Chapter 18 Zoning Introduction Zoning describes local laws that control land use Zoning determines use which affects value and marketability We ll look at What is zoning What are the types of zoning What are some of the procedures How is zoning Constitutional Slide 2 Ch 18 Slide 2 Zoning regulates land use Zoning is law ordinance adopted by local gov t Per the state s Police Powers more later State enabling statutes give local gov t right to pass zoning laws Zoning law classifies properties by type of use Restricts a property s use to its type and includes other restrictions e g height setback density etc Controlling adjacent and nearby uses leads to orderly development certainty and minimizes negative impacts spillover effects from incompatible uses Administered by city county e g zoning planning commission or board of adjustment Slide 3 Ch 18 Slide 3 Use classifications Type of use 4 broad categories Residential single family multi family etc Commercial office retail restaurant entertainment etc Industrial warehouse manufacturing etc Agricultural Zoning classifications e g R 1 single family the lower the number the more restrictive lower density or R L L low density Cumulative more restrictive uses permitted e g R 1 okay in R 3 or non cumulative only permitted uses Zoning code written ordinance w descriptions of classifications uses and other restrictions and incorporating the zoning map Zoning map shows the zoning designations type for the properties Slide 4 within the city county Ch 18 Slide 4 Special classifications changes PUD Planned Unit Development Custom negotiated zoning classification b t owner and city county Often mixes uses restrictions standards mixed use projects Interim or holding zoning classifications Enables rezoning without meeting requirements for change Still affords zoning control over property i e no development until permanent zoning approved final zoning TBD Changes in zoning classification require a showing of mistake in the original zoning or changed neighborhood circumstances public need Changing zoning not easy key aspect of zoning is to provide Slide 5 foreseeability certainty for surrounding properties Ch 18 Slide 5 Gardner v City of Tupelo Facts Due to financial hardship developer rezones from large lot low density to small lot higher density upzoning and a retirement community citizen sues TC affirms rezoning Upzoning hard downzoning much easier why Issue Was the rezoning lawful Holding No reversed Rationale No evidence to support changed character of surrounding properties speculative future change n a in fact evidence of no change while not necessary to decide neither was there evidence of public need result change arbitrary capricious Rule of law Rezoning requires 1 mistake or 2 changed neighborhood character plus public need must be sufficient evidence empirical maps charts for informed decision projected Slide 6 future changes needs N A must be existing changes need Ch 18 Slide 6 Zoning goes beyond type of use Intensity zoning restrictions beyond type of use Height Setback from parcel boundaries bldg envelope Density either in persons number of units or total area Min lot size dimensions residential lot width important Floor Area Ratio FAR 3 0 or 3 1 3x floor area to lot area Aesthetic zoning regulating appearance also being regulated via building development codes Generally requires public welfare beyond mere aesthetics Slide 7 to be enforceable e g safety historical preservation etc Ch 18 Slide 7 Crown Comm n on NY v NY DOT Facts State contracted with private company to place towers on state land in the city city claims location of commercial for profit antennae on towers towers which state owned used subject to zoning laws need and aesthetics TC found against the city Issue Are private antennae on state towers exempt from zoning laws Holding Yes affirmed Rationale Towers clearly exempt as state property serving legitimate interest private antennae also serve legitimate state interests and so enjoy the same immunity from local regulation the state does Rule of law States are not subject to local zoning laws provided the use serves a legitimate state interest that is as or more compelling than the local gov t interest balancing test private use of state property will likewise enjoy that immunity so long as the private use likewise serves the legitimate public interest private commercial purpose profit does not change the result Slide 8 Ch 18 Slide 8 Catsiff v McCarty Facts City has sign code limiting size and height tenant painted sign on building exceeding both size height limits city issues violation tenant appeals claiming code unconstitutional 1st Amendment free speech AC affirmed city s actions Issue Does the sign code violate the Constitution Holding No affirmed Rationale Signs for a commercial purpose city did not restrict the content but only the size height the size and height limitations were based on express findings by the city that such limitations addressed legitimate interests of aesthetics and traffic safety visible from R O W Rule of law Commercial speech in signage may be regulated so long as the regulation is 1 content neutral and 2 reasonable in it s addressing a legitimate regulatory interest including aesthetic and traffic safety Slide 9 Ch 18 Slide 9 Exclusionary zoning Zoning laws that exclude particular uses users from a city county are strictly scrutinized Can t use zoning to prevent undesirable uses users Exclusion of manufactured housing religious uses group homes and adult use sex related often contentious and strictly scrutinized Strict scrutiny careful review of public interest and scope of regulation so not to violate equal protection or free speech Reasonable limits on growth or types of uses are legal E g to allow for adequate public infrastructure and services Slide 10 Ch 18 Slide 10 Legitimate zoning not a taking 5th Bill of Rights and 14th Amendments states prohibit taking without due process and just compensation eminent domain condemnation Enabling statutes give local gov t right to zone Police Powers public health safety morals welfare per the Reservations Clause of the 10th Amendment Must serve some legitimate public interest purpose Legitimate zoning not a taking U S Sup Ct Village of Euclid Ohio v Ambler Realty Co 1926 Slide 11 Ch 18 Slide 11 Taking cont d Lucas v South Carolina Coastal Council US Sup Ct Facts new law prohibited any habitable structures owner sues for taking TC rules for owner