Zoning and Land Use

Land use law is a relatively new area. With population growth in the 20th century and the trend toward urbanization, it became clear that an individual’s use of property could have a negative impact on the health, safety, and welfare of the whole community. As in many areas of law, the rights of the individual had to bend for the good of the community. Regulation of the use of real property (land and buildings) now occurs at all levels of government and comes from all three branches.

Sources of Zoning and Land Use Laws

At the federal level, environmental statutes establish standards that may be enforced by federal administrative agencies or by state agencies implementing federally approved state programs. State standards are sometimes more stringent than required by federal law, but they are never more lenient. For example, states may choose to establish and enforce their own programs consistent with the Clean Air Act (CAA) and the Clean Water Act (CWA). If they do not, those standards will be enforced by the U.S. Environmental Protection Agency (EPA), which also enforces the Resource Conservation and Recovery Act (RCRA), and the Comprehensive Environmental Response, Compensation and Liability Act  (CERCLA or Superfund). All of these laws are explained in greater detail on the EPA website, which also contains links to corresponding state laws. The National Historic Preservation Act (NHPA) establishes incentives to protect historic and cultural resources, while state and local historic preservation laws may actually restrict physical changes to property.

The executive branch (the president or governor) may direct governmental action or manage public land by proclamation or order. For example, President Obama designated several national monument properties for conservation. In 2014, the Governor of Pennsylvania issued an executive order to allow drilling for natural gas in state parks.

The Role of the Courts in Zoning and Land Use

Federal and state courts also play a role. In addition to deciding cases under statutes enacted by Congress, state legislatures, and local governments, the courts often address common law actions relating to land use, such as trespass, or the entry onto the land of another without permission, and nuisance, which is interfering with the owner’s use and enjoyment of land. While the trend in land use law is toward statutory standards and agency enforcement, common law actions remain essential to situations that are not a matter of public concern, such as a neighbor who repeatedly parks on his neighbor’s land or allows his dog to run loose and knock over garbage cans. Other private land use regulations that are enforced in courts include easements, which are the right to use part of the land of another owner, and restrictive covenants placed on deeds, such as requiring the owner to belong to a homeowners’ association.

The courts also play an important role in defining the constitutional limits of local zoning. A property owner may believe that limitations on land use may go “too far” and essentially “take” the property without compensation, or he or she may believe that in enacting the regulation or ruling on an individual request, the governmental body did not comply with the requirements of due process.

Zoning is the division of a municipality into districts, with different standards for uses, intensity of use, and structures in each. Many municipal zoning codes can be found online. Zoning is generally preceded by planning. Some states require that zoning be consistent with a comprehensive land use plan that was developed with public input, following specific procedures. A typical plan will create areas for different types of industrial, commercial, recreation or open space, and residential uses. The districts may list conditional or special uses that are permitted if certain conditions are met. For example, a place of religious worship might be permitted in a residential district if it provides adequate parking. The plan should take into account matters such as compatibility, such as when a house is next to a noisy nightclub, the availability of infrastructure like adequate fire and emergency services, and characteristics of the land itself.

Exceptions to Zoning: Nonconforming Uses and Variances

Decisions on individual properties, including those involving conditional uses, nonconforming uses, variances, and rezoning of specific parcels, are typically handled in administrative proceedings. “Nonconforming” uses that lawfully existed before zoning rules prohibited them are typically “grandfathered” and allowed to remain until they are abandoned, destroyed, or amortized for a reasonable number of years. If zoning presents a hardship, an owner can seek a variance. While a dimensional variance, such as allowing a driveway nine feet rather than 10 feet from the property line, may be relatively easy to obtain, a use variance, such as allowing a store in a residential area, is typically very difficult to obtain.

Zoning Conflicts

Since zoning involves competing interests, local governments are constantly exploring new techniques to resolve conflicts. For example, the owners of estate homes, each on a full acre, may love their view of a prairie field. The owner of that field may want to build 500 homes on 100 acres, including several small townhouses that will be affordable to low-income individuals. The estate owners object to this plan, while the developer claims that zoning for large lots is exclusionary by keeping low-income people out of the area and reduces the value of the property. The municipality might compromise by allowing a planned unit development (PUD), with the dwellings clustered together and surrounded by open parkland, and perhaps even a small commercial area at the entry.