Does Zoning Have to Provide a Place for Everything?

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David Owens

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 Folks in the small town of Maycomb are riled up. The state recently funded construction of a new expressway that passes near the town. Most everyone in town likes that, as the new road will cut time off the trip up to Raleigh. What has them riled up is a proposed asphalt plant. A big out-of-town company got the contract for the expressway, along with several other substantial repaving projects in the area. Word has gotten out that they want to build a large new asphalt plant and construction staging yard on a vacant parcel out on the edge of town. The parcel is just outside the city limits, but in the town’s extraterritorial planning area and subject to town zoning. The residents of the neighborhoods around this parcel are aghast at the prospect of all the trucks, noise, odors, and commotion associated with such an operation. A large group of these folks showed up at the town council meeting last night, all wearing big buttons saying “NO ASPHALT PLANT.” The hastily organized group, Citizens for Preservation of Maycomb, presented a petition to the council requesting that the town amend its zoning ordinance to ban asphalt plants throughout the town and its small extraterritorial area. The petition was signed by nearly 1,500 persons, an impressive number considering that the town only has 6,000 residents. When the petition is presented, the Mayor turns to the staff and asks, “Can we even think about doing this?” 

They can. 

Many zoning ordinances were drafted with the maxim in mind, “A place for everything and everything in its place.” Larger municipalities set aside land that would be available for a full range of expected uses – residential, commercial, industrial, institutional, and so forth. A couple of older zoning cases from other states held that it would be inappropriate to totally exclude an otherwise lawful use from the entire jurisdiction. The notion of some place being available for all lawful uses became part of many folks’ understanding of underlying principles of land use law. A place for everything. But is that really legally required?

 North Carolina does not have a case that directly addresses this question. We almost did. In a situation not too far off the example above, the Town of Hillsborough amended its ordinances to ban asphalt plants. The Court of Appeals proposed a rule that if a jurisdiction applies a total ban on an otherwise lawful use, that should remove the legal presumption of validity for the ordinance and the burden should shift to the town to establish that a legitimate public purpose adequately supports the ban. This case presented some complex legal issues regarding a moratorium, vested rights, and the procedures required by the town’s own ordinance to process permit applications. When the case got to the Supreme Court, the court decided the case on those other issues and vacated the portion of the Court of Appeals decision that addressed our question. So our courts have not resolved this question.

 A variety of land uses do have statutory protection that prevents a total exclusion. In North Carolina the legislature has, for example, prohibited a total exclusion of manufactured housing (codifying the holding of Town of Conover v. Jolly, 277 N.C. 439 (1970), a case ruling that the general police power could not be used to ban this use as it was neither a nuisance nor inherently a threat to the public health, safety, or general welfare). Other uses with statutory protection include family care homes in residential districts, facilities with a state ABC license, and bona fide farm uses in county jurisdiction. Federal statutes protect a few uses as well, such as prohibiting a total ban on wireless telecommunication towers. Other uses have constitutional protection. Courts have held, for example, that a total prohibition of non-obscene adult entertainment would violate First Amendment free speech rights. A total exclusion of places of worship would run afoul of First Amendment rights of free exercise of religion, as well as potentially violating federal statutes.

 But if the use in question is not protected by a statute or constitution, can it be excluded? There is no North Carolina or federal statute that says every jurisdiction has to make space for an asphalt plant. Starting a new asphalt plant at a specified site is hardly free speech, the exercise of religion, or some other constitutionally protected right.

 In these instances courts defer to the legislative judgment of elected policy-making officials. The land use regulatory policy choice of whether and where to allow a particular use is presumed by the courts to be valid unless it is arbitrary and capricious. The courts have, for example, routinely upheld decisions by jurisdictions to completely ban off-premise commercial advertising signs. It is important however to consider context – the type of use involved, the scale of its impacts, the size and character of the regulated area, and so forth. If a small, largely residential town excludes a heavy industrial use because there is just no place in the jurisdiction it can fit without substantial harmful impacts on its neighbors, the decision to exclude such uses would not be an arbitrary policy choice. On the other hand, it may indeed be arbitrary for a large city with substantial industrial areas to totally exclude a particular industrial use. So the answer on whether a total exclusion of a particular use is lawful depends on the context and the need to have a plausible, legitimate land use objective supporting the exclusion.

 Total exclusion of a particular land use is a powerful tool that should be applied quite carefully. There is sometimes a temptation to just ban any controversial use. Difficult land uses have always been with us. In the 1950s folks worried about pool halls, bowling alleys, and drive-ins. Today it may be an asphalt plant or an internet sweepstakes gaming room. Before a total ban is adopted, a local government needs to focus on the land use impacts of the use. Those impacts should be identified, alternative measures to prevent those impacts discussed, and the impacts of excluding the use explored. Only then should a potential total ban be considered. If that process of careful consideration is followed, it is likely that in most contexts an appropriately focused exclusion would an option the town could lawfully consider.

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5 Responses to Does Zoning Have to Provide a Place for Everything?

  1. Bill Duston says:

    Thanks, Dave, for addressing a question that I am frequently asked by local officials. Your explanation is quite clear and I am sure will be of use to planners throughout the State.

    Bill

  2. Craig Culberson says:

    Dave,
    Thanks for this update and clarification. You referenced several uses that have various protections. Is there a comprehensive list of the uses that have state, federal or other protection that would prohibit a total ban by a community?

    Craig

    • David Owens says:

      Craig,
      I am not aware of a comprehensive list. If you have a copy of Land Use Law in North Carolina, it has a chapter on state statutory limits on zoning discretion and another on federal statutes. Those provide a fairly comprehensive list. Among the uses addressed in the statutory chapters are: (1) state level — agricultural uses, alcohol sales, family care homes, manufactured housing, government land uses, utility transmission lines, cemeteries, shooting ranges, gun sales, pawnshops, video poker, palmistry, and government flags (and the next edition of the book, now being completed, will add affordable housing, amateur radio antennae, solar collectors, and wireless telecommunication facilities); (2) federal level — fair housing, telecommunication towers, satellite dishes, radio towers, outdoor advertising and junkyards near federal highways.

      In most instances, the protected activity is not entirely exempt from local regulation, but there are limits on what and how much the city or county can do.

      The book also covers the principal constitutional limitations, with particular reference to adult entertainment uses, signs, and religious land uses.

      David

      • Franz Holscher says:

        You mention internet sweepstakes gaming room, but do not discuss it at length. How do you think a complete ban in a small municipality would turn out?

        • David Owens says:

          Franz,
          It is somewhat hard to say, but I would be a bit skeptical that a total ban of this use would withstand judicial review in most jurisdictions.

          The first consideration would be the need to establish a land use rationale for the action. Rather than a concern about the morality of the use, the local government would need to look at things like traffic impacts, parking, noise, hours of operation, impacts on neighboring uses, and the like. While an arbitrary and capricious review is not particularly demanding, it does require some rational relation to a legitimate governmental objective. Simply concluding we don’t like this use, wish the state would outlaw it, and we will ban it in the interim is probably an insufficient rationale for a total ban via a land use regulation. I don’t think these uses have any First Amendment protection as is the case with adult entertainment and religious uses (though I would not be shocked to see a sweepstakes cafe operator claim their internet or phone connections for the games somehow is protected speech). Therefore I don’t think you have to worry about a substantial relation to a compelling governmental interest, adequate alternative avenues for the use, using the least restrictive regulation, or the like. But making a rational tie to a legitimate land use objective is still necessary. I don’t know enough about the land use impacts of these uses to know whether the case for a ban can be made, but from the little I have seen I would be skeptical.

          Perhaps a very small jurisdiction with very limited commercial land area could justify that, but not most jurisdictions. An interesting question, and one I don’t know the answer for, is whether protecting the “character of the community” would be sufficient for a small town or resort community to ban such a use. Perhaps a small beach, mountain, or golf community with limited “family-oriented” commercial uses could argue these sweepstakes cafes, tattoo parlors, bars, and the like are so far out of character with the community that allowing them anywhere would adversely affect tourism, property values in town, and the like. I think such a community could make that case for a ban of heavy industry, but am considerably less sure it could do so for a relatively small commercial use.

          While a total ban may be difficult to justify in most communities, that certainly would not preclude rather stringent regulations to address potential land use impacts. Restrictions to a limited number of zoning districts, parking requirements, sign limits, limits on the number of machines in a facility, separations from sensitive uses, operational restrictions, typical special and conditional use permit reviews – any of these would be a good deal easier to justify than a total ban.

          David

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