IRAC case Paper

Chapter 13: ZoningHouses under construction, Fairfax, VA, by Zachary Schrag, Aug. 24, 2015
Zoning is a perennial issue for local governments. For most homeowners, their home is their
largest asset, and they are exquisitely sensitive to any threats to its value—but threats can mean
either the behavior of their neighbors, or constraints on their own behavior, setting up a
seemingly irresolveable tension. (Economist William Fischel calls them “homevoters” in
recognition of the way that their property interests shape their political choices.) In addition,
local governments and would-be developers of new properties have interests of their own.
Developers too seek to maximize their own property values, including their ability to develop
future projects, which may lead them to sacrifice the theoretical maximum value of any given
parcel. Governments want to protect their authority and their revenues, goals which they try
to accomplish in a variety of ways.
Zoning is a way of answering the question: What—and where—do we want the places where
we live to be? Our goals in this chapter are to understand the justifications for and modern
varieties of zoning. As you read and review, consider how zoning compares to other types of
land use controls, including nuisance, private covenants, and the implied warranty of
habitability.
Many of our examples in this chapter will come from St. Louis, Missouri, and its surrounding
suburbs. We focus on St. Louis not because it is unique, but because property law
developments in and around St. Louis are broadly representative of the evolution of
metropolitan areas around the country over the past century. Missouri allows particularly easy
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formation of new cities from unincorporated land, and that has contributed to the
proliferation of local governments, so some of the issues are presented particularly starkly in
Missouri. Nonetheless, you should expect similar dynamics to operate throughout the United
States.
OpenStreetMap map of St. Louis, BY-SA
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a.
The Dominance of the Single-Family Home
Americans love their homes, and homeownership remains a cornerstone of the “American
dream.” Alexis de Tocqueville noted this several hundred years ago, and also commented that
Americans would build homes and sell them as soon as the roof was complete. A particular
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ideal of the home developed in the twentieth century: “A separate house surrounded by a yard
is the ideal kind of home.” MARY LOCKWOOD MATTHEWS, ELEMENTARY HOME
ECONOMICS (1931). As a Wilmington, Delaware real estate ad from 1905 instructed, “Get
your children into the country. The cities murder children. The hot pavements, the dust, the
noise are fatal in many cases, and harmful always. The history of successful men is nearly
always the history of country boys.”
Results from the 2013 American Household Survey (AHS) show that 64% of all occupied
housing, and 62% of recently built units, are detached single-family homes. Even in central
cities, 79% of owner-occupied units are detached single-family houses. The average owneroccupied dwelling takes up nearly a third of an acre, as does the average recently built dwelling;
bus service usually requires at least seven dwellings per acre to be viable. 1
Homeownership has definite benefits. Homeowners are more likely to support school
funding; even childless homeowners want their chief asset to be valuable because of its
proximity to good schools. Homeowners participate more in local politics and community
life than renters do, and their children seem to benefit as well. On the other hand,
homeownership can be an anchor—when the structure of employment changes radically, and
the best jobs are available in other regions, homeownership, and the resulting loss on a major
asset, can deter people from moving, depressing economic growth and individual income.
b.
Defining the Family
Any zoning scheme centered on the single-family home requires some definition of “family.”
In Village of Belle Terre v. Boraas, 416 U.S. 1 (1974), a zoning ordinance’s definition of “family”
was invoked to prevent groups of unrelated college students from living together. That
definition was restricted to “‘(o)ne or more persons related by blood, adoption, or marriage,
living and cooking together as a single housekeeping unit… [or] not exceeding two (2)
[persons] living and cooking together as a single housekeeping unit through not related by
blood, adoption, or marriage.” A group of cohabiting college students sued to challenge the
ordinance, and the Supreme Court cited Euclid and similar cases in support of its holding that
the legislature can decide what kinds of uses are detrimental to the peaceful and attractive
character of the area, subject only to constitutional law’s “rational basis” standard of review:
The regimes of boarding houses, fraternity houses, and the like present urban
problems. More people occupy a given space; more cars rather continuously pass by;
1
Only 55% of housing units have sidewalks, and the percentage is lower for over-65 homeowners.
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more cars are parked; noise travels with crowds…. The police power is not confined
to elimination of filth, stench, and unhealthy places. It is ample to lay out zones where
family values, youth values, and the blessings of quiet seclusion and clean air make the
area a sanctuary for people.
Juan Monroy, Belle Terre, Sept. 7, 2014, CC-BY (despite the gates at the entrance to the town, this is not a private gated community,
at least not in formal legal terms)
Justice Marshall’s vigorous dissent in Belle Terre would have distinguished between “uses of
land … , for example, the number and kind of dwellings to be constructed in a certain
neighborhood or the number of persons who can reside in those dwellings,” which zoning
authorities could validly regulate, and “who those persons are, what they believe, or how they
choose to live, whether they are Negro or white, Catholic or Jew, Republican or Democrat,
married or unmarried,” which he would have found they could not. Justice Marshall invoked
both the First Amendment freedom of association and the constitutional right to privacy—
fundamental rights the regulation of which must survive constitutional law’s “strict scrutiny”
standard:
The choice of household companions — of whether a person’s “intellectual and
emotional needs” are best met by living with family, friends, professional associates, or
others — involves deeply personal considerations as to the kind and quality of intimate
relationships within the home. That decision surely falls within the ambit of the right
to privacy protected by the Constitution…. Because I believe that this zoning
ordinance creates a classification which impinges upon fundamental personal rights, it
can withstand constitutional scrutiny only upon a clear showing that the burden
imposed is necessary to protect a compelling and substantial governmental interest….
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In a subsequent case, Moore v. City of East Cleveland, 431 U.S. 494 (1977), Justice Marshall joined
the plurality opinion of the Court (written by Justice Powell), which applied strict scrutiny to
strike down East Cleveland’s more limited definition of “family,” 2 over several dissents. Inez
Moore lived with her son, Dale Moore, Sr., and her two grandsons, Dale, Jr., and John Moore,
Jr. The two boys were first cousins, rather than brothers; John came to live with his
grandmother and the elder and younger Dale Moores after his mother’s death. This caused
the household to violate East Cleveland’s family ordinance, resulting in criminal charges
against Mrs. Moore. The Court distinguished Belle Terre on grounds that the ordinance in that
case “affected only unrelated individuals,” whereas East Cleveland “has chosen to regulate the
occupancy of its housing by slicing deeply into the family itself.” The City defended its goals
with the same crowding and traffic justifications as Belle Terre, and additionally argued that
the ordinance limited the burden on East Cleveland’s schools. The Court found that the
ordiance’s exclusion of extended families served these legitimate goals “marginally, at best.” It
further noted that there was a long tradition of “uncles, aunts, cousins, and especially
grandparents sharing a household along with parents and children…. Especially in times of
adversity, such as the death of a spouse or economic need, the broader family has tended to
come together for mutual sustenance and to maintain or rebuild a secure home life. This is
apparently what happened here.”
Justices Brennan and Marshall, in concurrence, specifically pointed out that the “nuclear
family” was really the pattern of “white suburbia,” which could not impose its preference on
others, and noted traditions among immigrants and African-Americans of living together in
multigenerational arrangements as a matter of survival. The concurrence touted
multigenerational families as stronger and more beneficial for children than isolated nuclear
families. Justices Stewart and Rehnquist, in a dissent that defended Euclid’s and Belle Terre’s
rational basis standard of review, argued that traditions of extended family cohabitation in
such communities did not imply that “the residents of East Cleveland are constitutionally
2
The East Cleveland ordinance stated:
‘Family’ means a number of individuals related to the nominal head of the household or to the spouse of the nominal
head of the household living as a single housekeeping unit in a single dwelling unit, but limited to the following:
(a) Husband or wife of the nominal head of the household.
(b) Unmarried children of the nominal head of the household or of the spouse of the nominal head of the household,
provided, however, that such unmarried children have no children residing with them.
(c) Father or mother of the nominal head of the household or of the spouse of the nominal head of the household.
(d) Notwithstanding the provisions of subsection (b) hereof, a family may include not more than one dependent
married or unmarried child of the nominal head of the household or of the spouse of the nominal head of the
household and the spouse and dependent children of such dependent child….
(e) A family may consist of one individual.
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prevented from following what Mr. Justice BRENNAN calls the ‘pattern’ of ‘white suburbia,’
even though that choice may reflect ‘cultural myopia.’” But ultimately, the plurality wrote, “the
Constitution prevents East Cleveland from standardizing its children — and its adults — by
forcing all to live in certain narrowly defined family patterns.”
Consider the Moore plurality’s argument that Belle Terre could be distinguished on grounds that
“[t]he ordinance there affected only unrelated individuals.” What does this mean for unmarried
couples with children from prior relationships? In City of Ladue v. Horn, 720 S.W.2d 745 (Mo.
Ct. App. 1986), city authorities sued one such couple with three teenaged children from prior
relationships, seeking to enjoin them from cohabiting in a zoned single-family neighborhood.
The applicable ordinance’s definition of “family” specifically excluded groups of more than
two people not related by blood, marriage, or adoption. The court cited Belle Terre and Moore
together for the proposition that constitutional limits on zoning authorities’ definition of the
family rest on protection of relationships of blood, marriage, or adoption, and affirmed the
order enjoining them from living together in their home. The court opined that “maintenance
of a traditional family environment constitutes a reasonable basis for excluding uses that may
impair the stability of that environment and erode the values associated with traditional family
life.”
Do you think Ladue v. Horn reached the right conclusion? Consider Paul Boudreaux, The
Housing Bias: Rethinking Land Use Laws for a Diverse New America (2011):
[Restrictive single family] regulations provide a fascinating perspective into the unique
powers that America gives to laws governing ‘land use.’ Government cannot, of course,
tell you what kind of car to drive, what to cook for dinner, whether to watch reality
TV, whether to fill the living room with ceramic gnomes or tchotchkes, or whether to
pay for your kid’s college education. All these things are considered, and rightly so,
within the realm of human privacy and basic human freedom. But under the label of
land use law, governments are able to tell you who to consider your family and who
can live in your house. . . . Why can government be so intrusive? Because the neighbors
might not like how you live and because they have pushed the local government,
through civic local democracy, into passing a law regulating your household. It’s an
accepted exercise of the police power.
Today, jurisdictions vary considerably in their definition of “family” for purposes of
constructing that fortress of Euclidian zoning: the single-family home. Some jurisdictions,
such as New York, are particularly protective of individual choice of living arrangements. See,
e.g., Group House of Port Washington v. Board of Zoning and Appeals of the Town of North
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Hempstead, 380 N.E.2d 207 (N.Y. 1978) (a house consisting of two surrogate parents and
seven emotionally disturbed children was “… the functional and factual equivalent of a natural
family, and to exclude it from a residential area would be to serve no valid purpose”); McMinn
v. Town of Oyster Bay, 488 N.E.2d 1240 (N.Y. 1985) (town could not exclude from its
definition of family two unrelated people under 62, while allowing two related people 62 or
over); Baer v. Town of Brookhaven, 537 N.E.2d 619 (N.Y. 1989) (town could not exclude
five unrelated elderly women residing together under a definition of family providing that not
more than 4 unrelated persons living and cooking together as a single housekeeping unit could
constitute a family; state constitution precluded the town from limiting the size of a
functionally equivalent family of unrelated persons but not the size of a traditional family); cf.
Braschi v Stahl Associates, 543 N.E.2d 49 (N.Y. 1989) (two gay men living together in a
spousal-like arrangement could constitute a “family” within the context of the non-eviction
provisions of the New York City Rent and Eviction regulations). Other jurisdictions continue
to apply definitions of “family” as restrictive as that in Belle Terre or Ladue v. Horn—even
tightening those restrictions in some cases. See, e.g., Stephanie McCrummen, Manassas Changes
Definition of Family, WASH. POST A1 (Dec. 28, 2005) (newly enacted Manassas, VA zoning law
prevented couple from living with woman’s nephew; opponents attributed enactment to
discrimination against immigrants); see generally Rigel C. Oliveri, Single Family Zoning, Intimate
Association, and the Right To Choose Household Companions, 67 FLA. L. REV. 1401 (2016); Adam
Lubow, “… Not Related by Blood, Marriage, or Adoption”: A History of the Definition of “Family” in
Zoning Law, 16 J. AFFORD. HOUS. & COMM. DEV. LAW 144 (2007). The litigated cases tend to
be older, and even in the 1990s enforcement often drew incredulous media coverage, but there
are a few recent cases upholding restrictive definitions of family. See, e.g., City of Baton
Rouge/Parish of East Baton Rouge v. Myers, 145 So. 3d 320 (La. 2014) (upholding singlefamily ordinance that allowed (1) an unlimited number of related people or (2) no more than
four unrelated people in a single housekeeping unit, if the owner occupied the premises); State
v. Champoux, 566 N.W.2d 763 (Neb. 1997) (upholding family composition ordinance); City
of Brookings v. Winker, 554 N.W.2d 827 (S.D. 1996) (same).
c.
Segregation of uses
The key principle behind Euclidean zoning is segregation of uses, in order to protect the singlefamily home. One clear cost is sprawl. Living away from density has other consequences:
Wages are about thirty-five percent higher in cities, and research shows that this is because
urban residents tend to have greater wage growth than residents in rural areas, suggesting that
growth in human capacity is enhanced by density and interacting with closely situated others.
Density allows for greater specialization and more productive interactions with a greater
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variety of people. Another consequence of use segregation is that undesirable uses tend to get
concentrated in ghettoes or red-light districts, or left to inner cities.
However, even opponents of Euclidean zoning might consider some segregation of uses
desirable. In 2013, a Texas fertilizer plant explosion leveled houses and destroyed the middle
school across the street. A former city council member said that he couldn’t recall the town
discussing whether it was a good idea to build houses and the school so close to the plant,
which has been there since 1962. “The land was available out there that way … There never
was any thought about it. Maybe that was wrong.” Theodoric Meyer, Could regulators have
prevented the Texas fertilizer plant explosion?, SALON (Apr. 28, 2013).
d.
Churches
It might fairly be said that many homevoters’ concern for their property values amounts to
religious fervor. Numerous zoning disputes have involved the location of churches, to which
neighbors often object on grounds of weekend congestion—or, in the case of minority
religions, for other reasons. Congregation Temple Israel v. City of Creve Coeur, 320 S.W.2d 451 (Mo.
1959), involved a religious organization (a Jewish synagogue) that wished to construct a new
building for religious purposes, including services and religious education. Two weeks after
Temple Israel bought the land, residents petitioned to change the zoning. Before Temple
Israel began construction, the City changed the zoning to exclude churches and schools. It
also established a complex and burdensome procedure to seek an exception allowing church
or school use, and made the exception discretionary rather than mandatory. The Missouri
Supreme Court ruled that municipalities had no authority to regulate the placement of
churches or schools. Under the state’s Zoning Enabling Act, Section 89.020 allowed them to
regulate “the location and use of buildings, structures and land for trade, industry, residence
and other purposes.” Given the constitutional interest in freedom of religion, and the history
of locating churches in residential areas, the court interpreted “other purposes” to exclude
control over the location and use of buildings for churches and schools, though municipalities
could regulate the buildings for health and safety purposes.
The land use provisions of the Religious Land Use and Institutionalized Persons Act of 2000
(RLUIPA), 42 U.S.C. §§ 2000cc, et seq., now protect individuals, houses of worship, and other
religious institutions from discrimination in zoning and landmarking laws. The Department
of Justice has explained:
Religious assemblies, especially, new, small, or unfamiliar ones, may be illegally
discriminated against on the face of zoning codes and also in the highly individualized
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and discretionary processes of land use regulation. Zoning codes and landmarking laws
may illegally exclude religious assemblies in places where they permit theaters, meeting
halls, and other places where large groups of people assemble for secular purposes. Or
the zoning codes or landmarking laws may permit religious assemblies only with
individualized permission from the zoning board or landmarking commission, and
zoning boards or landmarking commission may use that authority in illegally
discriminatory ways.
To address these concerns, RLUIPA prohibits zoning and landmarking laws that
substantially burden the religious exercise of churches or other religious assemblies or
institutions absent the least restrictive means of furthering a compelling governmental
interest. This prohibition applies in any situation where: (i) the state or local
government entity imposing the substantial burden receives federal funding; (ii) the
substantial burden affects, or removal of the substantial burden would affect, interstate
commerce; or (iii) the substantial burden arises from the state or local government’s
formal or informal procedures for making individualized assessments of a property’s
uses.
U.S. Dep’t of Justice, Religious Land Use and Institutionalized Persons Act, Aug. 6, 2015.
On the other hand, there are limits on the extent to which zoning ordinances can be put at
the service of religious institutions, in light of the First Amendment’s Establishment Clause.
See Larkin v. Grendel’s Den, 459 U.S. 116 (1982) (Massachusetts statute prohibiting sale of
alcohol within 500 feet of a church “if the governing body of such church or school files
written objection thereto” was an unconstitutional establishment of religion under the First
Amendment).
e.
Other First Amendment Concerns
To what extent may zoning ordinances limit the exercise of First Amendment rights to
freedom of expression? The City of Ladue, a wealthy St. Louis suburb we will learn more
about shortly, has a history of testing this question.
To take one example, may a zoning ordinance permissibly prohibit the posting of “lawn signs”
of the type that are typical in political campaigns? In City of Ladue v. Gilleo, 512 U.S. 43 (1994)
the Court struck as unconstitutional Ladue’s zoning ordinance banning from residential
districts all signs except “residence identification” signs, “for sale” signs, and signs warning of
safety hazards. But the Court left open the possibility that some regulations short of an
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outright ban—such as “time, place, and manner” restrictions typical of judicially permitted
government regulation of expression—might pass First Amendment scrutiny. What types of
signage regulations should be available to zoning authorities? Could a zoning ordinance, for
example, place heavier restrictions on temporary leaflets advertising upcoming events or
meetings than it does on more durable lawn signs demonstrating support for a political
candidate? See Reed v. Town of Gilbert, 576 U.S. — (2015) (striking a complex hierarchy of
sign regulations as drawing impermissible and unjustified content-based distinctions).
To take another example with implications for freedom of expression, is “aesthetic zoning”—
the use of zoning ordinances to require all homes within a community to conform to certain
styles of architecture, for example—permissible? In State ex rel. Stoyanoff v. Berkeley, 458 S.W.2d
305 (Mo. 1970), Ladue refused a building permit to a family that proposed to build the
following home in a neighborhood of stately colonial and Tudor style homes:
Artist’s rendering of proposed house
The Stoyanoffs challenged the zoning ordinance—which gave an appointed “Architectural
Board” the authority to refuse new home designs unless they are “in general conformity with
the style and design of surrounding structures”—on grounds that it was vague and arbitrary.
The court disagreed, holding that such aesthetic criteria are a permissible exercise of the police
power to preserve the “character of the district, its suitability for particular uses, and the
conservation of the values of buildings therein.” Are you persuaded? Should the Stoyanoffs
have challenged the ordinance on First Amendment grounds instead? Would the result have
been any different? Should it have been?
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What about so-called “erogenous zoning”—the practice of prohibiting certain sex-themed
businesses such as strip clubs, adult video parlors, and the like, in or near residential districts,
schools, and churches? If a zoning ordinance has the effect of herding all such businesses into
undesirable, remote, dangerous areas, is there a First Amendment problem? City of Renton v.
Playtime Theatres, Inc., 475 U.S. 41 (1986) (such a restriction upheld as a reasonable “time
place and manner” restriction); accord Young v. American Mini Theatres, Inc., 427 U.S. 50
(1976). What if an ordinance has the effect of making it literally impossible to operate such a
business within the jurisdiction covered by the ordinance? See, e.g., City of Erie v. Pap’s A.M.,
529 U.S. 277 (2000) (upholding a zoning ordinance that requires nude dancers within city
limits to wear “pasties and G-strings” because the effect on the expression of nude dancers
was de minimis and the regulation was a justifiable response to the “secondary effects” of allnude dancing); but see Schad v. Borough of Mount Ephraim, 452 U.S. 61 (1981) (reversing
convictions of adult bookstore and peep show operators under a zoning ordinance that
prohibited all live entertainment within the jurisdiction, and noting that the Court in Young v.
American Mini Theatres, Inc. “did not imply that a municipality could ban all adult theaters -much less all live entertainment or all nude dancing — from its commercial districts citywide.”).
f.
Longstanding critiques of suburbia.
Since their inception, suburbs have been criticized for isolating and insulating the families who
lived there. Social critic Louis Mumford wrote: “[T]he suburb served as an asylum for the
preservation of illusion. Here domesticity could flourish, forgetful of the exploitation on
which so much of it was based. Here individuality could prosper, oblivious of the pervasive
regimentation beyond. This was not merely a child-centered environment, it was based on a
childish view of the world, in which reality was sacrificed to the pleasure principle.” THE CITY
IN HISTORY: ITS ORIGINS, ITS TRANSFORMATIONS, AND ITS PROSPECTS 464 (1961).
Zoning raises distributional as well as efficiency concerns. Proponents of use zoning defend
its contribution to “home values,” while critics of growth restrictions talk about “housing
prices”; the former takes the perspective of existing owners while the latter suggests more
concern for people who are priced out of ownership. Indeed, use zoning does seem to raise
the price of single-family homes, though it’s less clear that it raises overall property values.
Studies find that, in most parts of the country, home prices are roughly at or near the costs of
construction. But, where zoning limits construction, prices can increase substantially. Thus,
in heavily regulated urban areas like New York City and many parts of California, home prices
shot up in the past few decades.
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A recent study found that land use restrictions added $200,000 to the price of houses in Seattle,
Washington; Seattle was in the top 3%, nationally, in approval delays for new projects. The
executive officer of the Master Builders Association of King & Snohomish Counties estimated
that regulatory costs comprised up to 30 percent of the total cost of building a new house
(land costs included), including transportation, school and park impact fees, stormwater
management fees, critical-areas mitigation and monitoring, pavement requirements and
rockery permits. Neighborhood-based design review committees, which use citizen
volunteers, delay the process further, sometimes requiring three or four rounds of review.
Elizabeth Rhodes, UW study: Rules add $200,000 to Seattle house price, SEATTLE TIMES (Feb.
14, 2008).
3.
How Zoning Works (and Doesn’t)
Zoning’s proponents hoped that comprehensive planning would result in a zoning plan that
would last into the indefinite future. Reality quickly set in, and municipalities realized that they
would need ongoing modification of their zoning codes. New uses had to be included and
excluded; plans had to be revised to account for changes in population; and so on.
B.
Nonconforming Uses, Variances and Exceptions
At times, new zoning precludes uses that were previously allowed. The remaining allowed
uses may be inappropriate for a particular parcel of land within a zone. Conditions may have
changed, making previous zoning inappropriate, or developers may wish to build more than
current zoning allows. Zoning authorities may have determined that particular uses are
acceptable, but only under specified conditions requiring a more detailed permit process. All
these possibilities require some way of addressing unusual conditions and ongoing change.
This section reviews various techniques zoning authorities use in such circumstances.
1.
Nonconforming uses
When zoning first began, there were a number of existing uses that would be prohibited by
the new regimes. Zoning authorities expected these to die out naturally, but in fact, they often
persisted for decades, in part because they often had local monopolies—a nonconforming use
might be the only gas station in a residential neighborhood, for example. Many supporters of
zoning wanted to do more to get rid of such uses.
Moreover, because zoning often changes—usually in the direction of becoming more
restrictive—existing uses that were fine under the previous zoning regime can become newly
unlawful. This is especially true when an unanticipated use begins and the rest of the neighbors
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want to change the zoning in response. But what about the interests of the property owner
with the disfavored use, now known as a nonconforming use?
***
b.
Procedure
Most jurisdictions have a formal process setting out the deadlines and providing guidance to
applicants on what they need to show to get a variance. See, e.g., St. Louis Board of Zoning
Adjustment, Citizen’s Guide to the Board of Zoning Adjustment Variance Process (n.d.). By
contrast, the city of Ladue has no formal variance procedure at all. Instead, an applicant must
seek a permit, and after the permit is denied, the City of Ladue Building Department sends
the applicant a formal denial letter with Zoning Board of Adjustment instructions for an
appeal.
Zoning Hearing, Valdosta County, Georgia, by John S. Quarterman, Aug. 26, 2013, CC-BY 3
Matthew v. Smith
707 S.W.2d 411 (Mo. 1986)
WELLIVER, Judge.
This is an appeal from a circuit court judgment affirming the Board of Zoning Adjustment’s
decision to grant Jim and Susan Brandt a variance. The Brandts purchased a residential lot
See http://www.l-a-k-e.org/blog/2013/09/dollar-general-teramore-development-glpc-2013-08-26.html for a detailed
recap of a zoning hearing and many more pictures.
3
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containing two separate houses upon a tract of land zoned for a single-family use. The court
of appeals reversed the circuit court judgment, and the case was then certified to this Court
by a dissenting judge. We reverse and remand.
The Brandts own a tract of land comprising one and one-half plotted lots. When they
purchased the property in March of 1980, there already were two houses on the land, one
toward the front of Erie Street and one in the rear. Each of the buildings is occupied by one
residential family as tenants of the Brandts. The two houses apparently have been used as
separate residences for the past thirty years, with only intermittent vacancies. The property is
zoned for Single Family Residences. At the suggestion of a city official, the Brandts applied
for a variance which would allow them to rent both houses with a single family in each house.
After some delay, including two hearings by the Board of Zoning Adjustment of Kansas City,
the Board granted the application. Appellant, Jon Matthew, a neighboring landowner
challenged the grant of the variance and sought a petition for certiorari from the Board’s
action. The circuit court affirmed the Board’s order; on appeal, the court of appeals held that
the Board was without authority to grant the requested variance. A dissenting judge certified
the case to this Court….
Under most zoning acts, these boards have the authority to grant variances from the strict
letter of the zoning ordinance. The variance procedure “fulfil [s] a sort of ‘escape hatch’ or
‘safety valve’ function for individual landowners who would suffer special hardship from the
literal application of the … zoning ordinance.” It is often said that “[t]he variance provides an
administrative alternative for individual relief that can avoid the damage that can occur to a
zoning ordinance as a result of as applied taking litigation.” The general rule is that the
authority to grant a variance should be exercised sparingly and only under exceptional
circumstances.
Both the majority of courts and the commentators recognize two types of variances: an area
(nonuse) variance and a use variance.
The two types of variances with which cases are customarily concerned are “use” variances
and “nonuse variances.” The latter consist mostly of variances of bulk restrictions, of area,
height, density, setback, side line restrictions, and restrictions coverning miscellaneous
subjects, including the right to enlarge nonconforming uses or to alter nonconforming
structures.
As the name indicates, a use variance is one which permits a use other than one of those
prescribed by the zoning ordinance in the particular district; it permits a use which the
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ordinance prohibits. A nonuse variance authorizes deviations from restrictions which relate to
a permitted use, rather than limitations on the use itself, that is, restrictions on the bulk of
buildings, or relating to their height, size, and extent of lot coverage, or minimum habitable
area therein, or on the placement of buildings and structures on the lot with respect to required
yards. Variances made necessary by the physical characteristics of the lot itself are nonuse
variances of a kind commonly termed “area variances.”
Many zoning acts or ordinances expressly distinguish between the two types of variances.
When the distinction is not statutory, “the courts have always distinguished use from area
variances.” Some jurisdictions, whether by express statutory directive or by court
interpretation, do not permit the grant of a use variance.
[The Brandts] seek a variance to use the property in a manner not permitted under the
permissible uses established by the ordinance. The ordinance clearly permits only the use of
the property for a single family residence. The applicant is not seeking a variance from the area
and yard restrictions which are no doubt violated because of the existence of the second
residence. Such an area variance is not necessary because the applicant has a permissible
nonconforming structure under the ordinance.
… [T]he express language of § 89.090, RSMo 1978, … grants the Board the “power to vary
or modify the application of any of the regulations or provisions of such ordinance relating to
the use, construction or alteration of buildings or structures, or the use of land” (emphasis
added). We, therefore, hold that under the proper circumstances an applicant may obtain a
use variance.
Section 89.090, RSMo 1978 delegates to the Board of Adjustment the power to grant a
variance when the applicant establishes “practical difficulties or unnecessary hardship in the
way of carrying out the strict letter of such ordinance … so that the spirit of the ordinance shall
be observed, public safety and welfare secured and substantial justice done.” ….
Almost all jurisdictions embellished the general concepts of “unnecessary hardship” or
“practical difficulties” by further defining the conditions an applicant must satisfy before
obtaining a variance….
Unfortunately, any attempt to set forth a unified structure illustrating how all the courts have
treated these conditions would, according to Professor Williams, prove unsuccessful. Williams
observes that the law of variances is in “great confusion” and that aside from general themes
any further attempt at unifying the law indicates “either (a) [one] has not read the case law, or
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(b) [one] has simply not understood it. Here far more than elsewhere in American planning
law, muddle reigns supreme.” Yet, four general themes can be distilled from variance law and
indicate what an applicant for a variance must prove:
(1) relief is necessary because of the unique character of the property rather than for personal
considerations; and
(2) applying the strict letter of the ordinance would result in unnecessary hardship; and the
(3) imposition of such a hardship is not necessary for the preservation of the plan; and
(4) granting the variance will result in substantial justice to all.
Although all the requirements must be satisfied, it is generally held that “‘[u]nnecessary
hardship’ is the principal basis on which a variance is granted.”
Before further examining the contours of unnecessary hardship, jurisdictions such as Missouri
that follow the New York model rather than the Standard Act need to address the significance
of the statutory dual standard of “unnecessary hardship” or “practical difficulties.” Generally,
this dual standard has been treated in one of two ways. On the one hand, many courts view
the two terms as interchangeable. On the other hand, a number of jurisdictions follow the
approach of New York, the jurisdiction where the language originated, and hold that “practical
difficulties” is a slightly lesser standard than “unnecessary hardship” and only applies to the
granting of an area variance and not a use variance. The rationale for this approach is that an
area variance is a relaxation of one or more incidental limitations to a permitted use and does
not alter the character of the district as much as a use not permitted by the ordinance.
In light of our decision to permit the granting of a use variance, we are persuaded that the
New York rule reflects the sound approach for treating the distinction between area and use
variances. To obtain a use variance, an applicant must demonstrate, inter alia, unnecessary
hardship; and, to obtain an area variance, an applicant must establish, inter alia, the existence
of conditions slightly less rigorous than unnecessary hardship.
… It is generally said that Otto v. Steinhilber, 282 N.Y. 71, 24 N.E.2d 851, 853 (1939) contains
the classic definition of unnecessary hardship:
Before the Board may exercise its discretion and grant a variance upon the ground of
unnecessary hardship, the record must show that (1) the land in question cannot yield
a reasonable return if used only for a purpose allowed in that zone; (2) that the plight
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of the owner is due to unique circumstances and not to the general conditions in the
neighborhood which may reflect the unreasonableness of the zoning ordinance itself;
and (3) that the use to be authorized by the variance will not alter the essential character
of the locality.
Quite often the existence of unnecessary hardship depends upon whether the landowner can
establish that without the variance the property cannot yield a reasonable return. “Reasonable
return is not maximum return.” Rather, the landowner must demonstrate that he or she will
be deprived of all beneficial use of the property under any of the permitted uses:
A zoning regulation imposes unnecessary hardship if property to which it applies cannot yield
a reasonable return from any permitted use. Lack of a reasonable return may be shown by
proof that the owner has been deprived of all beneficial use of his land. All beneficial use is
said to have been lost where the land is not suitable for any use permitted by the zoning
ordinance.
Most courts agree that mere conclusory and lay opinion concerning the lack of any reasonable
return is not sufficient; there must be actual proof, often in the form of dollars and cents
evidence. In a well-reasoned opinion, Judge Meyer of the New York Court of Appeals stated:
Whether the existing zoning permits of a reasonable return requires proof from which
can be determined the rate of return earned by like property in the community and
proof in dollars and cents form of the owner’s investment in the property as well as
the return that the property will produce from the various uses permissible under the
existing classification.
N. Westchester Prof. Park v. Town of Bedford, 458 N.E.2d 809 (N.Y. 1983). Such
pronouncements and requirements of the vast majority of jurisdictions illustrate that, if the
law of variances is to have any viability, only in the exceptional case will a use variance be
justified.
…[T]he record is without sufficient evidence to establish unnecessary hardship. The only
evidence in the record is the conclusory opinion of Brandt that they would be deprived of a
reasonable return if not allowed to rent both houses. No evidence of land values was offered;
and, no dollars and cents proof was presented to demonstrate that they would be deprived of
all beneficial use of their property. Appellant, in fact, was not permitted to introduce such
evidence. The Board, therefore, was without authority to grant a use variance upon this record.
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The record, however, indicates that the Brandts may be entitled to a nonconforming use under
the ordinance.…
ROBERTSON, Judge, concurring in result. [Judge Robertson concurred on the ground that
the Brandts sought an area variance, not a use variance, but, under the zoning ordinance, they
still needed to demonstrate that the property couldn’t earn a reasonable return without the
variance.] [A separate concurrence is omitted.]
Notes and Questions
1. Were the Brandts seeking a use variance or an area variance?
2. Note that the prior nonconforming use alternative is both more stringent and more
relaxed than the variance: it requires the use to predate the zoning, but it also requires
no showing of hardship once that priority is established.
3. Judicial Review of Administrative Decisions. Although the standard of review is
supposed to be deferential, reversals of zoning board decisions are not uncommon.
See, e.g., Housing Authority of the City of St. Charles, Mo. v. Board of Adjustment of
the City of St. Charles, 941 S.W.2d 725 (Mo. Ct. App. 1997) (board abused discretion
in denying variances for lot size and setbacks where unusual size of parcel, which was
laid out before zoning was enacted, meant that no conforming building could be
erected, and where numerous other nearby properties had similar lot sizes and
setbacks); State ex rel. Klawuhn v. Board of Zoning Adjustment of the City of St.
Joseph, 952 S.W.2d 725 (Mo. Ct. App. 1997) (board wrongly granted three variances
to allow owners to build a storage building on a vacant lot and store various vehicles
and equipment in it; asserted hardship was personal to owners, “namely the large
quantity of vehicles and equipment they wished to store inside the proposed storage
building,” even though housing the vehicles inside a structure might be more
aesthetically appealing to neighbors than keeping them in open view; when asked
whether he could get by with a smaller storage shed, owner responded, “Not and put
what … I have to put in it”).
4. Mistakes. Is a good-faith mistake a self-inflicted hardship? The answer is usually yes.
See, e.g., Wehrle v. Cassor, 708 SW 2d 788 (Mo. Ct. App. 1986) (board erred in granting
variance where violation, and hardship involved in curing violation, resulted from
builders’ measurement errors).
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5. Purchase with knowledge of the problem. Suppose undeveloped land is purchased
by someone who knows or should know that the land can’t be developed in accordance
with current restrictions without a variance. Does purchase with knowledge of a
hardship count as a self-inflicted harm, disentitling the owner to a variance? See, e.g.,
Conley v. Town of Brookhaven Zoning Bd. of Appeals, 40 N.Y.2d 309 (N.Y. 1976)
(self-imposed hardship through purchase with notice of restrictions didn’t preclude the
zoning board from granting an area variance); Somol v. Board of Adjustment of the
Borough of Morris Plains, 649 A.2d 422 (N.J. Super. Ct. Law Div. 1994) (as long as a
prior owner didn’t create the hardship, purchase with knowledge of the restrictions is
no barrier to a variance); In re Gregor, 627 A.2d 308 (Pa. Commw. Ct. 1993) (“The
right to develop a nonconforming lot is not personal to the owner of property at the
time of enactment of the zoning ordinance but runs with the land, and a purchaser’s
knowledge of zoning restrictions alone is insufficient to preclude the grant of a variance
unless the purchase itself gives rise to the hardship.”). In what way could a prior owner
or a purchase create the hardship?
For use variances, by contrast to area variances, purchase with knowledge precludes a
claim for a variance. Why distinguish area variances from use variances in this context?
6. Can refusal to sell be a self-inflicted hardship? In Wolfner v. Board of Adjustment of
City of Warson Woods, 114 S.W.3d 298 (Mo. Ct. App. 2003), the owners bought one lot
in 1939 and built a house on it, before zoning began in 1941, thus creating a prior
nonconforming use. After 1941, they acquired an adjacent lot that was too small to be
built on under the 1941 zoning. Until 1995, the owners used the adjacent lot as a
sideyard. The surviving owner then sold the main lot, but not the adjacent lot. The
buyer of the main lot tried to buy the adjacent lot, but the owner rejected the offer,
along with other offers from surrounding property owners. She requested a variance
allowing a home to be built on the adjacent lot—it was only 7,500 square feet and 60
feet wide, less than the required 8,750 square feet and 70-foot width. The Board denied
her request, and that of subsequent purchasers, the Wolfners, whose purchase was
conditional on getting the variance. The Wolfners agreed to pay $80,000 for the lot on
the hope they could build on it; the Board found that this was not the kind of harm
that merited a variance.
The court upheld the denial, noting that it was still possible that neighboring owners
would be interested in buying the lot at its fair market value as a side yard. Is this fair?
Note that if the original owners had not owned an adjacent lot, they would almost
certainly have been entitled to the variance because their property was otherwise
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unbuildable. Compare, e.g., Detwiler v. Zoning Hearing Board, 596 A.2d 1156 (Pa.
Comm. Ct. 1991) (holding owners of oddly shaped parcel entitled to variance even
though they bought after the zoning began); Commons v. Westwood Zoning Board of
Adjustment, 410 A.2d 1138 (N.J. 1980) (similar result; although neighbors might be
entitled to denial of variance if they were willing to buy the undersized parcel at fair
market value, fair market value was to be calculated according to the value of the parcel
with the variance, not the much lower value of the parcel without it).
7. The law in action. The legal standards governing variances are fairly easy to state, but
doctrine doesn’t necessarily control outcomes; facts on the ground are much more
important. See Kathryn Moore, The Lexington-Fayette Urban County Board of Adjustment:
Fifty Years Later, 100 KY. L.J. 435 (2011-2012) (law professor who served on zoning
board commented on “the Board’s tendency to make decisions that seem fair and
practical rather than technically legally correct. Indeed, I am not sure that it is possible
or even reasonable to expect a lay body to prefer technically legally correct decisions
to practical and fair decisions, especially when the staff recommends the practical
decision over the legally correct decision.”). The conventional wisdom is that courts
reverse the grant of variances more often than their denial. Do you share the judicial
intuition that an issued variance is more likely to be problematic than a denied one?
The individual entity seeking a variance usually has a more focused interest in getting
it than the rest of the neighbors have in blocking it. Some people who seek variances
have even bribed zoning authorities.
c.
The Americans with Disabilities Act/Fair Housing Act
Both the Americans with Disabilities Act (ADA) and the Fair Housing Act (FHA) have
provisions that can affect local zoning and variance procedures. 4 People with disabilities,
defined as a substantial impairment to a major life activity such as walking or seeing, as well as
people who are perceived as having disabilities, are entitled to reasonable accommodations for
The ADA had even more profound effects on local building codes, which mandate particular building features. Along
with fire and electrical codes, building codes—which specify matters such as the minimum width of doors and the
maximum pitch of stairs—also profoundly shape the built environment, though we will not separately consider them here.
Under the ADA, new construction of places of public accommodation must be accessible, which includes considerations
such as entrance ramps and Braille labeling. See U.S. Architectural and Transportation Barriers Compliance Board (Access
Board), Americans with Disabilities Act (ADA) Accessibility Guidelines for Buildings and Facilities (2002).
4
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their disabilities, which means that otherwise applicable laws and regulations may have to be
waived.
U.S. Department of Justice, Civil Rights Division, Disability Rights Section, The
ADA and City Governments: Common Problems (n.d.)
Common Problem:
City governments may fail to consider reasonable modifications in local laws, ordinances, and
regulations that would avoid discrimination against individuals with disabilities.
Result:
Laws, ordinances, and regulations that appear to be neutral often adversely impact individuals
with disabilities. For example, where a municipal zoning ordinance requires a set-back of 12
feet from the curb in the central business district, installing a ramp to ensure access for people
who use wheelchairs may be impermissible without a variance from the city. People with
disabilities are therefore unable to gain access to businesses in the city.
City zoning policies were changed to permit this business to install a ramp at its entrance.
Requirement:
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City governments are required to make reasonable modifications to policies, practices, or
procedures to prevent discrimination on the basis of disability. Reasonable modifications can
include modifications to local laws, ordinances, and regulations that adversely impact people
with disabilities. For example, it may be a reasonable modification to grant a variance for
zoning requirements and setbacks.
Notes and Questions
1. Suppose a business will be in violation of the ADA if it doesn’t install a ramp, in
violation of a setback requirement. Is it entitled to a variance under this guidance? What
if the business should have known about the problem before constructing its building?
(In that case, the zoning authority is also implicated—it shouldn’t have approved any
buildings that would violate the ADA. See United States Dep’t of Justice, Civil Rts.
Div., ADA Standards for Accessible Design (2010).) What considerations might
nonetheless justify denying the variance? What if the board argues that ramps are ugly
and will decrease the value of the area? What if the board has safety concerns because
the ramp will extend far enough to interfere with bicyclists? The rule that ADA
requires reasonable modifications to zoning laws may mean that the standard
requirement of exceptional and undue hardship to the property owner isn’t applicable.
But another element of the test, detriment to the overall value of the area, is relevant
in determining whether a modification is reasonable.
2. Variances usually preclude consideration of personal characteristics that aren’t inherent
in the land. Where the entity seeking a variance is a business, that question isn’t
particularly important—even if the business changes hands, the next owner will need
a ramp to make the store accessible. But suppose zoning regulations require a particular
elevation for residential beachfront property, in order to address concerns about danger
from flooding. A property owner uses a wheelchair and wants a variance from the
elevation requirement because otherwise he won’t be able to get into his house. Does
the ADA require the variance?
3.
Special exceptions and zoning amendments
There are a variety of other refinements or complications in the zoning process that provide
flexibility. In theory, they should all have to conform to the general development plan or the
plan itself should have to be changed; practice is somewhat more messy. This section provides
only a brief introduction to the relevant concepts. A class in land use law or local government
will provide substantially more detail.
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a.
Special exceptions/special uses/conditional uses
A special exception (varyingly known as a special use or conditional use in different states)
is a ban on particular types of uses, such as apartment buildings, unless certain criteria are met.
One might wonder how they differ from variances. The basic idea is that variances are
necessary though not desirable, designed to deal with unexpected situations in which land uses
that are otherwise banned should be allowed, usually for parcel-specific and therefore
unpredictable reasons. We know that there is, in general, a need for the ability to grant
variances, but we don’t know which variances we will need. So the standards for variances are
worded generally.
By contrast, special exceptions are authorized when the zoning body anticipates that particular
uses will be appropriate, but should be carefully scrutinized. When a special exception is
authorized by the zoning code, that reflects a determination that the use is generally
appropriate for the zone. As a result, the zoning board must not be left with only vague criteria
that do not constrain its discretion when assessing whether a particular application should be
granted. With variances, the risk of arbitrary decisions has to be borne to provide the necessary
flexibility. But when the zoning authority can anticipate the issues that will predictably arise
with a particular use—apartments, for example, are likely to raise questions about how many
parking spaces are needed—then there is no need to take the risk of arbitrary or biased
enforcement. “The issuing of a permit is a ministerial act, not a discretionary act, which may
not be refused if the requirements of the applicable ordinance have been met.” State ex rel.
Kugler v. City of Maryland Heights, 817 S.W.2d 931 (Mo. Ct. App. 1991); see also Curry Inv.
Co. v. Board of Zoning Adjustment of Kansas City, 399 S.W.3d 106 (Mo. Ct. App. 2013)
(finding that the zoning board unlawfully made approval of a special use permit conditional
on the removal of two nonconforming signs; signs were lawful as prior nonconforming uses,
and the board’s staff concluded that all the criteria for a special use permit were met);
Waeckerle v. Board of Zoning Adjustment, 525 S.W.2d 351 (Mo. Ct. App. 1975) (allowing the
zoning board to treat a conditional use application as requiring a variance “would amount to
permitting the Board to exercise legislative power,” conflicting with its administrative role;
zoning board cannot repeal authorization for uses given by legislature). Relatedly, no special
showing of hardship is required to grant a special use permit, unlike a variance. The inevitable
legal debate over when rules are preferable to standards, or vice versa, is actualized in zoning
by using both.
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When a state is concerned about equalizing the burden of particular uses, it may mandate that
a sub-state jurisdiction provide for them through special exceptions. Missouri law, for
example, requires municipalities with more than 500 persons to allow substance abuse
treatment facilities as a permitted, conditional special use. Municipalities may establish density
standards and require that exterior appearance conform to area standards. MO. REV. STAT. §
89.143.
b.
Floating zones
Floating zones are something like special exceptions, in that they contemplate that a
particular use or combination of uses will be appropriate for an area under certain
circumstances, but it’s not yet clear exactly where that use should be. Once a development
plan is proposed by a developer and accepted by the zoning authority, the floating zone
“lands.” See Treme v. St. Louis County, 609 S.W.2d 706 (Mo. Ct. App. 1980) (accepting
floating zones so long as the determination to rezone a particular piece of property in a floating
zone is not arbitrary, capricious or unreasonable). Floating zones are useful for extensively
planned developments that may need more flexibility in use than the current zoning allows.
The plan can also be overlaid onto an existing zoning district if there’s a proposal with no
need to “float”; either way, the rezoning usually only takes place once a plan is approved. See,
e.g., Heidrich v. City of Lee’s Summit, 916 S.W.2d 242 (Mo. Ct. App. 1995) (dealing with a
planned district); McCarty v. City of Kansas City, 671 S.W.2d 790 (Mo. Ct. App. 1984)
(approval of plan is a legislative act).
c.
Planned Unit Development (PUD).
A Planned Unit Development (PUD) is a self-contained development, often with a mixture
of housing types and densities, in which the subdivision and zoning controls are applied to the
project as a whole rather than to individual lots. Densities are thus calculated for the entire
development, which allows clustering of houses and common open spaces. See Turner v. City
of Independence, 186 S.W.3d 786 (Mo. Ct. App. W.D. 2006) (upholding high density
residential mixed use planned unit development rezoning ordinance enacted by City as lawful
and reasonable). Within a PUD, the number of uses expressly permitted is limited and the
number of conditional uses is expanded, allowing the zoning authority more control over the
development of the land. Developers may use a PUD to get more flexibility in terms of open
space, parking, and setback requirements, in return for giving zoning authorities more control
than they would normally have in matters of building appearance and landscaping. See, e.g.,
State ex rel. Helujon, Ltd. v. Jefferson County, 964 S.W.2d 531 (Mo. Ct. App. 1998) (accepting
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PUD as legitimate legislative rezoning technique). Ladue has now provided for a PUD in its
zoning ordinance:
This section is intended to enable the creation of a Planned Unit Development (P.U.D.)
District on properties with a minimum size of twelve (12) acres that abut a City border.
The purpose of the Planned Unit Development District overlay is to provide a means
of achieving greater flexibility in development of land in a manner not possible in the
underlying zoning district; to encourage development of downsized luxury housing; to
encourage a more environmentally sustainable development; to promote a more
desirable community environment; and to maintain maximum control over both the
structure and future operation of the development.
A Planned Unit Development District overlay is not a rezoning of the property; only
those uses permitted in the underlying zoning classification shall be allowed …. Lot
area, yard setbacks, lot frontage, lot width, and other requirements and regulations
contained in the underlying zoning districts may be altered or amended as set forth in
the authorized Planned Unit Development District. There shall be no increase in unit
density in residentially zoned districts….
Ladue, Missouri’s Zoning Ordinance, Ordinance 1175, as amended through Jan. 2015.
d.
Rezoning
Rezoning more generally is exactly what it sounds like. As long as it is part of a comprehensive
plan, it is usually acceptable, even if it changes the rules substantially (and doesn’t just exclude
specific businesses, the way the rezoning in prior nonconforming use cases often does).
Missouri Municipal League, Planning and Zoning Procedures for Missouri
Municipalities (Sept. 2004)
[Under Missouri law, t]he requirement for passage of the rezoning ordinance is a simple
majority. It takes a two-thirds vote, however, if the owners of thirty percent or more
of the land within 185 feet of the boundaries of the area of land (exclusive of streets
and alleys) that is being rezoned sign and acknowledge (before a notary public) a written
protest against the rezoning.
In some cities there are additional self-imposed limitations on rezoning amendments.
These limitations state that, if the planning commission recommends against the
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proposed amendment, then it will take a three-fourths vote of the council to overturn
that action.
Should we treat rezoning as legislative in nature, and thus entitled to very deferential judicial
review the way the initial adoption of a zoning plan is treated under Euclid, or rather as quasijudicial like a variance and subject to less deference? The courts are divided on this question.
e.
Contract zoning
Contract Zoning is an often derogatory term for a rezoning in which a developer promises
to provide certain benefits to the zoning jurisdiction in return for zoning that allows the
developer to accomplish its goals. In theory, it should not be allowed, because it makes the
idea of general planning seem like a sick joke. In practice, it is hard to distinguish from
acceptable rezoning, and courts have increasingly tolerated it, perhaps reflecting the
commodification of all other values. Christopher Serkin, Local Property Law: Adjusting the Scale
of Property Protection, 107 COLUM. L. REV. 883 (2007). Nonetheless, most suburban
communities have not accepted contract zoning, as a political matter.
f.
Spot zoning
Spot Zoning is another kind of rezoning, in which a particular parcel is rezoned (rather than
being given a variance, for which the standard would be much higher). Because it can be used
as a variance workaround when the zoning board is on the owner’s side, some courts are
skeptical of spot zoning. The classic scenario involves a parcel that is zoned to “higher” use,
often single-family residential, but abuts a less restrictive zone. The developer wishes to use
the parcel for apartments, and argues that the neighborhood is already transitional in character
and that another apartment building will be consistent with the overall area. What responses
can you imagine the residential neighbors making?
Because of the potential for collusion between a zoning board and the owner of a benefitted
parcel, spot zoning is more often the legal conclusion of a court striking down a zoning change
than a characterization adopted by a zoning board to describe what it is doing. Courts tend to
be particularly suspicious when a change confers unique benefits on a specific parcel, making
it distinctly more valuable than its neighbors. It is not necessary that the new use cause
hardships to the neighbors; the problem is one of unjustified favoritism.
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g.
Upzoning and downzoning
You may expect that rezoning often favors developers trying to take advantage of desirable
locations. In fact, “downzoning”—making it harder to build at higher densities, which are the
most profitable for developers—may often be more successful than upzoning. Homevoters,
it seems, are likely to have the political power to protect new housing from coming in and
diluting the value of prized locations, or attracting the “wrong” sorts of residents. See Vicki
Been, Josiah Madar & Simon McDonnell, Urban Land-Use Regulation: Are Homevoters Overtaking
the Growth Machine?, 11 J. EMPIR. LEG. STUD. 227 (2014) (finding, in study of New York City,
that areas in proximity to high-quality infrastructure and services were more likely to have
zoning changes than other areas, but almost always in the direction of downzoning, so that
parcels in high-performing school districts were 43% more likely than the typical parcel to be
upzoned but 392% more likely to be downzoned; downzoning was also highly correlated with
race, with parcels in areas that were 80% white more than seven times more likely to be
downzoned than parcels in areas that were under 20% white.).
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