Rights in real property - Zoning laws

Learning Outcomes

This article explains how zoning laws operate as part of rights in real property, including:

• Identifying the source and scope of municipal zoning power under state police power and enabling acts.
• Distinguishing cumulative from noncumulative zoning schemes and recognizing spot zoning issues.
• Classifying land uses as conforming or nonconforming and applying rules governing continuation, expansion, destruction, abandonment, and amortization of nonconforming uses.
• Evaluating when projects in progress acquire vested rights that survive later zoning changes.
• Applying the standards for granting use and area variances, including unique, land-based hardship, lack of self-created hardship, and consistency with public welfare.
• Determining when special or conditional use permits are required, what findings boards must make, and how arbitrary denials can be challenged.
• Analyzing zoning ordinances and decisions for substantive and procedural due process, equal protection, and regulatory takings problems on exam-style fact patterns.
• Reconciling zoning ordinances with private land use controls such as covenants, easements, and HOA rules, and predicting which restriction governs where they conflict.
• Strengthening MBE performance by practicing structured issue-spotting and articulating the standard of judicial review applied to zoning actions.

MBE Syllabus

For the MBE, you are required to understand zoning laws as they affect rights in real property, with a focus on the following syllabus points:

• The constitutional and statutory basis for zoning authority.
• Types of zoning ordinances (cumulative and noncumulative).
• Treatment of existing nonconforming uses and vested rights.
• Variances (use and area) and special/conditional use permits.
• The relationship between zoning and private land use controls (covenants, easements).
• Judicial review and constitutional challenges to zoning actions (due process, equal protection, takings).

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. Which of the following is most likely to be upheld as a valid exercise of zoning power?
   1. A city ordinance banning all religious buildings.
   2. A city ordinance restricting industrial uses to certain districts.
   3. A city ordinance prohibiting all rental housing.
   4. A city ordinance requiring all homes to be painted the same color.
2. A property owner’s factory predates a new zoning ordinance that prohibits industrial uses in the area. What is the owner’s status?
   1. The use is illegal and must stop immediately.
   2. The use is a nonconforming use and may generally continue.
   3. The use is permitted only if the owner obtains a variance.
   4. The use is permitted only if the owner pays a fee.
3. Which of the following is NOT a typical requirement for obtaining a variance?
   1. Unique hardship.
   2. No harm to public welfare.
   3. The applicant’s financial gain.
   4. Compliance with the ordinance is unreasonable.

Introduction

Zoning laws are local regulations that control how land may be used within a municipality. Zoning is a primary tool for local governments to manage land development, separate incompatible uses, and advance public welfare. Zoning ordinances must comply with constitutional requirements and are subject to judicial review.

Key Term: Police Power
The general authority of a state, under the Tenth Amendment, to regulate for the health, safety, morals, and general welfare of its citizens.

Key Term: Enabling Act
A state statute that authorizes cities and counties to adopt zoning ordinances and sets procedural and substantive limits on local zoning power.

The state’s zoning power comes from its police power. Cities and counties do not have independent zoning power; they may zone only if a state enabling act grants that authority. Local zoning ordinances that exceed or conflict with the enabling act are beyond the municipality’s power and can be invalidated as ultra vires.

Key Term: Zoning Ordinance
A local law, adopted under a state enabling act, that divides a municipality into districts and regulates the uses, density, and physical characteristics of land and buildings within those districts.

Zoning ordinances typically address:

• Permitted uses (e.g., residential, commercial, industrial).
• Intensity of use (e.g., density limits, floor-area ratios).
• Physical characteristics (e.g., height limits, setbacks, lot size).

They often form part of a broader comprehensive plan for land use within the municipality.

Key Term: Ultra Vires
A local government action that exceeds the authority granted by state law and is therefore void.

Zoning Authority and Types of Ordinances

Local governments derive zoning power from state enabling acts. Zoning ordinances typically divide land into districts (e.g., single-family residential, multi-family residential, commercial, industrial) and specify permitted uses and development standards for each district.

Zoning serves a core objective: to segregate incompatible land uses (for example, heavy industry from single-family residential neighborhoods) and thereby protect public health, safety, and welfare. To be valid, zoning regulations must be reasonable, not arbitrary, and must bear a substantial relation to legitimate police power objectives.

Courts generally apply a deferential, rational-basis-type review to zoning ordinances: if the regulation is at least “fairly debatable” as a means to advance public welfare, it will usually be upheld.

There are two classic structural approaches for zoning ordinances:

Key Term: Cumulative Zoning
A zoning scheme where higher-priority uses (e.g., single-family residential) are allowed in zones designated for lower-priority uses (e.g., commercial or industrial), but not vice versa.

Key Term: Noncumulative Zoning
A zoning scheme (also called mutually exclusive zoning) where only the uses specifically listed for a district are permitted; higher-priority uses are not allowed in zones designated for lower-priority uses.

In a cumulative scheme, a hierarchy of uses exists (single-family homes at the top, then multi-family, then commercial, then industrial). Land zoned for a lower use in the hierarchy may also be used for higher uses. For instance, a single-family home could be built in a commercial or industrial zone, but a factory could not be built in a residential zone.

In a noncumulative scheme, land may be used only for the category specified. If a zone is labeled “industrial,” only industrial uses are allowed; a house could not be built there unless a variance or rezoning is granted.

Key Term: Spot Zoning
A zoning amendment that singles out a small parcel for treatment inconsistent with the surrounding area and the comprehensive plan, primarily to benefit or burden a particular owner.

Spot zoning that arbitrarily favors or disfavors a specific parcel, without legitimate planning justification, can be attacked as a denial of equal protection or as an arbitrary exercise of the police power.

Nonconforming Uses

A nonconforming use is a lawful use that existed before a zoning change but does not comply with the new ordinance. The doctrine protects prior investments by preventing immediate termination of existing uses when zoning shifts.

Key Term: Nonconforming Use
A use of land or a structure that was lawful when established but does not comply with a subsequently enacted zoning ordinance.

Generally, nonconforming uses may continue despite the new zoning, but owners are usually prohibited from:

• Expanding the nonconforming use.
• Increasing its intensity in a substantial way.
• Changing it to a different nonconforming use.

Minor, insubstantial changes or ordinary repairs are typically allowed to keep the property usable. When in doubt, courts tend to resolve ambiguity against expansion of the nonconforming use and in favor of eventual conformity with the zoning scheme.

Vested Rights for Projects in Progress

Sometimes a landowner is in the middle of developing a project when the zoning changes.

Key Term: Vested Rights
The developer’s right to complete a project as originally planned when, before a zoning change, substantial work has been done in good faith under validly issued permits.

The typical test:

• The owner had valid building permits before the zoning change took effect.
• The owner made substantial expenditures or began substantial construction in good faith reliance on those permits.

If these elements are met, the project may proceed as a lawful nonconforming use even though it violates the new ordinance. Merely planning or applying for permits is not enough; the project must have moved beyond preliminary stages.

Worked Example 1.1

A city enacts a zoning ordinance that prohibits commercial uses in a residential district. A bakery has operated in the district for 20 years before the ordinance is adopted. Can the bakery continue to operate?

Answer:
Yes. The bakery is a lawful nonconforming use. It may generally continue despite the new residential zoning because the use predated the change. However, the owner typically cannot expand the bakery’s footprint, convert it into a larger restaurant, or rebuild it in a more intensive form if it is destroyed, unless the ordinance or a variance specifically allows such changes.

Termination of Nonconforming Uses

Municipalities may encourage the eventual elimination of nonconforming uses through various mechanisms:

• Amortization: Setting a reasonable time period after which the nonconforming use must cease.
• Prohibiting expansion, substantial alteration, or reconstruction.
• Declaring termination upon abandonment, destruction, or nuisance findings.

However, immediate termination of a lawful nonconforming use is usually not allowed unless the use constitutes a public nuisance or is abandoned by the owner.

Key Term: Amortization
A zoning technique that allows a nonconforming use to continue for a specified period so the owner can recoup investment, after which the use must stop.

Amortization periods must be reasonable in light of the owner’s investment and the nature of the use. Short, arbitrary deadlines can be challenged as violations of due process or as takings.

Abandonment typically requires both:

• Nonuse for a specified period; and
• Intent to abandon (which may be inferred from the circumstances).

If a nonconforming structure is substantially destroyed (often defined by ordinance as damage above a certain percentage of replacement cost), the owner may be required to rebuild in conformity with current zoning.

Worked Example 1.2

A homeowner seeks a variance to build a garage closer to the property line than allowed by the zoning ordinance, claiming the lot is unusually narrow. What must the homeowner show?

Answer:
The homeowner must demonstrate that the lot’s unique physical characteristics (its unusual narrowness) create a hardship, that strict application of the setback requirement would be unreasonable under these circumstances, and that granting the variance will not harm the public interest or unduly affect neighboring properties. Personal preferences or financial gain alone are insufficient.

Worked Example 1.3

A small corner store is a lawful nonconforming use in a residential district. The owner wants to convert it into a 24-hour supermarket with double the floor area. The ordinance is silent on expansions of nonconforming uses. Is the expansion permitted?

Answer:
Probably not. Even if the ordinance is silent, courts typically prohibit substantial expansion or intensification of a nonconforming use. Converting a small neighborhood shop into a much larger, 24-hour supermarket significantly increases traffic and impact and would likely be seen as an impermissible extension of the nonconforming use.

Worked Example 1.4

A city adopts an ordinance giving all adult bookstores (now nonconforming in their districts) five years to cease operation. One owner claims an immediate right to operate forever or to receive compensation. Is the amortization scheme likely valid?

Answer:
In many jurisdictions, yes. A reasonable amortization period that allows the owner to recoup investment is generally upheld as a valid means of eliminating nonconforming uses without paying compensation, so long as the period is not arbitrary and the ordinance serves legitimate public welfare concerns.

Variances and Special Use Permits

When strict application of a zoning ordinance would cause particular hardship, relief may be available through a variance or a special/conditional use permit.

Key Term: Variance
Permission granted by a zoning board to depart from the strict application of a zoning ordinance due to special circumstances affecting a specific property.

Key Term: Use Variance
A variance that allows a land use otherwise prohibited in the zoning district (e.g., a small commercial use in a residential-only zone).

Key Term: Area Variance
A variance that relaxes dimensional requirements (e.g., height, setback, or lot-size rules) while keeping the basic use classification intact.

Key Term: Special Use Permit
Authorization to use land for a particular use expressly allowed in the zoning district, but only if specific conditions are met (often called a conditional use permit).

A variance is exceptional relief. Boards generally cannot rewrite zoning policy through variances but can adjust individual applications where the ordinance works an unreasonable hardship on a particular parcel.

Requirements for a Variance

While formulations vary by jurisdiction, the typical requirements are:

• Unique hardship related to the land
  The parcel’s physical characteristics (e.g., shape, topography, size) must make strict compliance unduly burdensome. Hardship must be property-based, not merely personal to the owner (e.g., desire for a bigger house or more profit).

• No reasonable use under existing zoning (especially for use variances)
  For a use variance, many courts require that strict enforcement would deprive the property of any reasonable use as zoned.

• Practical difficulties (often for area variances)
  For area variances, some jurisdictions apply a slightly lower standard: whether strict compliance would create practical difficulties disproportionate to the public benefit.

• Not self-created
  The hardship must not result from the owner’s own actions, such as subdividing the parcel into non-compliant lots and then claiming hardship.

• No harm to public welfare or the zoning scheme
  The variance must be consistent with the spirit of the ordinance and must not substantially impair neighboring property values or the comprehensive plan.

Financial hardship alone, without some unique property-related factor, is almost never sufficient for a variance on the MBE.

Worked Example 1.5

A developer obtains all required permits to build a 10-story apartment building in a commercial zone. After she has poured the concrete base and completed two floors, the city rezones the area to single-family residential. Can the city force her to stop construction?

Answer:
Likely no. Because the developer had valid permits and made substantial progress and expenditure in good faith before the rezoning, she has vested rights. Her project becomes a lawful nonconforming use, and she may usually complete it despite the new zoning.

Worked Example 1.6

A property is zoned residential-only. The owner wants to operate a small neighborhood coffee shop on the ground floor of her house. She applies for a variance, arguing that the business would be convenient and profitable. There is nothing unusual about the lot. Should a variance be granted?

Answer:
Probably not. This is a request for a use variance. There is no unique hardship related to the land; the owner simply wants a more profitable or convenient use. Economic advantage or personal preference, without property-based hardship, is not enough. The proper remedy would be rezoning by the legislative body, not a variance.

Special and Conditional Use Permits

Some uses—such as churches, hospitals, schools, gas stations, and funeral homes—are often listed in the ordinance as allowed in a district only if the owner obtains a special or conditional use permit. These uses are considered compatible with the zone but may pose special concerns (traffic, noise, parking) that require case-by-case conditions.

A special use permit:

• Does not change the zoning classification.
• Is granted when the applicant shows that the proposed use meets criteria set out in the ordinance (e.g., compatibility with surrounding uses, adequate access, sufficient parking).
• Is subject to reasonable conditions tailored to mitigate impacts.

Denying a special use permit in an arbitrary or discriminatory way—especially when the use meets all listed criteria—can be attacked as a denial of due process or equal protection.

Worked Example 1.7

A zoning ordinance allows churches in residential districts “by special use permit” if adequate parking is provided. A church applies, demonstrates sufficient parking, and meets all listed criteria. The zoning board denies the permit solely because neighbors object to “too many church members driving through the area.” Is the denial valid?

Answer:
Likely not. The church has satisfied the ordinance’s stated conditions. Denial based solely on generalized neighborhood hostility is arbitrary and may violate due process and, given the religious context, potentially the First Amendment and equal protection as well.

Constitutional and Judicial Limits

Zoning ordinances must comply with constitutional protections, including due process, equal protection, and the prohibition on takings without just compensation.

Substantive Due Process

Zoning regulations interfere with landowners’ use of their property, which implicates substantive due process. The standard of review is extremely deferential:

• The ordinance must be rationally related to a legitimate public purpose (e.g., health, safety, morals, aesthetics, general welfare).
• If the reasonableness of the regulation is “fairly debatable,” courts will uphold it.

Regulations that are arbitrary, capricious, or bear no substantial relation to public welfare can be struck down.

Procedural Due Process

When a zoning authority makes individualized decisions—such as granting or denying a variance or special use permit—affected owners are entitled to basic procedural protections:

• Notice of the proposed action.
• Opportunity to be heard at a meaningful time and in a meaningful manner.
• Decision by an impartial decisionmaker, with some statement of reasons.

Failure to provide these can provide an independent basis for invalidating a zoning decision.

Equal Protection

Zoning can raise equal protection issues when similarly situated landowners are treated differently without a rational basis. Common contexts:

• Spot zoning that burdens one parcel without justification.
• Zoning that disfavors protected classes (e.g., racial minorities, religious groups), which may trigger heightened scrutiny.
• Exclusionary zoning that effectively excludes low-income or multifamily housing may raise constitutional issues, though on the MBE such regulations are usually tested under deferential rational-basis review unless they closely target a protected class.

Takings

Zoning can go so far that it amounts to a regulatory taking.

Key Term: Taking
Government action that appropriates or excessively restricts private property so as to require payment of just compensation under the Fifth Amendment, as applied to the states through the Fourteenth Amendment.

Key Term: Regulatory Taking
A government land-use regulation that, while not physically appropriating property, goes “too far” in diminishing its economic use or value, potentially requiring just compensation.

Key points for the MBE:

• A regulation that deprives an owner of all economically viable use of land is generally a per se taking.
• Lesser economic impacts are assessed under a balancing approach (economic impact, interference with reasonable investment-backed expectations, and character of the government action).
• Ordinary zoning that significantly reduces, but does not eliminate, property value is usually not a taking.

Worked Example 1.8

A town downzones a large tract from commercial to agricultural use, reducing its market value by 70%. The owner sues, claiming a taking. The land can still be farmed profitably. Is there a taking?

Answer:
Probably not. A substantial reduction in value alone does not establish a regulatory taking if the owner retains economically viable use of the property. Because the land can still be used profitably for agriculture, the ordinance is likely a valid exercise of the police power and not a compensable taking.

Relationship to Private Land Use Controls

Zoning ordinances operate independently of private restrictions such as covenants or easements. Both must be followed, and neither excuses violation of the other.

Private covenants and HOA rules can be more restrictive than zoning, but they cannot authorize what the zoning law forbids.

• If zoning permits an apartment building but a recorded covenant restricts the lot to single-family homes, the covenant is enforceable among the parties even though zoning would allow more.
• If zoning prohibits commercial use, a covenant allowing commercial use does not protect an owner from enforcement of the zoning ordinance.

Courts will enforce both sets of restrictions; the most restrictive combination that applies to a particular owner generally governs their ability to use the land.

Worked Example 1.9

A subdivision has a recorded covenant limiting lots to single-family residential use. The city later rezones the area to allow small apartment buildings. An owner wants to build a four-unit apartment building. Zoning allows it; the covenant does not. May neighbors block construction?

Answer:
Yes. Zoning sets the maximum allowed by public law, but private covenants can impose stricter limits. Neighbors who are beneficiaries of the covenant may enforce it to prevent the apartment building, even though zoning would permit it.

Exam Warning

Zoning ordinances that single out specific individuals or small parcels for unfavorable treatment, or that are not rationally related to a legitimate public purpose, may be invalidated as unconstitutional. On exam questions, watch for:

• Spot zoning benefiting or burdening one owner without planning justification.
• Variances granted where no unique, property-based hardship exists.
• Attempts to terminate lawful nonconforming uses immediately without nuisance, abandonment, or reasonable amortization.

Revision Tip

When analyzing a zoning question, ask in order:

1. What is the current zoning classification and what uses are permitted (cumulative vs noncumulative)?
2. Did the use lawfully exist before the change (nonconforming use or vested rights)?
3. Is the owner seeking a variance (use or area) or a special/conditional use permit?
4. Is there a potential constitutional problem (due process, equal protection, or taking)?

Key Point Checklist

This article has covered the following key knowledge points:

• Zoning ordinances are local laws, authorized by state enabling acts, that regulate land use and development under the state’s police power.
• Cumulative zoning allows higher-priority uses in lower-priority zones; noncumulative (mutually exclusive) zoning does not.
• Nonconforming uses that predate zoning changes may generally continue, but substantial expansion, intensification, or reconstruction is usually barred.
• Vested rights protect projects substantially begun in good faith under valid permits before a zoning change.
• Municipalities may phase out nonconforming uses using reasonable amortization periods, but immediate termination is typically impermissible absent nuisance or abandonment.
• Variances permit deviations from zoning rules due to unique, land-based hardship; use variances and area variances apply different standards but always require consistency with the public welfare.
• Special or conditional use permits authorize uses expressly contemplated by the ordinance, subject to conditions; arbitrary denial can violate due process.
• Zoning must comply with constitutional protections; arbitrary, discriminatory, or excessively restrictive ordinances may be struck down under due process, equal protection, or takings principles.
• Zoning ordinances and private land use controls (covenants, easements, HOA rules) operate independently; owners must comply with both, and private restrictions may be more limiting than zoning.
• Courts generally presume zoning ordinances valid and defer to legislative judgments when the relationship to public welfare is at least fairly debatable.

Key Terms and Concepts

• Police Power
• Enabling Act
• Zoning Ordinance
• Cumulative Zoning
• Noncumulative Zoning
• Nonconforming Use
• Vested Rights
• Amortization
• Variance
• Use Variance
• Area Variance
• Special Use Permit
• Taking
• Regulatory Taking
• Spot Zoning
• Ultra Vires