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ZONING

When a local government decides how to allocate land uses it acts under the POLICE POWER exercised by the states and their governmental subdivisions to regulate for the public health, safety, and welfare. The first zoning ordinances appeared early in the twentieth century as a result of urbanization and the encroachment of factories and noxious uses in residential neighborhoods. In EUCLID V. AMBLER REALTY (1926) the Supreme Court upheld a comprehensive local zoning ordinance, rejecting a SUBSTANTIVE DUE PROCESS attack. Although today's zoning ordinances are more sophisticated than the simple division of land uses upheld in Euclid, the basic constitutional issues raised by zoning decisions remain an unusually stable area of constitutional law.

Because a zoning ordinance is adopted by a legislative body, and because zoning amendments are legislative decisions in most states, the constitutional scrutiny applied to zoning is no different from that applied to LEGISLATION at any governmental level. The courts use the due process analysis of Euclid to uphold zoning if they find a reasonable relationship between the zoning and the city's police power objectives. Like other social and economic legislation, zoning comes to court clothed with a presumption of validity. A court will not question the wisdom or the motives of legislators. If a court finds any RATIONAL BASIS to support zoning as an implementation of the public health, safety, and welfare, the ordinance will be held valid. A court considers factors such as increased traffic and congestion, compatibility with adjacent uses, and impact on land values of neighboring properties. Courts often apply a fairly debatable rule: if reasonable minds can differ on the reasonableness of an ordinance, the municipal decision must be upheld. Some state courts are more willing than the federal courts to use theories of STATE CONSTITUTIONAL LAW to strike down zoning regulations.

Although a court may be reluctant to question the police power objectives of zoning, it may be more inclined to examine the effects of a zoning restriction on the value of property. Even when a zoning ordinance achieves public objectives, it may be held to be a TAKING OF PROPERTY if it denies a property owner all economic use of his land. The leading case is Pennsylvania Coal Co. v. Mahon (1972).

Other guarantees may also serve as bases for constitutional challenges to zoning ordinances. The FIRST AMENDMENT repeatedly forms the basis of attacks on local sign ordinances and ordinances regulating adult businesses. In the 1960s and 1970s, a series of "exclusionary zoning" cases challenged a municipal refusal to rezone to allow mobile homes, apartments, or anything other than single family homes on large lots. Arguing that such practices violated the EQUAL PROTECTION clause, landowners and hopeful future residents had varying success. The Supreme Court was originally not interested in fashioning a federal constitutional remedy. In ARLINGTON HEIGHTS V. METROPOLITAN HOUSING DEVELOPMENT CORP. (1977) it severely restricted the authority of the federal courts to find RACIAL DISCRIMINATION in exclusionary zoning. Some state courts have been more aggressive. In Southern Burlington County NAACP v. Mount Laurel (1975), for example, the New Jersey Supreme Court held, on both substantive due process and equal protection grounds, that a municipality cannot close its doors to the housing needs of the region, including low-cost housing. Then, in Cleburne v. Cleburne Living Center, Inc., (1985) the Supreme Court gave some indication that it would examine more rigorously the exclusionary classifications in zoning ordinances.

Zoning ordinances also require landowners to obtain development permission under a host of administrative procedures that vary from one JURISDICTION to another. Whether it be subdivision or site plan approval, variances, special or conditional uses, or environmental permits, the process is rife with constitutional pitfalls for local administrative bodies. The standards for approving or denying permits must be made specific in the ordinance; otherwise, a state court may hold that the ordinance unconstitutionally delegates legislative authority to an administrative body. Applicants must be given PROCEDURAL DUE PROCESS, including NOTICE and an opportunity to be heard, and, in some states, even quasi-judicial procedures. The agency's decision must be based on evidence sufficient to support it.

Perhaps the most serious danger to the constitutional status of zoning is the threat of a radical departure in the judicial relief afforded a victorious landowner. Under the SEPARATION OF POWERS doctrine, the traditional judicial relief for invalid zoning has been to grant an INJUNCTION prohibiting its enforcement and allow the municipality to rezone. A few courts in the 1970s held that confiscatory zoning amounted to taking of property for public purposes and required cities to compensate landowners. The Supreme Court has not yet decided the availability of this remedy under the federal Constitution.

Damages for a taking may be available under SECTION 1983, TITLE 42, UNITED STATES CODE. In MONELL V. DEPARTMENT OF SOCIAL SERVICES (1978) the Supreme Court held that municipalities can be sued under Section 1983, and the specter of money damages for any denial of constitutional rights in the zoning process became a reality. The damage to a landowner whose economic return is restricted by zoning and who must proceed through a time-consuming local zoning process perhaps including litigation can be substantial. The traditional constitutional deference afforded local government under its police power remains, but the possible consequences of stepping outside constitutional bounds have become severe.

Zoning ordinances now include sophisticated techniques, such as computer-based point systems for approving new development, incentive and bonus programs, and the transfer of development rights. These new techniques have not yet been extensively tested in the courts, but they raise constitutional problems similar to those raised by conventional zoning. Judicial attention in the years to come will focus on the constitutionality of these techniques and on the suitability of a damage remedy in zoning cases.