Zoning Regulations

A recent essay on the Uniform Bar Exam dealt heavily with zoning, and the topic has been showing up with more frequency on the MBE. This isn't too surprising because when the NCBE updated its Real Property content recently, a heavier focus on zoning was noted. As such, the following are all important points to note:

When the state enacts a zoning statute, the purpose is to control the use of land for the health, safety and welfare of its citizens. Importantly, this power is limited by the Due Process Clause, the Equal Protection Clause (look out for racial discrimination) as well as the Fifth Amendment's provision preventing taking private property for public use without providing just compensation to the property owner. It should be noted that if there is a valid restrictive covenant on the use of land, the fact that a zoning ordinance would allow that use will not generally prevent the covenant from being enforced.

A cumulative zoning ordinance creates a hierarchy of uses of land. Under such an ordinance, land that is zoned for a particular use may be used for the stated purpose or for any higher use. For example, if a single-family home is a higher use than an apartment building, then the land may be used for a single family home even if it is zoned for apartment buildings. But in such a case, use of an apartment building would not be allowable if zoned for single-family homes. Noncumulative zoning, in contrast, is simpler; land may be used only for the purpose for which it is zoned.

A nonconforming use is a use that exists at the time that a zoning ordinance is passed but also does not conform to the ordinance. The use itself is allowable, but any changes that take place after the ordinance is in effect must comply with the ordinance. One way to analyze whether a change to a nonconforming use is allowable is to ask whether the change is substantial or insubstantial; if substantial it is likely that the change will not be allowable. It's safe to assume for the exam that any doubts should be resolved against the change.

A special use permit relates to uses that are allowed in specific zoning districts provided they meet certain conditions set out in the ordinance. The conditions are generally intended to prevent adverse impacts on the neighboring areas. For example, special use permits might be granted to hospitals, funeral homes, etc.

A variance allows for uses that would otherwise be prohibited by a zoning ordinance. Since a variance violates a zoning ordinance, to obtain a variance, an applicant must ordinarily show hardship which might be shown by providing that without the variance the applicant will not be able to make reasonable use of the land.