Zoning & Land Use


What are land use and zoning?

In the United States, governments started regulating land use, or human activity on land, when Americans migrated from rural to urban areas. As urban populations grew, cities enacted land use laws to manage the competing needs and land uses of the residential and business sectors.

Land use laws come from different sources. The federal government regulates land use mainly through statutes, such as the National Environmental Policy Act (42 U.S.C. § 4321 et seq) and the National Historic Preservation Act (16 U.S.C. § 461 et seq). Local governments (cities and counties) regulate land use primarily through zoning ordinances. Finally, private citizens may also regulate land use through nuisance lawsuits or entering into contracts which impose restrictive covenants on land. For example, a land deed may include a restrictive covenant that limits the use of land to the building of single family homes.

Governments regulate land use in many different ways. One of them is through zoning. Usually, a municipality will develop a comprehensive land use plan to map out land development within its boundaries. As part of this plan, the municipality will delineate areas of land into different zones and assign distinct land uses for each zone. Zoning ordinances generally divide land use into several categories including residential, commercial, industrial, or agricultural usage. Within these categories, some municipalities make further distinctions, such as segregating industrial districts into heavy industrial and light industrial districts, or dividing residential districts into single-family residence, low-density multiple family residence, medium-density multiple-family residence and high-density multiple-family residence districts.

Through zoning, the municipality seeks to distance incompatible uses of land. For instance, an owner of real estate in a residential zone would very likely be forbidden from building a factory upon the land because the noise and pollution from the factory would interfere with the residential use of the surrounding parcels of land.

Zoning ordinances may also restrict an owner from constructing too large of a building on a piece of land. Such ordinances limit a building's size (in terms of square feet), height and shape, as well as the distance a building is set back from the street and surrounding property lines. However, an applicant seeking to construct a building that does not comply with existing use restrictions or structural requirements may still proceed if the municipality grants the applicant a variance to depart from the zoning ordinance.

Can zoning be illegal?

Although the U.S. Supreme Court affirmed the legality of zoning in Euclid v. Amber Realty, 272 U.S. 365 (1926), a zoning ordinance may still be illegal if it contains provisions that do not comply with the U.S. Constitution.

For example, a zoning ordinance may be illegal if it amounts to an unconstitutional taking of property in violation of the Fifth Amendment of the United States Constitution. This may occur if a state or municipality enacts a law that prohibits certain types of development from taking place or limits the scope of permissible development on a piece of land. In such regulatory takings cases, the court will consider whether the law overly burdened the landowner's use and enjoyment of the property without providing just compensation for the diminished value of the land. To succeed, the landowner must prove that the law basically rendered the land valueless.

A court may also find zoning laws to be unconstitutional on due process grounds. A zoning law may be unconstitutional on substantive due process grounds if the law does not advance a legitimate public purpose. A law may also be unconstitutional on procedural due process grounds if the state or municipality did not follow established procedures for enacting a zoning law.