Land Use and the Law: Reasonableness of Zoning
The purpose of zoning is to improve a community through land use planning and control of land development. The goal is to confine certain uses to designated areas without imposing undue burdens on individual property owners. The public interest in regulating land development for the benefit of the community is balanced against the private interest in individual freedom to use property for whatever purposes desired. Huttig v. City of Richmond Heights, 372 S.W.2d 833, 842 (Mo. 1963). Zoning adversely affects individual property rights, limiting development of even those uses that are not intrinsically offensive or harmful. Nevertheless, zoning is generally recognized as a valid exercise of "police power" for the "general welfare" of the community, and property owners are not entitled to compensation or other relief from the impact of zoning on the use and enjoyment of their property.
When does a zoning regulation go too far? Particular zoning regulations may be deemed a "taking" requiring "just compensation" under the Fifth and Fourteenth Amendments to the U.S. Constitution, or may be declared invalid, where they go beyond the enabling statutory authority, in Missouri the Zoning Enabling Act, §§ 89.010, R.S.Mo. et seq. (2000, as amended), where they cannot be shown to promote the general welfare, where they exceed what is reasonably necessary to do so, or where they deprive the property owner of all beneficial use of his property. If a zoning regulation goes too far as it relates to particular property, the government may in some cases condemn the property under its power of eminent domain and pay "just compensation" to the affected property owner, or the property owner may file a lawsuit seeking to have the existing zoning classification of property declared invalid.
When zoning as applied to particular property is challenged in court, there are two Missouri Supreme Court cases on zoning that are often quoted, Vatterott v. City of Florissant and Huttig v. City of Richmond Heights. However, in my opinion the analysis in decisions written by Judge Harold Satz (deceased for more than a decade now) in three cases decided by the Missouri Court of Appeals for the Eastern District are instructive on the methodology to be applied in zoning cases: Hoffman v. City of Town and Country (decided in 1992); Elam v. City of St. Ann (decided in 1990); and Loomstein v. St. Louis County (decided in 1980). While there are many other zoning decisions in the Missouri Court of Appeals for the Eastern District, and the analysis appears very complicated, the decisions reflect a common rule of real estate: Location. Location. Location. What is the surrounding land use and development? Is the property reasonably adapted to permitted uses allowed under existing zoning? There is often a “battle of experts” developed in the record before reviewing courts. E.g., Huttig, 372 S.W.2d at 836.
The local government's legislative judgment in applying a zoning classification to a particular parcel should be presumed valid. Vatterott v. City of Florissant, 462 S.W.2d 711, 713 (Mo. 1971); Hoffman v. City of Town and Country, 831 S.W.2d 223, 229 (Mo.App.ED 1992). Reviewing courts are to defer to a city’s zoning classification. If the benefit to the general public benefit of an existing zoning classification outweighs the private detriment, a city’s zoning classification is to be upheld by reviewing courts. See, e.g., Loomstein v. St. Louis County, 609 S.W.2d 443, 447 (Mo.App.ED 1980). Only where the private detriment to the property owner so grossly outweighs any public benefit, is the city’s existing zoning declared “arbitrary and unreasonable”. Factors relevant to a determination of private detriment include the adaptability of the property to uses permitted by the existing zoning, and the effect of existing zoning on property value. The property owner must prove the property cannot feasibly be developed for any uses permitted within the zoning district. This usually involves an economic analysis of the cost of developing the property for uses permitted by the existing zoning, and of the market value of the property. It is not sufficient for the property owner to establish that the existing zoning does not allow for the "highest and best", or a more commercially valuable, use of the property. While local governments all too often become embroiled in a battle among experts, such evidence of private detriment is best refuted by showing that surrounding or similar properties under the same zoning classification are being used.
If the presumption of validity is overcome in a particular case, then the reviewing court in that case is to decide whether the zoning of a particular parcel is "fairly debatable". If the propriety of an existing zoning classification is “fairly debatable”, the courts should defer to the local government's legislative decision and uphold the zoning. In other words, in order for a property owner to rebut the presumption favoring existing zoning, that property owner must prove that the unreasonableness of the zoning is not even "fairly debatable". See e.g., Hoffman v. City of Town and Country, 831 S.W.2d at 228-229; Elam v. City of St. Ann, 784 S.W.2d 330 (Mo.App. 1990). I have observed that the factors relating to the first prong of the decision overlap with the “fairly debatable” prong. Indeed, in Judge Satz’s decision in the Hoffman case, Judge Satz said the ONLY issue to be reviewed in that case was whether the city’s decision to deny a rezoning petition by the property owner was “fairly debatable”. Hoffman, 831 S.W.2d at 228. Frankly, I am unsure of whether Judge Satz’s decisions from the Loomstein case in 1980 to the Hoffman case in 1992 reflect his own evolution of analysis, or whether the facts and circumstances of those cases impel differing results. In the Loomstein and Hoffman cases, the court determined respectively that the city’s existing zoning classification was unconstitutional. In the Elam case, decided by the Missouri Court of Appeals in 1990, the court upheld St. Ann’s decision to rezone property from a commercial zoning classification to a residential classification.
In summary, although the legal analysis in various court decisions is very complicated, in my opinion, as a practical matter whether a particular city’s particular zoning decision is upheld by a reviewing court distills down to a simple and stark reality: where is the property located and what are the surrounding land uses? Location. Location. Location.
Mary B. Schultz is a partner in the law firm of Schultz &Associates LLP, www.sl-lawyers.com, 640 Cepi Dr., Suite A; Chesterfield (St. Louis), Missouri 63005, (636) 537-4645. Mary B. Schultz graduated from Northwestern University Law School more than 30 years ago, in 1985, and has been practicing primarily in Missouri ever since. Mary B. Schultz is admitted to practice in Missouri and Illinois. Schultz & Associates LLP is an affiliate member of the Municipal League of Metropolitan St. Louis.
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