Outline of the Law of Zoning in the United States
| Author | W.L. Pollard |
| Published date | 01 May 1931 |
| Date | 01 May 1931 |
| DOI | http://doi.org/10.1177/000271623115500203 |
| Subject Matter | Articles |
15
Outline
of
the
Law
of
Zoning
in
the
United
States
By
W.
L.
POLLARD
Attorney
at
Law;
Special
Counsel,
Los
Angeles
Realty
Board
and
California
Real
Estate
Association
on
City
Planning,
Zoning,
and
Special
Assessment
Legislation,
1929;
Los
Angeles,
California
ZONING
is
a
method
of
procedure
whereby
municipal
corporations
seek
to
control
the
uses
or
the
occu-
pancy
of
land
or
lots
by
restricting
such
land
or
lots
to
certain
enumerated
uses
or
to
certain
types
of
structures.
Apparently,
zoning
permits
as
well
as
prohibits,
but
as
yet
the
permissive
features
of
the
zoning
laws
have
not
been
thoroughly
tested,
and
under
court
decisions
as
they
stand
today,
zoning
legislation
prohibits
certain
types
of
uses
but
does
not
guarantee
that
the
permitted
types
may
be
main-
tained.
Industrial
uses
may
under
certain
conditions
be
destroyed
by
in-
junctive
processes,
even
though
per-
mitted
by
zoning
under
the
police
power
regulations.
PURPOSE
OF
ZONING
The
design
of
our
zoning
laws
has
been
to
restrict
the
use
of
certain
prop-
erty,
and
thus
to
guarantee
to
the
home
owner
that
the
area
in
which
his
home
is
located
shall
not
be
subjected
to
uses
which
might
have
a
tendency
to
destroy
the
area
for
home
purposes;
and
likewise
to
protect
the
business
man
from
industrial
intrusion
which
might
destroy
the
area
in
question
for
business
purposes.
As
yet,
however,
the
laws
have
not
protected
the
less
desirable
use
against
attack
by
the
home
owner
or
the
business
man
when
he
seeks
to
restrain
the
less
desirable
use,
claiming
it
a
nuisance.’
Comprehensive
zoning,
when
de-
veloped
to
its
fullest
extent,
will
so
dis-
trict
a
city
that
each
use
of
land
incident
to
the
needs
of
that
city
will
find
an
area
set
aside
for
its
occupancy.
Each
use
will
be
fully
protected,
and
the
industrialist
as
well
as
the
home
owner
will
find
in
the
zones
set
aside
for
the
common
good
of
all,
a
protection
for
the
uses
permitted
in
those
zones.
This
is
the
ideal
of
the
well-rounded
zoning
theory.
We
have
come
a
long
way,
but
much,
in
theory
and
in
prac-
tice,
is
yet
to
be
learned.
Zoning
is
an
outgrowth
of
an
attempt
on
the
part
of
municipal
authorities
to
prevent
uses
which,
while
in
themselves
not
nuisances,
might
be
nuisances
if
located
in
congested
areas or
in
areas
where
home
or
business
development
was
in
progress.
Its
development
has
touched
many
phases
of
urban
life
and
has
influenced
the
social,
civic,
busi-
ness,
and
sociological
life
of
each
city.
Zoning
legislation
looks
for
its
justifica-
tion
and
support
to
the
principles
of
the
police
power,
under
which
a
legislative
body
is
permitted
to
enforce
such
reasonable
legislation
as
is
necessary
to
protect
the
health,
the
morals,
the
pub-
lic
safety,
and
the
general
welfare
of
the
community.2
The
courts
have
gone
far in
sustain-
ing
the
right
of
the
legislative
body
to
protect
its
citizenry
from
annoyance
and
injury;
and
in
applying
that
pro-
tection
to
the
field
of
zoning,
they
have
greatly
broadened
and
extended
the
scope
of
police
power
regulation.
Congestion
of
large
numbers
of
peo-
ple
in
restricted
districts
naturally
1
Martin
Building
Co.
v.
Imperial
Laundry
Co.,
124
So.
82;
Fendley
v.
City
of
Anaheim,
294
Pac.
771,
Cal.
case.
2
Ex
Parte,
Quong
Wo,
161
Cal.
220.
16
brings
about
occasion
for
conflict
and
friction,
and
unless
some
regulatory
power
were
present,
peaceable
enjoy-
ment
of property
rights
in
urban
com-
munities
would
not
be
possible.
While
in
the
main
the
courts
have
been
most
liberal
in
upholding
ordi-
nances
prohibiting
or
regulating
uses
which,
while
not
nuisances
per
se,
might
become
such
if
placed
in
congested
areas or
in
residential
districts,
still,
the
courts
have
frequently
halted
the
operation
of
an
ordinance
on
the
ground
that
it
was
an
unreasonable
exercise
of
the
police
power,
and
therefore
void.
But
the
mere
declaration
by
the
city
council
of
Milwaukee
that
a
certain
struc-
ture
was
an
encroachment
or
obstruction
did
not
make
it
so,
nor
could
such
declara-
tion
make
it
a
nuisance
unless
it
in
fact
had
that
character.
It
is
a
doctrine
not
to
be
tolerated
in
this
court,
that
a
municipal
corporation,
without
any
general
laws
either
of
the
city
or
of
the
State,
within
which
a
given
structure
can
be
shown
to
be
a
nuisance,
can,
by
its
mere
declaration
that
it
is
one,
subject
it
to
removal
by
any
person
supposed
to
be
aggrieved,
or
even
by
the
city
itself.
This
would
place
every
house,
every
business,
and
all
property
of
the
city
at
the
uncontrolled
will
of
the
tem-
porary
local
authorities.3
NUISANCE
DECISIONS
Prior
to
the
advent
of
zoning
legisla-
tion,
a
person’s
only
protection
from
injury
by
his
neighbor’s
business
lay
in
the
common
law
nuisance
decisionS,4
under
which
it
was
declared
that
one
must
so
use
his
own
rights
as
not
to
infringe
upon
the
rights
of
another.
One
statement
as
to
nuisance
is:
Anything
which
is
injurious
to
health,
or
is
indecent
or
offensive
to
the
senses,
or
an
obstruction
to
the
free
use
of
property,
so
as
to
interfere
with
the
comfortable
enjoy-
ment
of
life
or
property,
or
unlawfully
ob-
structs
the
free
passage
or
use,
in
the
cus-
tomary
manner,
of
any
navigable
lake,
or
river,
bay,
stream,
canal,
or
basin,
or
any
public
park,
square,
street,
or
highway,
is
a
nuisance.5
Under
the
nuisance
law,
injunctive
relief
might
be
had
which
prevented
the
operation
of
business
uses
which,
while
not
nuisances
in
themselves,
had
become
so
because
they
were
carried
on
in
close
proximity
to
homes,
churches,
schools,
or
other
places
where
large
numbers
of
persons
congregated.
At
first
it
was
necessary
to
prove
actual
damage
before
the
injunction
might
be
invoked
under
the
nuisance
rules;
but
as
the
rights
of
persons
congregating
in
urban
territories
were
better
recog-
nized,
the
courts
began
to
take
a
gradually
broadening
view
of
this
sub-
ject,
and
less
proof
of
damage
was
re-
quired.
In
one
case
where
slight
or
no
damage
was
shown,
damages
were
awarded
and
sustained.
The
court’s
statement
regarding
damage
follows:
There
is
no
proof
that
plaintiff’s
land
has
depreciated;
that
its
rental
value
has
been
impaired;
nor
that
the health
of
Mr.
Jud-
son
or
that
of
any
member
of
his
family
has
been
injuriously
affected
by
the
opera-
tion
of
defendants’
gasworks.
He
did
assert,
however,
that
the
smoke,
odor,
and
noise
produced
by
the
manufacture
of
gas
at
defendants’
works
interfered
with
his
comfortable
enjoyment
of
his
property.
While
unable
to
state
any
exact
amount
of
pecuniary
damage,
Mr.
Judson
testified
that
the
smoke,
odors
and
noise
had
dis-
turbed
him
in
his
occupation
as
an
artist.6
In
deciding
nuisance
cases,
the
courts
frequently
hinted
that
the
dis-
tricting
of
urban
areas
was
necessary.
In
California,
the
judges
who
rendered
nuisance
decisions
from
the
late
seven-
ties
to
the
early
nineties
seemed
to
recognize
that
he
who
comes
to
a
city
must
put
up
with
annoyances
but
that
3
Yates
v.
Milwaukee,
77
U.
S.
497;
Matzen-
baum,
The
Law
of
Zoning,
29.
4
Cal.
Civil
Code
Sec.
3514.
5
Cal.
Civil
Gode
Sec.
3479.
6
Judson
v.
Suburban
Gas
Co.,
157
Cal.
168.
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