Daniel R. Mandelker is a Stamper Professor of Law, Washington University in Saint Louis. I would like to thank Rummin (Ivy) Gao and Carrie Feng for their excellent research, and Dorie Bertram, Director of Public Services and Lecturer in Law, and Kathie Molyneaux, Interlibrary Loan Assistant, Access Services, for their help in finding resources. John Drobak, Robert Kuehn, John Mixon, Daniel Selmi, Ed Sullivan, Tom Pelham, Nancy Stroud, Dan Tarlock and Darcie White reviewed and commented on this article. I would also like to thank Dean Nancy Staudt and the law school for their financial support. Statutes cited in this article were current as of the date of publication.
ASSUME THE OWNER OF A SMALL COMPUTING BUSINESS LOOKED FOR A NEW SITE FOR AN OFFICE BUILDING. She found sites already zoned for this use, but they are not convenient or are more than she can afford. She then finds an affordable site on a convenient street with residential zoning. The site is affordable because the market has priced it for residential, not commercial, use. The business owner may have to pay a premium to buy the site for commercial use, but it will be less than a site zoned for commercial use. In order to use the site for the business, however, the zoning for the site must change. There are three options: a rezoning, a conditional use, and a variance.
A rezoning, sometimes called a spot zoning, is the preferred option.1 In this article, the term “spot zoning” is descriptive,2 and refers to a rezoning by the legislative body that moves a property from one zone to another on the zoning map to allow a more intensive use.3 Because the legislative body rezones to a more intensive use to meet an individual need, courts review spot zonings to decide whether they give an unfair advantage. Spot zoning law is an archaic and elusive concept made up of standing law principles, procedural presumptions, and ambiguous doctrine that make analysis difficult.4 This article attempts to makes sense of this puzzling legal mixture. It concludes that spot zoning is a flawed body of case law that requires new ideas to move it in a new direction.
Part I describes the spot zoning option, and compares it with conditional uses and hardship variances as alternatives for obtaining a change in use. Landowners are unlikely to obtain either one of the other two options. A zoning ordinance must designate conditional uses, usually marginal uses generally seen as compatible with the uses in the zoning district in which they want to locate. The zoning ordinance may not have designated a new use proposed by a landowner as a conditional use. Neither is a site considered appropriate by a landowner for a change in use likely to qualify for a hardship variance.5 Because a comprehensive revision of the zoning map is infrequent,6 a spot zoning is usually the only option.
Despite this reality, spot zoning may arouse skepticism, which Part II discusses. It may create a wealth transfer that unfairly benefits the landowner. It may indicate political capture by developers or landowners, may be an unacceptable strategy for making changes in a comprehensive zoning system, and may use a legislative process that does not meet democratic values. Part III discusses process problems suggested by skepticism. Process problems include the standing of objecting neighbors to sue, whether the presumption of constitutionality applies, and the standard of judicial review courts should use. Part IV discusses substantive policy problems and introduces the multifactor test courts use when they consider the validity of spot zoning.
Part V discusses judicial definitions of spot zoning and the multifactor test. Although the factors vary, the factors courts often consider are the size of the spot-zoned site, whether a spot zoning serves a public need or purpose or the general welfare, whether it is compatible with the surrounding area, and whether it is consistent with a comprehensive plan. This Part concludes that size of site and purpose are not useful as decision factors. Compatibility problems are important but can often be resolved through mitigating measures, such as site treatment. Consistency with a comprehensive plan is the correct test for deciding the validity of spot zoning. The planning process provides an opportunity for open and participatory policy-making at the community level. It produces comprehensive plans, whose community-based policies can provide an acceptable basis for spot zoning.
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