Can the government rezone your property over
your objection? And if it does, can you make the government
pay for it?
These questions are often in the background of public discussions
of various city zoning actions designed to preserve "amenities,"
"open space," "lifestyle," and "neighborhoods."
Threats of legal action are common, and the rhetoric often
escalates. To better understand the legal basis of these discussions,
let's take a look at the legal reality: the law as it actually
Any time property is rezoned over the owner's objection, the
action is subject to three distinct legal challenges: First,
it may be challenged as an invalid exercise of police power.
Second, it may be challenged as an unconstitutional taking
of private property. Third, it may challenged on grounds that
the existing zoning has become vested. Often, these three
issues — although distinct legally — are described
in the public debate simply as a matter of "property
In what is probably the most typical case, the government
will rezone raw land to a less valuable use. For instance,
a city may rezone commercial land to residential, or multi-family
to single family, often to implement its general land use
plan. In other cases, the city may change zoning on developed
land to preserve an existing use. For instance, property used
as a golf course may be rezoned from residential (which usually
permits golf course and other uses) to a category that allows
the property to be used only as a golf course. This prevents
redevelopment and presumably insures that the property will
continue to be used as a golf course.
The zoning of property — or the changing of existing
zoning — is an exercise of the police power. This is
the power possessed by legislative bodies to adopt laws and
regulations governing the actions of its citizens. Any exercise
of the police power restricts the actions of certain people,
and sometimes causes an economic loss. This loss to certain
individuals is said to be justified because of the benefit
to the community in general. The truth is that without a police
power, civilization could scarcely exist.
The courts will rarely invalidate a zoning ordinance on grounds
that it is an invalid exercise of the police power. In order
to do so, they must find that the law or ordinance is not
reasonably designed to promote the public health, safety,
morals or general welfare. In making this determination, the
courts give the broadest latitude to the legislative bodies,
and will rarely second-guess their actions unless it is clear
that the law or ordinance advances no legitimate public purpose.
The courts have often held that zoning intended to enhance
the “quality of life,” is a valid exercise of
police power. In general, it is usually extremely difficult,
perhaps next to impossible, to challenge a zoning case on
the grounds that it is an invalid exercise of the police power.
Both the Federal and the State Constitutions provide that
private property cannot be taken for a public use without
just compensation. The question thus becomes, when does rezoning
amount to a "taking" of property?
The famous Supreme Court Justice Oliver Wendell Holmes set
forth the often-quoted (if rarely helpful) general rule in
a zoning case decided in 1915, when he wrote:
"Government could hardly go on if to some extent values
incident to property could not be diminished without paying
for every such change in the general law.... But...the implied
limitation must have it limits.... When it reaches a certain
magnitude, in most if not all cases there must be an exercise
of eminent domain and compensation."
In the years since that decision, the courts have gradually
developed a body of law to determine the limits of the zoning
power. If a zoning ordinance goes "too far", the
law requires compensation for the property owner. Contrary
to the popular opinion, zoning does not go too far simply
because it causes a loss. Thus, commercial property can be
rezoned to low density residential, regardless of the fact
that the property owner may suffer a huge financial loss.
Similarly, property being operated as a proprietary golf course
clearly may be rezoned in a manner that will permit only that
Zoning goes too far — and amounts to a confiscation
of private property that must be paid for — only when
the zoning precludes any reasonable use. This means that property
cannot be rezoned as open space, or as a public park, or as
a protected wetland, unless the government is willing to pay
the owner the fair market value of the property.
Sometimes a city will grant a property owner a "density
transfer" in connection with the rezoning of his property.
Some courts have held that this is not sufficient, even if
the value of the density transfer is equal to the value lost
by the rezoning. The Constitution requires that condemned
property be paid for in cash, not development rights or density
The third challenge a property owner may mount against a rezoning
is to claim that his existing zoning has “vested.”
This is not a constitutional argument at all--it is merely
an issue of estoppel. It is based on the theory that at some
point, after a property owner has acted in reliance on existing
zoning, he is entitled to prevent the government from changing
it. It is a principle based on fairness and equity, not constitutional
This issue is treated somewhat differently in different states.
However, in most states, zoning is not considered vested until
the property owner has (1) obtained a valid building or similar
permit for his intended development, and (2) has undertaken
substantial physical construction on the site or has incurred
substantial expenditures in preparation for construction.
The determining factor is the activity that has actually occurred
at the time of the rezoning, not the owner's plans for the
future. Clearly, the mere purchase of a parcel of property,
even if the purchase price reflects the value of the current
zoning, is not enough to vest zoning and prevent it from being
In all but the most rare cases, it is impossible to mount
a successful legal challenge to a rezoning. To rezone or not
to rezone is a political issue. High-profile zoning cases
are fought out among those with vested interests ostensibly
based on arguments of private fairness and public good. The
reality, however, is that they are often decided by elected
officials not unmindful of the political consequences of their
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