What isZoning?
Zoning is a system whichlocal governmental units can use to ensure the controlled and orderlyuse of land. Although the authority to zone is fairly broad,ordinances are subject to constitutional limitations and can onlybe enacted to protect the health, safety, morals, and generalwelfare of the community. Private property rights are consideredto be tantamount. Therefore, any interference with private propertyrights must bear a substantial relationship to one of the fourcategories above.
Governmental authority to zone isobtained through the "police power" of a government. In Missouri,the state legislature has authorized municipalities, county, andtownships to zone. According to the United States Supreme Court,zoning bodies can only he who is authorized through statestatutes to zone the ability to zone those things that "substantiallyrelated to the safety, health, morals, and general welfare of society. Village ofEuclid v. Ambler Realty Company, Inc., 272 U.S. 365 (1926).
Most zoning ordinancesset out a variety of districts within the community. Typical districtsmay include single-family residential, multi-family residential,agricultural, commercial, and industrial districts. There mayalso be instances where a zoned district may have an"overlay". This means a district could have anadditional set of restrictions on top of the primary district.Floodplain zoning is one example of a common "overlay" zoningdistrict in Missouri.
The Missouri Statutes only giveexplicit authority to zone to municipalities, counties which havepassed zoning through majority vote, and certain townships whichhave passed zoning through a majority vote. Regional PlanningCommissions have the authority to create plans, but they do nothave the authority to implement any comprehensive plan developed.Very few rural counties or townships in Missouri have passedcounty-wide or township zoning. Although there have been anincreasing number of counties across Missouri trying to passcounty zoning through a county-wide vote, a number of theseattempts have been unsuccessful. Township zoning only affects 23 countieswhich still operate at township level of government.
What is includedin the zoning ordinance?
Usually zoningordinances contain the following: (1) a statement of purpose; (2) definitionsof terms used in the ordinance; (3) a listing of the districtsincluded in the ordinance, including special and mixed-usedistricts and conditional, accessory or permitted uses ; (4) alisting of procedures for obtaining permits, getting permission from thezoning commission and ways that you can appeal decisions of thezoning commission; and (5) miscellaneous provisions. Zoningordinances are required to be based on the individual needs of acommunity, so zoning ordinances will vary across the state. Somecommunities have extensive zoning ordinances that detail every possible contingency,while other communities have very simple zoning ordinances.
Each districtdescription is generally worded so as to list permitted useswithin the district. For example, in an agricultural district,the ordinance might permit only certain types of agriculturaluses. Uses not listed as permitted are usually not allowed. Some ordinanceshave not been rewritten in several decades, so the zoningcommission may be required to interpret the ordinance in order to determinewhether a new use would be permitted under the ordinance.
Most zoning ordinancesprovide for conditional and accessory uses. Conditional use permitsare granted by the zoning commission when an applicant can provethat the proposed use meets the set of conditions set forth inthe ordinance. This set of conditions is contained in theordinance itself so that all applicants are bound by the same setof restrictions. This prevents the zoning commission from givingsome applicants special treatment and not administering theordinance in a haphazard way.
An accessory use is onewhich is secondary to the primary use of the parcel of property. Forinstance, some ordinances provide for certain home-basedbusinesses to be considered an accessory use in a residentialarea. Another example might be a structure, such as a workshop ortoolshed, in a person's backyard.
Who is responsiblefor zoning?
In Missouri, planningand zoning authority is granted to counties in Section 64 of the MissouriStatutes, to townships in Chapter 65, and to cities, towns andvillages in Chapter 89. Second and third class counties can optto have county-wide planning and zoning, but must first obtainvoter approval. Local governments appoint citizens to be membersof the zoning commission, which is responsible for enacting andoverseeing the zoning ordinance. In some areas the planningcommission, the body responsible for planning the physicaldevelopment of the community, is combined with the zoning commission.This body is called the planning and zoning commission and isgiven the authority of both of these commissions.
Are there anylimitations on local zoning power?
Yes. Zoning ordinancesmust relate to the protection of the health, safety, morals and generalwelfare of the community. Ordinances must also be constitutional.Common constitutional arguments made against particularordinances are that the ordinance is a "taking" andthat the ordinance is "exclusionary zoning".
Zoning ordinances cannotbe discriminatory because the United States Constitution grantsequal protection to all persons in the United States. Zoning isexclusionary in nature in that it prohibits certain uses of land.However, zoning which excludes certain uses in a discriminatorymanner may be considered an unlawful use of the government's zoningpower.
According to the UnitedStates Constitution, the government cannot take private property forpublic use without providing just compensation to the owner ofthat property. A "taking" occurs when a zoning ordinanceinterferes so much with a private property owner's use of theland that the ordinance robs the property of its economic value.If a court decides that a taking has occurred, the governmentwould then be required to compensate the owner for diminishedvalue of the property. The United States Supreme Court hasaddressed the takings issue several times in the past decade,however it is still unclear how much interference with privateproperty is necessary before a zoning ordinance will be considereda taking. In the most recent Supreme Court case on this issue,the court found a taking had occurred when the ordinancesdestroyed "all economically viable" uses of theproperty. It is unclear how Missouri courts will follow this SupremeCourt decision when faced with a zoning ordinance that does notdestroy all economic uses, but rather only substantially diminishesthe economic value of the property.
It is unconstitutional for agoverning body to zone retrospectively, thus zoning can only affectnew uses of property. This means that only brand new uses of aparcel of property or substantial changes in its present use willbe affected by new zoning restrictions. Governing bodies arerequired to "grandfather" existing uses into new zoningregulations, thus all existing uses of property once zoning isintroduced will be acceptable uses, even if they may beconsidered nonconforming under the new zoning regulations.
Copyright 1996, All RightsReserved.