Spot zoning occurs when a small area of land or section in an existing neighborhood is singled out and placed in a different zone from that of neighboring property. For example, a park or school might be allowed in a strictly residential area if it serves a useful purpose to the neighborhood residents.
In some areas of the country the courts have found spot zoning illegal on the ground that it is incompatible with the existing land use-zoning plan or in an overall zoning scheme for the community. Whether the exception carved out is reasonable and supported by the facts, often turns on public interest, the effect the spot zoning has on the current uses of neighboring properties, and any ramifications created by the zoning. 1
Most planning commissioners have heard the impassioned cry that a particular rezoning decision will constitute an invalid "spot zoning." This allegation typically arises where the community is considering the rezoning of a single lot or small parcel of property held by a single owner and the rezoning will permit land uses not available to the adjacent property.
Because spot zoning often focuses on the single parcel without considering the broader context, that is, the area and land uses surrounding the parcel, it is commonly considered the antithesis of planned zoning. While rezoning decisions that only affect a single parcel or small amount of land are most often the subject of spot zoning claims (as opposed to rezonings of larger areas), a locality can lawfully rezone a single parcel if its action is shown to be consistent with the community's land use policies. As I will discuss shortly, courts look to the community's comprehensive plan, or to other planning studies, in determining whether the rezoning is, in fact, consistent with local land use policies.
Of course, whether a particular rezoning constitutes an unlawful spot zoning depends largely upon the facts surrounding the zoning decision and upon the judicial decisions of each state. However, courts commonly note that the underlying question is whether the zoning decision advances the health, safety, and welfare of the community. A zoning decision that merely provides for individual benefit without a relationship to public benefit cannot be legally supported. Where a particular zoning decision is not supported by a public purpose, the zoning decision is arbitrary and may be subject to invalidation as unlawful spot zoning.
Although courts throughout the nation differ in their specific approaches when reviewing spot zoning claims, the majority consider:
- the size of the parcel subject to rezoning;
- the zoning both prior to and after the local government's decision;
- the existing zoning and use of the adjacent properties;
- the benefits and detriments to the landowner, neighboring property owners, and the community resulting from the rezoning; and
- the relationship between the zoning change and the local government's stated land use policies and objectives.
This last factor -- the relationship of the rezoning decision to the community's land use policies and objectives -- is perhaps the most important one. As a result, when a planning commission (or governing body) initially considers a rezoning request it should determine whether the request is consistent with the comprehensive or master plan. Many communities' zoning codes also require a separate planning study that examines the merits of the proposed rezoning. This further ensures that any rezoning is consistent with the community's land use objectives, and not a case of spot zoning. The bottom line is that courts will give considerable weight to evidence that the locality's rezoning decision reflects thoughtful consideration of planning factors.
It should be noted that there is one situation where a rezoning decision that does not conform to the comprehensive plan may nevertheless be upheld. That is where there is evidence showing significant changes in the community since the adoption of the plan that would justify a rezoning of the property. This is especially true where a review of other factors, such as benefit to the community and the size of the rezoned parcel, indicate that the rezoning was not merely intended to confer a benefit to the property owner.
DD 2/24 Broad Review of Spot ZoningDaily Development for
Tuesday, February 24, 1998
by: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law
ZONING AND PLANNING; SPOT ZONING: Existence of a formal comprehensive plan is not essential to a finding of spot zoning. Of paramount importance in a spot zoning case is whether the subject property is zoned in conformity with surrounding existing uses and whether those uses are uniform and established.
Bossman v. Village of Riverton, 684 N.E.2d 427 (Ill. App. 4 Dist. 1997).
Residential property owners brought action seeking declaratory judgment that an ordinance rezoning neighboring property as commercial purposes was unconstitutional. The lower court entered summary judgment in favor of the defendant. The proposed use was for a "Casey's General Store," which appears to be a "mini-market," with an ancillary gas station.
In support of the zoning decision, the town and the rezoning proponent demonstrated that there was signficant non-residential activity in the area surrounding the site. A school and church were nearby on the same street, a pre-existing nonconforming restaurant use was nearby, and the municipal water treatment plant - an "industrial eyesore," was across the street. Much of the nearby property was vacant land. The intersection was the busiest in this (admittedly small) hamlet.
The Appellate Court of Illinois reversed and remanded, finding that clear and convincing evidence supported the conclusion that the ordinance reclassifying properties in a residential zone from residential to commercial constituted illegal spot zoning. Even though the area in question was not totally and uniformly residential, there had been no change in the general character or existing uses in the neighborhood. The court noted that not every perceived benefit will justify rezoning, only those benefits that constitute legitimate objectives of zoning. The court held that the control or restriction of competition, which the defendant advanced as a benefit of the rezoning, is not a proper objective of zoning.
Comment 1: Illinois has always been a state that takes very seriously the judicial review of zoning decisions. The "common law of zoning," which basically justifies judicial review of the substance of zoning decisions based upon the redefinition of the police power and delegated legislative authority to zone, has fully flowered in that state. Here the court identifies for itself what it perceives to be the "legitimate objectives of zoning," and defines this zoning decision as outside of those parameters. Here, despite the court's recitation of evidence supporting the treatment of this parcel in a special manner, the court concluded that "clear and convincing evidence" justified overturning the municipality's decision.
Comment 2: One response by the court to the city's argument that various nearby uses were inconsistent with the residential zoning on this parcel was that the city then should rezone the whole area. This, of course, signficantly reduces the ability of a city to make narrowly defined zoning decisions, something that likely would be far more available in other jurisdictions.
Comment 3: The editor lacks the experience to comment upon the validity of the court's position that encouragement of competition is not a valid purpose for zoning. The court cites authority that states that the "control or restriction of competition is not a proper or lawful zoning objective." But here the avowed purpose of the city was not to restrict competition, but to encourage it. The court responds that to permit the location of this gas station so as to compete with another one nearby nevertheless gives this station a privilege denied to others who own property zoned residential. So every act to "promote competition" by altering zoning necessarily, in the view of the court, prefers the given competitor as against others, and thus restricts competition. Both the accuracy and validity of the court's analysis, as well as the general notion that zoning authorities cannot take competitive factors into account, seem worthy of further analysis.
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a. "The test of spot zoning is whether the amendment was made with the purpose of furthering a comprehensive zoning scheme or whether it was designed merely to relieve the land of a restriction which was particularly harsh upon that particular land."
McKenzie v. Shelly, 77 Nev. 237, 243, 362 P.2d 268 (1961). No. 6.
b. "The Board permitted respondents // to do indirectly what they could not accomplish directly, i.e., manufacture concrete and asphalt in a zoning district which expressly forbids manufacturing. Such a decision amounts to spot zoning and provides no deference to the master plan in violation of this court's ruling in Nova Horizon v. City Council, Reno, 105 Nev. 92, 96, 769 P.2d 721, 723 (1989). Therefore, we conclude that the Board erred in granting the variance and that the Board's decision must be overturned."
Enterprise Citizens v. Clark Co. Comm'rs, 112 Nev. 649, 660-661, 918 P.2d 305 (1996).No. 48.
c. "An application for rezoning requires the submission of nine separate reports addressing the impact of the rezoning on the surrounding area. Clark County Code § 29.68.025(E). Additionally, non-conforming use requested, i.e., zone changes, are required to have at least one public hearing before the Board of County Commissioners. Clark County Code § 29.68.030. By cloaking their request for a zone change as one for a variance in conjunction with a conditional use, respondents received three major benefits. First, they were not required to submit the nine impact reports to the Planning Commission and the Board of County Commissioners, thereby lessening their burden of production. Second, they avoided having to request manufacturing zoning from the Planning Commission, which had twice before denied respondents' same request. Third, they avoided the public hearing in front of the Planning Commission which would have exposed their plan to greater scrutiny both by the Planning Commission and by citizens." Id. at p. 660, n. 7. 4
An extract from the Encyclopedia of Real Estate Terms
© 2000 Delta Alpha Publishing
1.(US)The zoning of a small area of land, or one or more properties, for a use that is not in harmony with the normal zoning plan for the area, especially if a small area is rezoned in a way that does not conform with the surrounding neighborhood. Spot zoning is normally invalid if the permitted use is very different from the surrounding area; the area involved is small; or it can be shown that the municipality has favored one landowner to the unreasonable detriment of the surrounding area, or so as to prejudice the intention of a comprehensive plan (Rockhill v. Chesterfield Tp., 23 NJ 117, 128 A.2d 473 (1957); City of Pharr v. Tippitt, 616 SW.2d 173, 177 (Tex 1981); Williams American Land Planning Law and The Police Power (1988 Revision), § 27.02). For example, it may be considered illegal where an area of land is designated for industrial use in an area zoned residential use, even when the intention is to retain a business in a particular municipal district (Fritz v. Ashland, 348 SW.2d 712 (Ky 1961), cf. Kozesnik v. Township of Montgomery, 24 NJ 154, 131 A.2d 1 (1957)). On the other hand, it may be valid if it is made for the benefit of the community at large, as with the rezoning corner properties for commercial use to provide services in a residential district. ‘Spot zoning’ is site specific and does not include a use that is compatible or necessary to the overall zoning, such as a neighborhood shopping center which serves the local residents. cf. floating zone. See also contract zoning, exclusionary zoning, special-use permit, zoning variance.
Anno: 51 ALR2d 263: Spot Zoning.
83 Am.Jur.2d., Zoning and Planning, §§ 146-159.
101A Cor.Jur.Sec., Zoning & Land Planning, § 44.
Anderson’s American Law of Zoning (4th ed. 1996), §§ 5.12-5.22.
R.A. Cunningham et al. The Law of Real Property (2d ed. 1993), pp. 572-575.
D.R. Mandelker. Land Use Law (4th ed. 1997), pp. 237-245.
Rathcopf’s Law of Zoning and Planning, Ch. 26 “Spot Zoning”.
2.(Can)The zoning or rezoning of a particular site for a use that is not in conformity with the general planning for the area (Re Windsor (City) Restricted Area By-law 4887 (1976) 5 OMBR 353, 354-5 (Can); Re Brown and City of Vancouver (1986) 24 DLR (4th) 434, 444, 446 (Can)).