Zoning (Update)

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ZONING (Update)

Zoning—the public allocation into use categories of privately held land and the subsequent regulation of land development—is by and large a legislative act undertaken by thousands of local governments. As a legislative exercise of the police power, zoning determinations have long been presumed to be constitutionally and statutorily valid by the courts. This acceptance has not prevented the leveling of strong criticism at the zoning process. The criticism occurs on two levels: first, there is the belief that expanded social welfare conceptions of the police power are uneasily reconciled with private property and the constitutional protection thereof, and second, even if a particular zoning measure is constitutional, its effects may be economically inefficient or socially exclusionary.

The constitutional concern over modern zoning practice is often raised in terms of the Fifth Amendment's prohibition against the taking of property for public use without the payment of just compensation. This constraint against the federal government has been judicially incorporated into the Fourteenth Amendment's due process limitations upon state power. Influenced by william blackstone and john locke, the founding generation understood the taking clause as protecting the liberty engendered by private property. The most significant—perhaps only—qualifications of this liberty was that property not be used to injure one's neighbor. The principal drafter of the Fifth Amendment, james madison, affirmed this conception by excluding from the idea of private property uses that harmed others by not "leav[ing] to everyone else the like advantage."

Had modern applications of zoning been similarly confined to the prevention of harms or nuisances, such public control would have triggered little controversy. It is scarcely surprising, though now often overlooked, that the initial case favoring zoning's general constitutionality, euclid v. ambler realty (1926), stressed a nuisanceprevention rationale for public land use control. The highly influential amicus curiae brief filed in favor of the ordinance for the National Conference of City Planning stated that "the Police Power endeavors to prevent evil by checking the tendency toward it and seeks to place a margin of safety between that which is permitted and that which is sure to lend to injury or loss." Fifty years later, however, conceptions of the police power had grown dramatically, and as a consequence, governmental control of land use had become far more intrusive. The opinion of the Supreme Court in penn central transportation co. v. new york city (1978) boldly asserted that valid exercises of the police power do not depend upon the "noxious' quality of the prohibited uses but rather on the ground that the restrictions were reasonably related to the implementation of a policy … expected to produce a widespread public benefit."

Recent Supreme Court decisions may curb somewhat this accelerated growth of the police power. Rejecting as constitutionally infirm prior state doctrines that had limited relief for overzealous zoning exercises to invalidation, the Court has now clearly held that the compensation clause of the Fifth Amendment is self-executing; moreover, the Court held in First English Evangelical Lutheran Church v. County of Los Angeles (1987) that just compensation is required for either temporary or permanent regulatory takings—that is, substantial deprivations of economic value by regulation. In actual fact, the Court seldom finds a taking based on a single factor of economic loss; generally, the Court also considers the investment expectations of the landowner and the relations between the zoning objective and both the regulatory means chosen to advance it and the landowner's contribution to the land use "problem" to be solved. One closely divided opinion of the Court, Nollan v. California Coastal Commission (1987), held that zoning regulations are to be judged by a higher level of judicial scrutiny than that applied in the review of other economic legislation.

Other cases such as loretto v. teleprompter, inc. (1982) make clear that any regulation accompanied by physical invasion or use by the public merits compensation. The total destruction of a "core" property right, such as the ability to transfer property interests at death, is also constitutionally improper, as the Court stated in Hodel v. Irving (1987). Overall, the Court's recent decisions in the zoning area have established a constitutional outer limit premised upon the distinction between regulatory burdens that can be fairly placed on an individual property owner and those that more properly should be borne by the community at large through a general tax system. This principle may mean that exotic uses of the zoning power—say, withholding permits until an office developer makes a substantial contribution to the community housing or cultural fund—will be increasingly suspect.

While the Supreme Court has recently addressed the more egregious abuses of zoning, there remains substantial dissatisfaction with zoning in practice. Zoning measures continue to be presumed valid in state and federal courts, notwithstanding the Supreme Court's suggestion of heightened scrutiny, with the frequent result that physically and locationally indistinguishable property may be arbitrarily classed in very different use categories. Because the resulting value differences are profound, zoning measures are under the constant pressure of amendment or variance without meaningful standards. Regrettably, in some communities the wide-ranging discretion exercised by zoning authorities has invited serious corruption.

Zoning is also heavily reliant upon "specification standards" to accomplish land use objectives indirectly. For example, a typical zoning ordinance employs height, minimum lot, and setback limits to encourage open space and reduce or disperse density. Meeting these limits produces a monotony of design and often is not the most efficient method for accomplishing the open space objective. The advance specification of use requirements also introduces a highly static impediment to change, not to mention the consequent administrative cost and delay. These costs are most often borne by the housing consumer, and recent studies suggest that the regulatory cost burden can be as high as twenty-five percent of the finished price of a home.

The costly administrative burdens of zoning are most strongly felt by the least-affluent. To the extent that the lower economic stratum of society in a given locality is predominantly composed of members of racial or ethnic minorities, this cost obviously worsens racial segregation in housing. Absent a racially discriminatory intent, this effect does not constitute a denial of federal equal protection, as the Court held in arlington heights v. metropolitan housing development corporation (1977). However, zoning practices that exclude low-income, multi-family structures and have a discriminatory impact may constitute a violation of the federal Fair Housing Act, as was the case in Huntington Branch, NAACP v. Town of Huntington (2nd Cir. 1988).

A variety of alternatives have been proposed to overcome these undesirable zoning effects. To supply greater procedural and distributional fairness, some jurisdictions have more closely tied zoning decisions to comprehensive land use planning and have recharacterized zoning as an administrative or quasi-judicial decision. Such reforms not only supply more specific standards but also supply greater judicial supervision of abuse. To enhance the efficiency of zoning, other communities are experimenting with performance zoning systems, which articulate overall community objectives but leave the actual accomplishment of land use goals to plans submitted by individual landowners. Finally, as a general matter, modern subdivisions with detailed private covenants restricting use are less affected by zoning than are land areas within older central cities. Arguably, private controls are more sensitive to market demand and less apt to be applied uniformly over an entire community, and are therefore less exclusionary.

Douglas W. Kmiec
(1992)