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May 31, 2017

An Introduction to Zoning and Land Use

By Ronald S. Cope

Excerpted from Ronald S. Cope, The Zoning and Land Use Handbook (2016), xvii–xxiii. Citations omitted.

Welcome to the world of zoning. It is a world filled with passion, intrigue, and mystery. It is a world of warring factions and battles galore. It is also a thoughtful world where philosophy and science mix with economics, politics, and sociology. It is a world of federal, state, and local government laws. It is a world that witnesses the best and worst of local government. There is a rough and fundamental democracy at work where the outcome of a zoning petition is often determined by the sentiments expressed by local residents who pack a hearing room and make their voices heard. In large municipalities or counties, it is often a single ward boss or alderman who makes the real decision. Everything that follows from that decision is nothing but fluff to satisfy the appearance of due process. In those circumstances, the zoning decision has all the characteristics of a 12thcentury feudal baron presiding over his court.

For those of you who are new to the “zoning game,” it is important to recognize that meeting with local politicians and local zoning officials is a fundamental part of the zoning process. These meetings can prove critical. Zoning is, for the most part, a creature of local government, and local government may well mean local politics.

As a newly minted local government attorney, the very first village board meeting I attended had, as its centerpiece, the issue of whether to grant a rezoning to allow for the construction of an eightstory condominium building in an area of singlefamily homes. To say the least, this was a matter of great controversy in that community and brought out almost every singlefamily homeowner in the vicinity of the proposed project.

The senior partner of the law firm I worked for, who was the village attorney, asked me to attend the meeting in his place. As I drove up to the small brick building that housed the village hall, I was surprised to find that the parking lot was full of cars and even the parking spaces on the street were taken. In my naiveté, I thought, “what civicminded people live in this community.” I was duly impressed.

I finally did find a place to park and walked back to the village hall. I found that the crowd was overflowing onto the sidewalk leading to the entrance and that there were police on duty to help maintain order. When I advised one of the police officers that I was an attorney from the village attorney’s office, two rather large police officers took me under each arm and guided me through the crowd right up to the dais where the village board sat. I was plunked down next to the acting village president. The village president had taken the opportunity to be on vacation this particular evening.

To say that there was tension in the room would have been an understatement. It was reminiscent of the old cowboy movies where a lynch mob gathers outside the local jail and someone in the crowd yells, “Get a rope.” It seems that the residents were under the impression that the village attorney and the mayor were in cahoots with each other to ensure the construction of the condominium building: the crowd believed that each owned an interest in the project. That, of course, was a false rumor but, nevertheless, it had its effect on the mood of the crowd.

Ultimately, the village board members were not swayed by the epithets hurled at them by various speakers who were there objecting to the project. The board voted to approve the zoning. All these years later I still remember the tension in that room.

Not surprisingly, as often happens in these cases, once the project was approved and constructed, it was found that the condominium could live peacefully with the singlefamily residences and, indeed, some of the residents of the village who owned homes in the vicinity eventually bought apartments in that building.

That evening provided me with a valuable lesson. It introduced me to the NIMBY syndrome (“not in my backyard”). It also taught me that zoning decisions similar to the one concerning the condominium development cannot be made based on the passions of wellintentioned citizens, but must be made based upon hard facts, good planning, and zoning law. One of the critical rules that I have emphasized when speaking to local government officials is that their decision should not be made based upon the passions of the audience at a zoning hearing. Certainly, people who attend these hearings and object to a development believe that they are protecting what are probably their most valuable assets, the investments that they have in their homes. NIMBYs are not always wrong. Quite the opposite: they are certainly experts on their neighborhood and can often provide valuable insights not known to the plan commission or zoning board. While NIMBY has become a term of derision, the local residents’ views should be respected and carefully considered. Hidden behind the anger and hyperbole may well be important facts.

It is important that you know about the community or neighborhood in which the proposed development is to take place as well as know the people who are the decision makers. Just as you would want to know about a judge or jury in a matter that is being litigated, so too, you must know about the people who live in the community and the local officials. Gathering this information and meeting with the representatives of local government to discuss a project will save you and your clients’ valuable time and money.

At the same time, while it is important to know the community and the local government officials, their opinions are not the last word in what might has been used to offset local prejudices against low and moderateincome housing.

The United States Supreme Court has weighed in on zoning issues. The United States Constitution protects property owners from what might be built at a given location. State and federal constitutions are the great offset to local prejudice. As you will see from reading this book, the United States Constitution plays an important role in determining how property might be used. It is also important to not only become familiar with local ordinances, the municipality’s comprehensive plan, and its zoning code, but also to determine whether there are specific state or federal laws that might govern an application for a particular use. Laws such as the Fair Housing Act (FHA) and the Americans with Disabilities Act (ADA) might make a huge difference in whether or not a project is approved. For example, the ADA has been used with a great measure of success by developers of group homes. The FHA has been used to offset local prejudices against low- and moderate-income housing.

The United States Supreme Court has weighed in on zoning issues. The United States Constitution protects property owners from what might be viewed as arbitrary or capricious decisions by a local zoning authority. Zoning laws, insofar as they restrict development, must have a rational basis.

The first United States Supreme Court zoning opinion came in 1926 in the case of Village of Euclid v. Ambler Realty Co. Up until that case, much of the law restricting certain uses was based upon the common law of nuisance. A nuisance law balances the rights of landowners to use their land as they see fit against an obligation not to use land in a way that injures their neighbor. In Ambler Realty Co., the Ambler Realty Company sued the Village to enjoin the enforcement of the Village’s zoning ordinance. The Village had rezoned certain property along a railroad rightofway as residential and Ambler Realty Company had purchased this land for industrial development. In upholding the ordinance, the Court highlighted the case of City of Aurora v. Burns, in which the Supreme Court of Illinois upheld a comprehensive building zoning ordinance that divided the city into eight districts, which included “exclusive residential districts for one and twofamily dwellings, churches, educational institutions and schools.” The Court quoted the Supreme Court of Illinois’s opinion in City of Aurora, which stated:

The constantly increasing density of our urban populations, the multiplying forms of industry and the growing complexity of our civilization make it necessary for the state, either directly or through some public agency by its sanction, to limit individual activities to a greater extent than formerly. With the growth and development of the state the police power necessarily develops, within reasonable bounds, to meet the changing conditions.

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The exclusion of places of business from residential districts is not a declaration that such places are nuisances or that they are to be suppressed as such, but it is a part of the general plan by which the city’s territory is allotted to different uses in order to prevent, or at least to reduce, the congestion, disorder and dangers which often inhere in unregulated municipal development.

Zoning laws allow for orderly development and protect property values in a way that cannot be achieved by ad hoc decisions in common law nuisance cases. The constitutional rights of the individual property owner are balanced against the welfare of the community.

Of course, zoning begins with good planning. Having and maintaining a comprehensive plan cannot be overemphasized. Someone seeking a rezoning should always begin by reviewing the comprehensive plan of the municipality. Unfortunately, many municipalities do not have a plan or they have a plan that is out of date. However, where there is an updated plan, it can provide important insight into the local planning goals and whether the proposed development fits those goals. Plans are general in nature. A review of the plan plus a meeting with the zoning administrator or other local official should form the initial basis of a zoning inquiry.

Two of the most famous plans are GeorgesEugène Haussmann’s Renovation of Paris, France, and Pierre Charles L’Enfant’s plan for the City of Washington, D.C. Haussmann was commissioned by Napoleon III to undertake a vast public works project to provide air and open space, to connect and unify different parts of the city, and to make it more beautiful. Today, almost every zoningenabling act begins with its purpose being to provide adequate light, pure air, and safety from fire and other dangers. The Emperor gave Haussmann the authority to expropriate land as needed to create a great cross in the center of the city along the Rue de Rivoli and Rue St. Antoine and to create two new boulevards—Strasbourg and Sebastopal. The center of modernday Paris is the result of Haussmann’s plan and the dictatorial authority of the Emperor.

L’Enfant, on the other hand, had more or less a blank slate to work on. The new Constitution of the United States, which took effect in 1789, gave the United States Congress the authority to establish a federal district up to ten square miles in size. The 1790, Congress passed the Residence Act setting the site of the federal city on the shores of the Potomac River. Thomas Jefferson worked alongside President Washington in overseeing the plans for the Capitol. Washington, D.C., is, in fact, built in keeping with much of the original design by L’Enfant, Jefferson, and Washington.

In contrast to these carefully engineered plans, many cities and villages throughout the United States have developed without any real planning. In some of our older towns one can wander down narrow winding streets which simply grew up based upon the needs of the inhabitants and the use desired by individual property owners. On the other hand, many postWorld War II suburban communities have grown out of plans prepared by real estate developers. These developers have laid out large subdivisions where new homes could be built. One such village is Park Forest, Illinois, the product of developers Nathan Manilow, Carroll F. Sweet, and Philip M. Klutznick. On October 28, 1946, these developers held a press conference to announce the planned development of a new selfgoverning community in Chicago’s south suburbs. This new community, Park Forest, was designed by Albert Peets to provide housing for veterans returning from World War II. Park Forest and other middle class suburbs grew out of the new prosperity after the war. So, too, a city on the East Coast was developed called Levittown. Levittown became synonymous with moderately priced “cookie cutter” houses. Although suburban communities had long been the exclusive domains of the “upper classes,” at the end of the war a new type of suburb was developed. These new suburbs were to be home to working men and women who made up the middle class. It is an excellent example of how society evolved and how economics and social pressure bring about new development.

The rules governing subdivisions and planned unit development are spelled out in our state statutes and municipal codes. They set ground rules for what is required in developing a new neighborhood or even a new municipality. The rules require planning for roads, parks, and schools. Our subdivision laws set forth requirements for where sewer lines and water mains are to be located. They dictate the location of sidewalks and even bicycle paths.

In addition, environmental laws such as the Clean Water Act, the Clean Air Act, the Resource Conservation and Recovery Act, and the Comprehensive Environmental Response Compensation Act have their impact on modern day development.

Of course, unlike Haussmann and L’Enfant, not all plans can be carried out pursuant to the power of an emperor or of our congress. Municipalities are bound to follow constitutional limitations that require a valid “public purpose” and compensation pursuant to the Fifth Amendment of our Constitution for the taking of private property in furtherance of a government plan of development.

Kelo v. City of New London, Connecticut, is a case that generated much debate regarding a city’s decision to take property for economic development and whether that “taking” satisfied the “public use” or “public purpose” requirement of the Fifth Amendment. This case raised a substantial fear that government might arbitrarily take land for the benefit of a third party under the guise of a somewhat nebulous rubric of “economic development.” For decades, the City of New London, Connecticut, had been in a state of economic decline. To alleviate these conditions, the New London Development Corporation, a private nonprofit entity, developed a plan with state funding that ultimately would have brought Pfizer, Inc. to the City of New London to build a $300 million research facility. The plan required the development of 90 acres of land within the municipality, and the centerpiece of this plan was the proposed Pfizer facility. This new development would create numerous jobs and generate tax revenue to help build “momentum for the revitalization of downtown New London.”

To carry out the plan, one of the properties that needed to be taken by eminent domain was that of Mrs. Kelo. She had lived in her home for a number of years and was not eager to move. There was no allegation that any of the property to be taken was blighted or otherwise in poor condition. To the contrary, the properties would be taken or “condemned” only because they were located in the development area. Ultimately, the taking of Mrs. Kelo’s property became a lawsuit that reached the United States Supreme Court, where the Court determined that the City had developed a comprehensive and elaborate economic development plan that justified the taking. The Court stated:

[G]iven the comprehensive character of the plan, the thorough deliberation that preceded its adoption and the limited scope of our review, it is appropriate for us to say, as it was in Berman, to resolve the challenges of the individual owners, not on a piece meal basis but rather in light of the entire plan.

The Court upheld the taking of private property even though that property would ultimately go to a third party private owner. There was, the Court held, a valid “public purpose.”

Unlike Haussmann and L’Enfant’s development, which benefited from unlimited power to the former and a clean slate for the latter, redevelopment in the modernday United States has become far more complex and requires much more analysis to overcome legal hurdles.

In many ways, representing a developer or a municipality in dealing with land use issues can be one of the most challenging legal undertakings. The ultimate effect of a merger or acquisition, a large financial settlement in a tort case, or a successful defense or prosecution of an alleged criminal can all bring satisfaction to an attorney. However, there is, perhaps, no greater satisfaction than being able to see the tangible results of your efforts in redeveloping a downtown, building a subdivision, protecting valuable environmental areas, preserving farm land, opening up new energy resources, or seeing families in their new homes making use of parks and recreation facilities and schools that were all brought about through the planning and zoning process of which you were a part.

It is important to keep in mind that it is people who make our neighborhoods, people who make our cities and villages, and people who make our country. The developments that take place are a reflection of the people. These developments reflect the needs and desires of the people. There are enormous social and economic forces at work that are not readily seen but that are present nonetheless. These forces determine what ultimately will be developed and what will be preserved. We, the people, living in our cities and villages have the great opportunity through participation in local government to help determine and shape the course of our communities. The planning and zoning laws discussed in this book are tools to help shape and control the course of development.

Local government is the government that is closest to the people. It is the government that provides police and fire protection as well as ambulance service. It is the government that provides local roads as well as water and sewer service. It is the government that lays out and maintains sidewalks and lighting as well as parks and recreation facilities. It is truly the most important government in our lives. The planning and zoning laws that determine what takes place within our communities are an important part of local government, and, perhaps, the most important part. Whether you live in a high rise in the city, on a farm beyond the suburban areas, or anywhere in between, land use laws are critical to preserve the lifestyle in those areas and to shape future development. Hopefully, this book will provide you with answers or, at least, guideposts to solve those puzzling zoning problems that can have such a serious impact upon the communities in which we live.

By Ronald S. Cope

Ronald S. Cope is a partner in the Chicago office of Nixon Peabody LLP. He is the author of The Zoning and Land Use Handbook (2016), published by the Section.