Zoning and Variances
What is the Zoning and Variances?
Government regulation of land use through zoning ordinances that divide a municipality into districts with specified permitted uses, along with variance procedures allowing exceptions for unique hardship situations.
Source: Village of Euclid v. Ambler Realty Co., 272 U.S. 365 (1926)
Definition
Zoning is the primary tool by which local governments regulate the use of private land. Through zoning ordinances, a municipality divides its territory into districts (residential, commercial, industrial, agricultural, etc.) and specifies the permitted uses, building dimensions, setbacks, density, and other development standards for each district. Zoning power derives from the state's police power, which is delegated to local governments through enabling statutes (typically modeled on the Standard State Zoning Enabling Act). The constitutional validity of zoning was upheld in Village of Euclid v. Ambler Realty Co. (1926), which established that zoning is a valid exercise of police power so long as it bears a substantial relation to public health, safety, morals, or general welfare.
A variance is an administrative exception to a zoning ordinance granted by a zoning board of appeals when strict application of the ordinance would cause unnecessary hardship to the property owner. There are two types: use variances (allowing a use not otherwise permitted in the zone) and area variances (allowing deviations from dimensional requirements such as setbacks, height, or lot coverage). Use variances are more difficult to obtain and require a stronger showing of hardship. The applicant must typically show that (1) the property cannot yield a reasonable return or be used for any permitted purpose, (2) the hardship is unique to the property and not shared by the neighborhood generally, and (3) the variance will not alter the essential character of the locality.
Nonconforming uses are pre-existing lawful uses that do not comply with a subsequently enacted or amended zoning ordinance. These uses are generally allowed to continue (grandfathered in) but cannot be expanded or, in many jurisdictions, rebuilt after destruction. The goal is to phase them out over time through gradual attrition rather than immediate prohibition, which would raise constitutional concerns about taking of property without compensation.
Key Elements
- 1Zoning ordinances divide a municipality into districts with specified permitted uses and standards
- 2Zoning authority derives from the police power and must be substantially related to public health, safety, or welfare
- 3Variances require a showing of unnecessary hardship unique to the specific property
- 4Use variances (different use) are harder to obtain than area variances (dimensional deviations)
- 5Nonconforming uses are grandfathered in but generally cannot be expanded
- 6Zoning decisions are subject to due process and equal protection limitations
Landmark Cases
Village of Euclid v. Ambler Realty Co.
272 U.S. 365 (1926)
The foundational Supreme Court case upholding the constitutionality of zoning as a valid exercise of the police power, establishing that zoning need only bear a rational relationship to public health, safety, morals, or general welfare.
Commons v. Westwood Zoning Board of Adjustment
81 N.J. 597 (1980)
Established the standard for use variances and area variances, holding that use variances require a stronger showing of hardship and that the 'positive' and 'negative' criteria must both be satisfied.
PA Northwestern Distributors, Inc. v. Zoning Hearing Board
526 Pa. 186 (1991)
Held that amortization provisions (requiring nonconforming uses to cease after a fixed period) can be a valid exercise of police power, though their constitutionality depends on the reasonableness of the amortization period.
Nectow v. City of Cambridge
277 U.S. 183 (1928)
Held that a zoning ordinance as applied to a particular property was unconstitutional because it bore no substantial relation to the public health, safety, or welfare, establishing the as-applied challenge framework.
Exam Tips
- Distinguish between zoning restrictions (do not make title unmarketable) and zoning violations (do make title unmarketable) -- this is a common crossover with marketable title questions.
- Remember the variance standard: the hardship must be unique to the property (e.g., unusual topography or shape), not self-created by the applicant, and must not alter the essential character of the neighborhood.
- Nonconforming use questions focus on whether the use can be continued, expanded, or rebuilt. Generally: continue yes, expand no, rebuild often no.
- Know the difference between a variance (exception for one property) and a rezoning/amendment (changing the classification for an area), as they have different procedures and standards.
Common Mistakes to Avoid
- Confusing a variance with a rezoning -- a variance is a one-property exception granted by an administrative board, while a rezoning is a legislative act changing the classification of an area.
- Assuming that self-created hardship qualifies for a variance -- if the owner created the hardship (e.g., by subdividing their own lot to create a nonconforming parcel), most jurisdictions will deny the variance.
Memory Aid
Zoning = Zones of permitted uses. Variance = 'Vary from the rule' for unique hardship. Euclid = zoning is constitutional.