Mar 24, 2023

The [D]evolution of Zoning

The Legal Intelligencer

By: Marc D. Jonas, Esquire

In its 1926 opinion in Village of Euclid, Ohio v. Ambler Realty Co., 272 U.S. 365 (1926), the United States Supreme Court upheld what is known today as Euclidean zoning – use-based zoning districts regulating residential and non-residential uses together with area and bulk standards. At issue in Village of Euclid was the exercise of the police power. Were the land use regulations reasonable? Did they evince a substantial relation to the public health, safety, morals, [note the Oxford comma] or general welfare?

The philosophy and application of Euclidean zoning are seen far and wide, from state to commonwealth. Today, zoning is a subset of what is known as “land use”. That term encompasses both zoning and subdivision/land development. Pennsylvania courts have said that zoning relates to the use of the land, and subdivision/land development involves the details of improvement to the property and the construction of those improvements.

Merriam-Webster defines zoning as:
The act or process of partitioning a city, town, or borough into zones reserved for different purposes (such as residence or business). Also: the set of ordinances by which such zones are established and regulated….

As an alternative to Euclidean zoning, some local governments have enacted form-based zoning. As might be expected, there is now the Form-Based Codes Institute (“FBIC”) which defines a form-based code as:
A form-based code is a land development regulation that fosters predictable built results and a walkable public realm by using physical form—rather than separation of uses—as the primary basis and focus for the code and standards.

To further emphasize how far zoning has evolved or, some might say devolved, we have zoning acronyms:

  • NIMBY – not in my back yard
  • PITBY – put it in their back yard, a more passive aggressive form of NIMBY
  • BANANA – build absolutely nothing anywhere near anyone
  • LULU – locally unpopular land use
  • CAVE – citizens against virtually everything

This article is a view from the zoning trenches after many years and nights spent out on the town. In many suburban localities, public meetings and quasi-judicial hearings take place at night. After a night in the trenches, zoning lawyers spend the next day recovering from a “workover” — essentially a hangover, including the brain fog, minus the benefit of a glass of your favorite beverage the night before.

In its infancy, the practice of zoning was viewed as something any lawyer could do. As time has passed, we see attorneys with practices focused on land use and municipal law. In some states, unless the attorney is certified, one cannot describe himself/herself as a specialist.

I have often thought of zoning lawyers as trial lawyers with short attention spans. In one evening, the zoning practitioner may employ such skills as opening argument, presentation of witnesses, direct examination, cross-examination, redirect examination, re-cross examination, objections to evidence, introduction of expert witnesses, hearsay, and closing argument. All this while, like a trial lawyer, ensuring that all legally relevant issues are preserved for possible appeal.

Practice point: do not ask a question if you do not already know the answer. A young lawyer, who will remain nameless, queried (?) an objector opining on the impact of proposed development on a nearby stream. When vigorously cross-examined and questioned about how the objector could weigh in on this arcane issue, the objector replied that he had a PhD in biology.

Perhaps the message is that zoning is not for the faint of heart or legal dilettante. In a recent continuing legal education program on the issue of ethics and conflicts of interest, the lecturer reported that each time he sat in the appellate court listening to arguments of zoning lawyers, his eyes inevitably glazed over.

Many state legislatures have enacted legislation empowering local government to pass land use regulations. In 1968, the Commonwealth of Pennsylvania enacted the Pennsylvania Municipalities Planning Code (affectionately knowns as the MPC) which, for some reason, does not apply to the sacred cities of Philadelphia and Pittsburgh. As a side note, political commentator James Carville once described the area between certain suburbs of Philadelphia and Pittsburgh as “Alabama”.

In the Commonwealth of Pennsylvania, notwithstanding Mr. Carville’s somewhat harsh view, there are, wait for it, 2,560 municipalities – cities, townships of the first class, townships of the second-class, boroughs, home rule communities, and counties. In other states, land use is largely controlled by counties. In Pennsylvania, each of the 2,560 municipalities has its own ordinances, policies, rules, and staff. Not to mention varying politics and diverse personalities. Needless to say, it is… exhausting. Thus, the need to find a good coffee shop on your way to what could be a long night, perhaps extending into the early morning.

There are higher-level, intellectual aspects of zoning. From time to time, a zoning controversy winds its way to the United States Supreme Court. In a 2017 case arising from Wisconsin, the Supreme Court addressed what might be viewed as an eccentric doctrine relating to the merger of lots. Essentially, municipalities can enact local regulations that compel the merger of tax parcels where one or more abutting parcels held under common ownership do not meet current zoning regulations, even if the parcels are separately deeded and purchased at different times. The Supreme Court upheld that local merger doctrine, basing its decision on the legitimacy of minimum lot sizes, the policy of eliminating undersized lots, and the availability of relief via a variance. The opinion is worth reading and includes a valuable lesson on the importance of developing the evidentiary record.

To avoid the merger of abutting lots, one enterprising developer created an array of corporate entities, selecting names, the story goes, from the Yellow Pages. Remember those? That developer acquired numerous undersized lots and put those lots in different corporate ownerships, so that no abutting lots were held under common ownership, thereby skirting the merger of lots regulation and forcing the local government to yield to the developer’s development scheme.

Speaking of variances, the bar to obtain one may be based on “hardship” or, more specifically, “unnecessary hardship”. That is distinguished from a personal articulation of hardship. For example, the unhappy property owner who buys a dining room set too large for the room and, therefore, needs a building addition which encroaches into the required minimum side yard in order to accommodate the new furniture and family members. Isn’t that a hardship? Or the business that yearns for larger and more signs. Not to mention the homeowner who wants to keep a therapy goat.

Land use cases can implicate state and federal constitutional issues and federal legislation such as the Americans with Disabilities Act, the Fair Housing Act, and the interestingly combined legislation known as the Religious Land Use and Institutionalized Persons Act designed to prevent zoning discrimination against religious land uses.

In some jurisdictions, the courts wrestle with whether certain “legitimate” land uses require special protection to ensure that each local government provides an opportunity for that use. By way of example, airports, townhouses, mobile home parks, quarries, landfills, and convenience stores with fuel sales. The protection of “legitimate” land uses ensures that each local government shares the burden of affording opportunities for those designated land uses.

The concept of a single-family home, and specifically the question of what constitutes a “family”, is often a subject of contest when a landowner proposes a group home, a sober house, Airbnb, or a religious use. There was a report some years ago about a number of college students living together but exceeding the occupancy limits of the local government. They declared themselves a church and sought protection under the Religious Land Use and Institutionalized Persons Act. This author while representing a local zoning board recently heard a proposal from a six-member church seeking approval for 6 burial sites on the church property.

Whether shaped by legislation or court decision, land use categories are constantly changing. Practitioners cannot rely on historical concepts.

Because of the time, money, and effort expended by landowners to develop controversial properties, legal counsel may look to the federal courts for relief. In the Third Circuit, to avoid legal actions alleging substantive due process violations, the courts have adopted from police chase cases (seriously) the standard of “shocks the conscience”. Not surprisingly, in these times where we experience so much local controversy, the “shocks the conscience” standard sets a high bar. The objectionable conduct of the municipalities involved in local battles is simply viewed as typical and to be expected.

Add to these substantive difficulties the procedural hurdles before a judge considers a zoning case. The probability that a zoning hearing will begin and end in one night is typically very low, challenging those of us with the short attention spans. Hearings on zoning applications have played out over an extended period of time, with some hearings taking months or years to conclude. In one land use challenge, a landowner employed three attorneys over the course of 50+ hearings to make the case that a big-box retail use was a separate and distinct use, a claim rejected by the courts.

Hurdles are not limited to zoning hearings. Planning commissions, shade tree commissions, environmental commissions, and any other number of local boards, committees, and commissions get a say (as set by local ordinance). Who comprises these boards?

Local proceedings can feel like trial by ambush, as there is no advance pre-hearing discovery of witnesses and evidence to be considered. There can be a dearth of leadership and management of these proceedings with a lack of civility. What rules of conduct apply? Is hearsay permitted? Do the rules of evidence apply? Can you say “minefield”?

Every now and then a local zoning board rises to the occasion and exhibits surprising moxie. In a contentious battle over a landfill expansion (definitely a LULU), the objectors offered an expert imported from out-of-state. Cross-examination revealed that the expert had neither read the local zoning ordinance, nor had he any experience with the permitting of landfills in the state. The zoning board barred the expert’s testimony, leaving the objectors’ attorney virtually speechless, and witness-less.

In these particularly difficult and contentious times, zoning has become yet another arena for battle with no end in sight. No matter what is proposed, even a single-family home on a large lot, it will likely be viewed as the end of civilization as we know it. More traffic, increased flooding, the threat to the bog turtle which for some reason people often find where you least expect it, noise, people, vagrants, crime, a diminution in property values are among the complaints. Objectors have complained that the new homes will be more expensive than their home which will be difficult to explain to their children, or that the new homes will increase their property values (they meant their real estate taxes).

Perhaps this is part of the trickle down of a lack of civility in the national context. Would yet more legislation help? Is a county model better than the daunting array of smaller municipalities? Should there be some qualification or training for local leaders, perhaps with a touch of mediation which is rarely employed in land use? Some tweaks and changes are in order. Otherwise, those in the land use trenches will continue to endure long and trying evenings and those seeking to improve their homes, develop land, create new businesses, or relocate existing businesses will face significant, expensive, and frustrating delays, plus the possibility of just an unpleasant night out.

Reprinted with permission from the March 24, 2023 issue of The Legal Intelligencer. (c) 2023 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.

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