Recognizing the Limits of Public Regulation

• Author: Alan R. Romero
• Profession: Professor of law and Director of the Rural Law Center at the University of Wyoming College of Law
• Pages: 113-130

Chapter 8

Recognizing the Limits of

Public Regulation

In This Chapter

▶ Understanding common state statutory limitations on local zoning ordinances

▶ Applying the substantive due process doctrine to land use regulation

▶ Determining when land use regulations take property and require just compensation

▶ Considering how the Equal Protection Clause limits public regulation

▶ Regulating signs and other land uses related to free speech

E

ven though governments can adjust private property rights to serve

public purposes, the power to regulate land use isn’t unlimited. In

other words, the government can’t just do whatever it wants. Both statutes

and constitutions limit the government’s power to regulate land use. So if

you want to know what a property owner can do with her property, it isn’t

enough to know what the local zoning ordinance allows and prohibits. You

also have to consider whether that local ordinance is valid and enforceable.

That’s what this chapter is about. It fills you in on the most important

statutory and constitutional limitations on zoning regulations.

Looking for the Local Power Source:

State Enabling Statutes

States generally delegate the authority to regulate land use to cities and

counties through state statutes called enabling acts. Because the state

enabling act is the source of local power to zone or otherwise regulate land

use, a local government can exercise that power only as authorized by the

state enabling act. If some part of the local zoning ordinance conflicts with the

state enabling act in some way, that part of the local ordinance is invalid. In

this way, the state enabling act limits local zoning authority.

114 Part II: Understanding Real Property Rights

Most state constitutions give cities, and maybe counties, too, the power to

exercise home rule. That generally means that a city can adopt a charter

specifying local authority it can exercise without specific state authorization. If

a city exercises home rule power to zone, it may not have to comply with the

state enabling act. But even then, some states with home rule provisions say

that because land-use regulation is a matter of state as well as local concern,

the local zoning still must comply with requirements of the state enabling act.

All 50 states have zoning enabling acts that authorize local governments to

zone. These state enabling acts can differ, of course. But almost all these acts

are based on the Standard State Zoning Enabling Act, published by the

U.S. Department of Commerce in the 1920s, and therefore share some basic

elements:

✓ Types of restrictions: In the words of the Standard State Zoning Enabling

Act, a zoning ordinance may “regulate and restrict the height, number of

stories, and size of buildings and other structures, the percentage of lot

that may be occupied, the size of yards, courts and other open spaces,

the density of population, and the location and use of buildings, structures

and land for trade, industry, residences or other purposes.”

✓ Uniformity within districts: The standard act says that zoning regulations

“shall be uniform for each class or kind of buildings throughout each

district, but the regulations in one district may differ from those in other

districts.”

✓ Purposes: Section 3 of the Standard State Zoning Enabling Act lists the

permissible purposes of zoning ordinances, which include specific

purposes such as lessening street congestion and avoiding overcrowding

as well as the broad purpose of promoting “health and general welfare.”

✓ Power to grant variances: If the locality chooses, the local ordinance

may provide for a board of adjustment. If so, the enabling act specifies

the board of adjustment’s powers, including the criteria for granting a

variance from requirements of the zoning ordinance.

✓ Consistency with a comprehensive plan: The Standard State Zoning

Enabling Act says the local ordinance must be “made in accordance with

a comprehensive plan.” In most states, this doesn’t mean the locality

must actually adopt a document called a “comprehensive plan”; it just

means that the regulation must be a rational and comprehensive way

to regulate land use for the benefit of the public. But in some states,

the local government does have to adopt a comprehensive plan for the

community before it can zone. And in some states, the zoning ordinance

must comply with the comprehensive plan or at least be in basic harmony

with it. Chapter 7 talks more about zoning in accordance with a

comprehensive plan.