Monday, February 8, 2016

Zoning’s Centennial, Part 5: The Most Appropriate Use of Land: A Series by John R. Nolon

Part 5

Zoning’s Centennial

John R. Nolon

Distinguished Professor of Law, Pace Law School

Counsel, Land Use Law Center

The Most Appropriate Use of the Land

Immediately after WWII, Euclidian Zoning was not working for the Village of Tarrytown, NY. The Village needed workers to attract employers to build its tax base. For political and economic reasons, it decided not to zone large areas for multi-family housing.  Instead, in 1947, the Village board of trustees created a floating garden apartment zone, which allowed landowners who owned ten acres of land or more to apply for the floating zone to alight on their property; a unique two-step process that was clearly not within the specific delegated power of the Village under the state zoning enabling act. The foundation for this creative zoning technique was laid in the Village’s comprehensive plan, which identified the need for affordable housing and an effective means to provide it. The Village knew that a straightforward rezoning of land to multi-family use would greatly increase its value and adversely affect the desired affordability.

In Rodgers v. Tarrytown (1951), the plaintiff, who owned six acres nearby, pointed out that nothing in New York’s zoning enabling act expressly authorized the Village to first create a multi-family zoning district and then, later, apply it to a parcel in a single-family district after consideration of an application made by the parcel’s owner. In the view of the Euclidians, zoning districts were to be changed by amendments to the zoning map, adopted at the same time as the provisions regulating land uses were changed.

The state’s highest court disagreed with the plaintiff, and broadly interpreted the creative authority of local governments. The court noted that “zoning is by no means static….[c]hanged or changing conditions call for changed plans….”  And, further, “The village’s zoning aim being clear, the choice of methods to accomplish it lay with the board.” With these words, the Neo-Euclidian period began.

The dissent in Rodgers spoke for the conservative interpretation of the enabling act. It argued that “the device…most assuredly is not ‘zoning.’” It feared that upholding floating zoning could “well prove to be the opening wedge in the destruction of effective and efficient zoning in this State.” The dissent called this an ultra vires act, one that created a nonconforming use in an established zone for the benefit of the owner of a single parcel  (also known as “spot” zoning), or gave the legislature the power to grant variances, a power reserved to the zoning board of appeals. Under either interpretation, the dissent believed that the creation of a floating zone was not within the delegated authority of the board of trustees.

The rationale of the majority in Rodgers was on sound footing. The Standard Zoning Enabling Act, which was adopted nearly in its entirety by the New York legislature, contains this provision: “Such [zoning] regulations shall be made…with a view to conserving the value of buildings and encouraging the most appropriate use of land throughout the community.”  This language was included in most of the zoning enabling acts adopted by state legislatures throughout the country.

If floating zoning was not zoning, in the dissent’s view, what was it?  Perhaps this 1951 case sufficiently broadened the term zoning so that, over time, it became land use law.  Today, we use land use law, including floating zones and its many siblings, to create sustainable neighborhoods, permit community solar facilities, and promote mixed-use developments oriented to transit. Beyond this first flexible tool, the courts and legislatures have added many more to the land use toolbox: special use permits, overlay zoning, planned unit development districts, receiving and sending zones for the transfer of development rights, growth control ordinances, density bonuses in exchange for affordable housing, and a host of additional Neo-Euclidian devices.

As this century progresses, land use law is becoming an essential strategy for mitigating and adapting to climate change. By properly shaping settlement patterns, it can greatly decrease per capita carbon emissions, water use, energy consumption, and impervious coverage, which causes flooding. Today, lawyers practice land use law - not zoning - thanks, in part, to the Rodgers holding and similar decisions in other states. Students go far beyond memorizing and applying the holding in Euclid and now study dozens of land use techniques. The practice of land use law today focuses on shaping settlement patterns to achieve “the most appropriate use of the land” in an era fraught with frightful challenges.

For more information, see John R. Nolon, The Law of Sustainable Development: Keeping Pace, 30 Pace L. Rev. 1246 (2010).  

Links to previous posts in the Zoning Centennial’s Series:

Part 1: The Need for Public Regulation of Land Use – The First Comprehensive Zoning Law

Part 2:  The Delegation of Legal Authority To Adopt Zoning

 Part 3: Zoning Was Contagious, But Was It Constitutional?

Part 4: The Unintended Consequences of Euclidean Zoning

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I as unaware of Rogers v. Tarrytown. A very interesting discussion. Thanks John.

Posted by: Jay Carlisle | Feb 15, 2016 8:44:18 AM