Chapter 4 Types of Zoning

• Library: The Zoning and Land Use Handbook (ABA) (2016 Ed.)

Chapter 4 Types of Zoning

A. Districting

In one common form of zoning, "a municipality divides an area geographically into particular use districts, specifying certain uses for each district. 'Each district or zone is dedicated to a particular purpose, either residential, commercial, or industrial,' and the 'zones appear on the municipality's official zoning map.'"¹ By engaging in this form of zoning, a "municipality 'provides the basic framework for implementation of land use controls at the local level.'"² In early zoning, the basic division was into residential, business, and manufacturing districts. This grouping can still be found in modern ordinances, but the refinements within each broad classification have become quite extensive. The manner and selection of the types of districts is, to a great extent, dependent upon the imagination of the planners. In New York City, for example, the zoning ordinance designates ten basic residence districts R-1 through R-10. The numbering generally refers to a density factor, which, in turn, refers to how many units can be placed on a given piece of land.³

The City of Chicago zoning code⁴ has eight residential zoning categories. They range from RS-1 to RM. This zoning code, as do many others, also permits other types of uses within a residential district. Some of these uses include, for example, housing for the elderly, assisted living facilities, convents and monasteries, and colleges and universities. In some cases it is necessary to obtain special use approval, for example, for nursing home or skilled nursing care facilities, group homes, or community homes.⁵

The City of Los Angeles zoning code contains several commercial classifications or districts. These range from CR, which is limited commercial and includes such uses as banks, clubs, hotels, churches, and schools, through C1-C1.5, C-2, C-4, C-5, and CM. This breakdown includes a variety of uses including retail stores, hotels, clinics, broadcasting studios, garages, and other similar uses.⁶

B. Early Districting: Exclusion of Named Uses and Cumulative Use Restrictions

The earliest districts were divided up in terms of the types of uses to be excluded. Only the specific uses named were prohibited; any use that had not been named was permitted as a matter of right. This was true regardless of how incompatible the new use was with the permitted uses. This zoning technique was soon abandoned.

Another characteristic of early zoning was the "cumulative" or "pyramiding" of permissible uses. In this type of zoning, any use permitted in a more restrictive district was permitted in a less restrictive district. For example, single-family residences were permitted in heavy manufacturing districts because almost every use was permitted in a heavy manufacturing district. The effect in terms of planning was, in some cases, absurd, and many old residential relics can be seen abandoned in business and manufacturing areas. This zoning technique, although older in origin, still persists today, as even in modern ordinances "cumulative" use techniques are employed. This is especially so within the same general category of use. So, for example, in many ordinances, single-family homes are permitted in apartment districts, and tailor shops are permitted in shopping centers.

C. Exclusion of Those Uses Not Specifically Permitted

A more modern zoning practice is, rather than specifically excluding uses, to permit certain uses and exclude all those that are not specifically permitted. The question of how an author of a zoning code or map determines what uses may properly be excluded from any given zone is not always easy to answer.

D. Exclusionary Zoning

One of the most significant problems facing municipalities relates to the exclusion of particular uses from a given district or even from the entire municipality. It is often a very difficult planning problem to determine which uses can be excluded from given districts. In some instances, a determination is made that particular uses can be excluded from the entire municipality. One of the principal problems that arises in connection with such exclusionary zoning is in the area of economic and racial segregation. This is particularly true in suburban communities that enact zoning ordinances designed to prevent an influx of low-income housing. Racial segregation is, of course, invalid where overtly done in the form of a specific racial prohibition.⁷ The more significant questions asked relate to the question of economic segregation, which many argue is, in fact, racial segregation. This topic is, in and of itself, the subject of many law review articles, and it would be impossible to summarize in any concise way the law on this subject.⁸

In a more mundane and pedestrian vein, courts have long recognized that a municipality has the power to exclude residences from a commercial or industrial district.⁹ It has also been held that, under given facts, the municipality...