Zoning codes grew out of the limitations inherent in using the legal theory of nuisance as the sole tool for regulation of growth in American cities at the turn of the 19th century. In that era, if a neighbor, for instance, was affected by the operation of a smelly slaughterhouse, he or she had to file a nuisance complaint in court and let a judge decide whether the noxious activity was appropriate for the neighborhood. No planning was involved. Issues relating to building uses, heights and location were handled by courts on an ad hoc basis.
Toward the end of the 19th century, new construction techniques (the first passenger elevators were installed in New York in the 1870’s) allowed construction of ever taller buildings, which permitted increased population density. At the same time, developing public transportation systems (street cars and subways) allowed workers to live at a distance from the factories and businesses that employed them. This suggested changes to the character of neighborhoods. It seemed to make sense in these circumstances to separate the areas where people lived from the factories in which they worked. It followed that reconciling land uses through litigation, as opposed to planning, became problematic.
Zoning, as we experience it today, developed in the U.S. as the result of a Supreme Court case arising in Ohio in the 1920’s, Euclid v. Amber. In the little suburb of Euclid a comprehensive zoning ordinance was enacted in an effort to avoid being overwhelmed and absorbed by its big industrial neighbor, Cleveland. That town enacted a code that divided its territory into areas in which building sizes and uses were regulated according to zone. A land developer, Ambler Realty, sued claiming that the new laws substantially diminished the value of its 68 acres and that Euclid had “taken” value from it in derogation of the due process clause of the 5th Amendment, made applicable to the states by the 14th amendment.
At this point in time “takings” cases had involved situations where governments had physically appropriated whole parcels of land, as in the case where a City condemns property in order to build a road. Ambler Realty argued for the recognition of a “regulatory taking” where the imposition of a regulatory scheme—in this case zoning—so burdened land as to meaningfully deprive a property owner of significant value.
Euclid argued its zoning scheme was a fair and reasonable application of its inherent police powers as a necessary measure to prevent nuisances. The U.S. Supreme Court held that, in order to show a due process violation, the developer would have to have demonstrated that the zoning ordinance was discriminatory and lacked any rational basis. Failing that showing, the court allowed zoning as a proper exercise of police power asserted for a legitimate public purpose—preventing obnoxious nuisances and furthering the public welfare.
The Court did not give carte blanche to regulators, however. Two years later it was presented with a Massachusetts case, Nectow v. the City of Cambridge and an even more restrictive zoning ordinance, which this time clearly deprived a landowner of the value of his land. In Nectow the Court found that the zoning code in question was, “serious and highly injurious.” It said, “The governmental power to interfere by zoning regulations with the general rights of the land owner by restricting the character of his use, is not unlimited, and, other questions aside, such restriction cannot be imposed if it does not bear a substantial relation to the public health, safety, morals, or general welfare.”
Since then, a large number of cases have been litigated between the bookends of Euclid and Nectow. The regulating community of planners and government-centric folks push to expand zoning initiatives, while property owners and the business community push back. An example is the case of Lucas v. South Carolina Coastal Commission where in 1992 a landowner purchased beachfront land for a million dollars and was refused permission by the regulators to build upon it. The government’s position was it this was for the public good of preserving the beach front view (of course it did not want to pay for the preservation…). The Supreme Court recognized what has been characterized as a “regulatory taking,” essentially saying, “if you have identified a public good of critical importance, which substantially deprives a landowner of the value of property—pay for it, as required by the Fifth Amendment.”
How do I invalidate a zoning rule/regulation?
The constitutionality of a zoning provision can be challenged in Ohio by filing a declaratory judgment (O.R.C. Sec. 2701) or by administrative appeal (O.R.C. 2506). In addition to the protections of the U.S. constitution, that of Ohio affords protects property right protections as well:
• Article 1: “All men… have certain inalienable rights, among which are those of … acquiring, possessing and protecting property…”
• Article 16: “All courts shall be open, and every person, for an injury done him in his land … shall have remedy by due course of law, and shall have justice administered without denial or delay. Suits may be brought against the state, in such courts and in such manner, as may be provided by law.”
• Article 19: “Private property shall ever be held inviolate, but subservient to the public welfare…. [W]here private property shall be taken for public use, a compensation therefore shall first be made in money, or first secured by a deposit of money; and such compensation shall be assessed by a jury, without deduction for benefits to any property of the owner.”
It goes without saying that there will ever be tension between regulators eager to expand their authority and individuals straining to protect property rights.