flashing blue lights of the police car behind. And the tow truck driver pulling a car that had gotten lost on his journey. The help and approval of all these people will determine if your drive is a success. In zoning, these gatekeepers are the city’s zoning staff, the planning commission, the Board of Zoning Adjustment (BZA) , and the city council.
IV.A. City Staff
An old adage for people who regularly work with public bodies is that elected officials change every couple of years, but staff is there forever. Accordingly, if you work well with staff, they can make the process easier and (providing your request is reasonable) become an unofficial advocate for project after project.
Staff are the first folks to touch a zoning request. They review the application and work with the applicant to ensure it’s compliant with the zoning ordinance. They then make a recommendation on the application, as well as advice to, the planning commission, city council or BZA depending on the request. Although staff has no authority to approve or deny applications, the other bodies often value their expertise and guidance, and may defer to their opinions.
IV.B. Planning Commission
Many cities have a planning commission, comprised of residents appointed by the city council (commissioners may, but are not required to have real estate, legal, engineering or other backgrounds valuable to land use decisions), who act in an advisory capacity to the city council. Depending on local and state law, planning commissions are often the first body to consider CUPs, rezonings, PUDs, and the creation of and amendments to the comprehensive plan and zoning ordinance.
Some planning commissions will consider applications for variances, though this responsibility can also fall to the BZA. The commission conducts public hearings, takes evidence, creates a record of the proceedings, and then makes a recommendation of approval, approval with modifications, or denial of the application to the city council.
IV.C. Governing Body
The city council is the final decision-maker on all zoning applications, though in some jurisdictions it may delegate its authority to another body (e.g., the planning commission). The council however cannot delegate its authority over rezoning decisions, as they are most often considered a legislative act, and only the governing body has legislative authority. In those jurisdictions that characterize rezoning as administrative rather than legislative, the council can delegate the decision-making authority to non-legislative bodies.
IV.D. Board of Zoning Adjustment (or Appeals)
Some jurisdictions create a BZA to (1) hear and act upon variance applications, and (2) hear appeals to rezoning denials where the basis for appeal is an alleged irregularity in the council’s application of the ordinance. In some cases the BZA will act like the planning commission, and make only recommendations to the council. BZA decisions may, depending on the zoning ordinance, be subject to appeal directly to the courts or to the council.
Now you understand the basics of the purpose of zoning, the creation of its guiding documents, its zoning ordinance, how zoning applications are made and appealed, and who makes these determinations. You have the road map and maybe even a GPS to get you to L.A…
And what is your take-away? Well, you can decide for yourself, but given the complexities and variations between jurisdictions of what you’ve just read, you might want to take a passenger along for the ride who has already made the trip many, many times. What I’m saying is, because this article is only for informational purposes, and not to give legal advice, if you have any particular zoning issues, please consult a licensed attorney.