1. Constraints on Zoning
1.1. Municipal governments derive all power from state gov.
1.1.1. Authorizaed and enabled by state statute
1.1.2. Enabling acts grant power
1.2. Ordinances
1.2.1. Control nusiances
1.2.1.1. including slaughterhouses and stables
1.2.2. Comprehensive zoning laws
1.2.2.1. Regulate city land use
1.2.2.2. impose building restrictions
1.3. Standard State Zoning Enabling Act
1.3.1. Us Department of commerce enacted
1.3.1.1. Adopted as model for enabling acts in 35 states.
1.3.1.2. City or city council, township or village board, or other legislative body enacts zoning ordinance.
1.3.1.2.1. Creates a zoning board or board of zoning adjustment.
1.3.2. Ordinance divides the municipality into use districts (Residential, Commercial, Industrial)
1.3.2.1. Also adopts procedures to enact, enforce, amend
2. Enacting a Zoning Ordinance
2.1. Enacted in the same manner as other ordinances
2.1.1. Notice, hearing, and procedural requirements as meeting state law
3. Cumulative & Noncumulative Zoning
3.1. Cumulative (Euclidean Zoning)
3.1.1. Comprehensive (map divides area into districts)
3.1.2. Districts are limited to certain uses
3.1.2.1. Includes building heights
3.1.2.2. minimum lot sizes (area restrictions)
3.1.3. Different zones are ranked in a hierarchy
3.2. Non-cumulative
3.2.1. Recognizes the incompatibility of certain uses next to each other.
3.2.1.1. Only expressly authorized activities are allowed in each district.
4. Unique Systems to to Zoning Ordinances
4.1. Variances
4.1.1. A variance allows a landowner to build on land or use the land in a manner otherwise not permitted by the zoning ordinance.
4.1.1.1. Two Types
4.1.1.1.1. Use Variance
4.1.1.1.2. Area Variance
4.1.2. An administrative order waiving the application of the ordinance to allow all reasonable use of the property.
4.1.3. Granting a Variance
4.1.3.1. Boards grant variances when there is substantial evidence that
4.1.3.1.1. Variance isn't substantially incompatible with the comprehensive zoning play underlying the ordinance
4.1.3.1.2. Landowner is affected in a unique way by the provision in the ordinance
4.1.3.1.3. In applying the landowner suffers an unnecessary or undue hardship in use of the land or (in cases of area variances) the practical difficulty of use if the variance is denied
4.1.3.1.4. Granting the variance is not detrimental to public welfare.
4.1.3.2. Put simply, a variance is granted when substantially incompatible with the comprehensive zoning plan, the landowner will suffer a unique difficulty or hardship in land use, the undue or unnecessary hardship due to the ordinance is suffered by the land owner, and variance will not detriment public welfare.
4.2. Contract and Conditional Zoning
4.2.1. If sees to have re-zoned but want to place limits upon the rezoned land, demanding conditions upon approval
4.2.1.1. Contract Zoning (legally binding)
4.2.1.1.1. Municipal officials agree to rezone if landowner agrees to certain conditions.
4.2.1.1.2. If distinguished, courts invalidate as this is municipality bargaining away its power
4.2.1.2. Conditional Zoning (Not legally binding)
4.2.1.2.1. Not considered until landowner records specific affirmative or negatve covenants on the property OR
4.2.1.2.2. Officials incorporate the restrictions into an amendment
4.3. Spot Zoning
4.3.1. Exception to the general rule of the presumption of validity
4.3.2. Occurs when municipal legislature rezones a parcel/parcels into a more intensive or less restrictive us and property is rezoned to benefit of the owner not the public
4.3.2.1. Violating this requires the amendment shown to be reasonable
4.3.2.2. allows court to invalidate for spot zoning when one neighbor is benefited over others
4.3.2.3. Burden held by municipality to justify approval
4.4. Initiative and Referendum
4.4.1. Process by which citizens petition to have a proposed zoning amendment on the ballot which voters adopt or reject.
4.5. Special Exceptions
4.5.1. Use expressly provided for in the text of the ordinance that is not on the zoning map
4.5.1.1. The board must hear, consider and apply the conditions and requirements expressly set out in the ordinance's text.
4.5.1.1.1. If all conditions are met, cannot deny the special exception
4.5.1.1.2. Inherent impacts arise out of the location, and without them the board will grant the exception
4.5.1.2. Special exceptions are expressed in the ordinance, and often include banks, churches, child care facilities, funeral homes, schools etc.
4.5.2. Conditions of
4.5.2.1. Ordinance lists as special exception
4.5.2.2. Use will meet all ordinance conditions
4.5.2.3. Exception will not detract from the area's health, safety and public welfare beyond what is inherent in the normal conduct of the activity.
4.5.3. To do anything but accept when the conditions of the exception are met, or deny when not met is ultra vires (beyond scope of authority)
4.5.3.1. If disappointed, party may appeal administratively to court or De Novo
4.5.3.1.1. To do so, the ordinance must enumerate the standards controlling the board's decision, must have had procedural due process.
4.5.3.2. A court will only reverse the decision when ,
4.5.3.2.1. the ordinance is unconstitutional
4.5.3.2.2. the boards finding of facts is erroneous,
4.5.3.2.3. the court finds board didn't adhere to the provisions and procedures contained in ordinance or was operating on own procedures,
4.5.3.2.4. The decision was arbitrary, capricious or discriminatory or not supported by substantial evidence
4.5.4. Burden: Substantial Evidence
5. Amending Ordinances
5.1. Must follow procedure as outlined by state law
5.2. Entitled to the same presumption of validity and correctness as the original ordinance
5.2.1. Requires substantial evidence
5.3. Courts will only void an amendment if
5.3.1. Enactment is not pursuant to the jurisdictions enabling act or the local zoning authority's comprehensive plan of development
5.3.2. If arbitrary, capricious, or discriminatory
5.3.3. If violates a provision of a federal/state constitution/statute
5.4. No general test for validity. Typically furtherance of public welfare
6. Special Types of Zoning
6.1. Floating Zone
6.1.1. A zoning district within a zoning ordinance not located upon a map
6.2. Cluster Zone
6.2.1. Allows developers to overdevelop some land within a larger parcel, increasing density, but under-develop other land within the parcel
6.3. Planned Unit Development
6.3.1. an extension of cluster zoning. Allows the developer to coordinate single & multifamily uses with commercial uses.
7. Challenges to Zoning
7.1. Household Composition and Single Family residences
7.1.1. Excludes apartments, boarding house, nonresidential uses
7.1.2. Many jurisdictions constitute to be in terms of # of people and legal relationships
7.1.2.1. Family cannot be limited if blood related.
7.1.2.2. Family, if unrelated, is 2 or less living together.
7.2. Asthetic Regulations
7.2.1. Signs and billboards
7.2.1.1. ordinances to regulate must be a legitimate state interest.
7.2.1.2. Must rationally relate to state legitimate purpose or if infringes upon const. rights
7.2.1.2.1. If ordinance infringes upon free speech, it must be a compelling state interest, substantially advancing that compelling interest, and is narrowly tailored to infringing as little as possible on free speech
7.2.1.2.2. 5 factor are important to determining
7.2.2. Architectural Controls
7.2.2.1. Designed to promote uniformity in appearance or function
7.2.3. Historic Districts
7.2.3.1. Predate general architectural design ordinances
7.2.3.2. These are legitimate state interests.
7.2.3.3. Constitutional as the owner gets a benefit= to the burden
7.2.4. Landmarks
7.2.4.1. Legitimate state interest.
7.2.4.2. Designed to protect items that shaped history
7.2.4.3. ordinances protecting religious landmarks must be content neutral
7.3. Federally Favored Land Uses
7.3.1. Religious Uses
7.3.1.1. Municipalities prohibited from applying an ordinance that is a substantial burden
7.3.2. Wireless Communication Facilities
7.3.2.1. May regulate, so long as not interfering with the compliance to FCC standards.
7.3.2.1.1. Cannot prohibit, but create special exception for.
7.4. Adult Entertainment
7.4.1. Outright ban is unconstitutional
7.4.2. Content cannot be banned
7.4.3. Ordinances upheld only if unrelated to free speech
7.5. Exclusionary Zoning
7.5.1. Suspect Class
7.5.1.1. race, color, religion, national origin,
7.5.2. Ordinances based on suspect classes are unconstitutional if w/ discriminatory intent or purpose
7.5.3. Discriminatory impact or effect doesn't warrant constitutional relief.