The Zoning Game in Ten Easy Lessons

by David S. Silverman

Zoning is one of those legal concepts that is often studied, but least understood. This dichotomy stems from the nature of property rights in our national conscience and the high value that our economic system places on them. Therefore, it may strike some as odd that the free use of land in our nation is regulated in so many ways. Among them are federal and state environmental laws, federally and state designated open space and natural resource areas, standardized building codes, regional strategic growth strategies, subdivision requirements, and zoning.

It is zoning, above all other land use controls, that impacts our ability to utilize our land as we want, when we want. Zoning is, by and large, a locally controlled process which tells us what can and can't be done with a piece of property. This chapter will provide a plain English overview of 10 things everyone should know about zoning. Why, for example, can't one develop a 40-story office building next to a single family home? You might be able to do this in Houston, which has no zoning ordinance, but that is a different story altogether.

1. What is Zoning, Really?
Zoning is simply a land use regulation system that allows certain types of activities to occur in defined areas within a municipality or county, and in more limited instances, townships (the three units of local government that have zoning power under Illinois law.) Zoning also creates so-called "bulk standards" that are designed to create the desired aesthetic for a given area of a community, and to provide that a property is not overwhelmed with buildings, driveways, and related structures. In the process, bulk standards create distance between buildings to provide for yards and avoid overcrowding. The number and nature of zoning districts in a community is only limited by imagination and the land use policies and objectives of that community.

Illinois municipalities that choose to regulate zoning are required to maintain an up-to-date official zoning map that must be adopted no later than March 31st of each year. The official zoning map details the municipality's zoning districts which typically are shown using a standard color coding system. On the official zoning map, a property owner should be able to determine which zoning district his or her property is in and which zoning regulations apply to that property.

2. OK, So What is This Comprehensive Plan All About? Isn't it Just Another Way to Zone?
Not exactly. A comprehensive plan is related to zoning only to the extent that it establishes the land use policies, goals, and objectives of a municipality, often projecting into the future as far as 25 years. The zoning ordinance regulations are then prepared to carry out those land use goals and objectives. The comprehensive plan, by itself, is not a regulatory document but a planning document that establishes the basis and rationale for zoning regulations.

A comprehensive plan includes a land use map that is not the same as an official zoning map even though it may look similar. Using the same color codes, the land use map is a future image of land use patterns in the municipality and, in some instances, may vary from what is shown on the municipality's official zoning map. These differences often needlessly alarm property owners. It is important to keep in mind that what is on the annually published zoning map is what is allowed today, and what is on the comprehensive plan land use map is what the zoning or allowed uses may be changed to in the future. Comprehensive plans will typically identify areas of a municipality that it would like to see redevelop in a way that may be different from how it is currently used or zoned. An example of this distinction might be a deteriorated single-family residentially-zoned area on the edge of a commercial district which a comprehensive plan may show as multi-family/commercial.

3. I'm in What District? What Do You Mean I Can't Open a Tavern in This R-1 District? You're Taking Away My Property Rights!
At many public hearings people have been heard to express disapproval of a municipality's land use decision in a particular matter because "it takes away my property rights and I should be able to do what I want with my land!" Unfortunately, for people with these views, when used properly, zoning is a legally well tested local regulatory process that was first approved by the United States Supreme Court in 1926 when it upheld the constitutionality of Euclid, Ohio's zoning ordinance.1

Zoning cases at both the state and federal levels have evolved since the landmark Euclid case, but it can be safely stated that unless a zoning law is functionally equivalent to an actual government appropriation of land, the zoning laws will not create a "regulatory taking", also known as inverse condemnation.2 After a false step in this direction which seemed to limit zoning powers, the courts have retreated to a more governmentally friendly stance. Also, in order to successfully claim a regulatory taking, a property owner has to show that the zoning regulation adversely affects the entire parcel of land in question and not some sub-area of the parcel.3

4. Well, if I Can't Do What I Want When I Want, What Advantage Do I Get From This Zoning Stuff?
Plenty. Zoning creates the aesthetic and environmental character that property owners find most appealing about their neighborhoods. If someone purchases a home in a low density neighborhood where the homes are on one-acre lots, the expectation of the property owner is that this aesthetic will be preserved. The legislative basis for zoning in the Illinois statutes says that, among other things, zoning may be used to ensure adequate light, pure air, and safety from fire and other dangers, promote the taxable value of land and buildings, limit congestion on public right-of-way, protect property from excessive storm water runoff, preserve sites of historic, aesthetic, and architectural importance, as well as generally ensuring for the public health, safety, and welfare.4 The power to zone, as can be seen, involves many interrelated goals and is one of the most common ways in which citizens interact with their local government.

5. So, This Zoning Stuff...What...is it Divinely Given? Sure Seems All Encompassing
While not divinely given or all encompassing, zoning is an extensive grant of authority to local governments from the state. In 1921, five years before the Euclid decision, then Commerce Secretary (and future President) Herbert Hoover set out to establish a model zoning enabling act that could be used by the states to grant zoning authority to local governments. Many states had already adopted enabling statutes (so called because they enable lower levels of government to regulate in some area), but they were inconsistently drafted, raising the prospect for inconsistent legal development of zoning and property rights across the country, as well as the granting of too much or too little power to effectively facilitate the goals Hoover hoped to achieve to promote planning across the country. His interest in planning stemmed from his two-fold interest in improving the nations' housing stock and promoting commercial and industrial land development to drive economic development. The Standard State Zoning Enabling Act (SSZEA) was issued by the Department of Commerce in 19265 and was adopted by a majority of the states within five years.

6. Fine...So There is Plenty of Authority From on High, But What's This Business About Permitted and Specially Permitted Uses? And What About This Cumulative Zoning Stuff?
Zoning ordinances list those uses that the municipality believes should be permitted, also known as "by right", in a zoning district and those uses that should be specially permitted in a district. Take a hypothetical R-1 zoning district that in many communities is the lowest density residential district and often the most restrictive in terms of allowed uses and "bulk requirements". If you want to build a single-family house and your project meets all of the bulk requirements, then in an R-1 district you, by right, can simply apply for your building permit - which must comply with the building codes - and be on your way.6 Taking this same hypothetical R-1 district, there are other uses that, while not similar to the predominant permitted uses, complement them, but are of a nature that special conditions should attach to ensure that these "special uses"7 integrate smoothly into an existing neighborhood context. A good example is a library.

Libraries are wonderful complementary uses to residential areas, and convenient access is appreciated by patrons. Still, libraries aren't exactly residential in nature, structure, or operation. In our R-1 district example, the municipality has determined that libraries should be allowed in the R-1 district, subject to certain bulk requirements, and by way of a "special use permit" that enables the library to maintain and operate its building in the R-1 district. By making libraries special uses, the municipality can place certain conditions on the site plan and operations of the library to ensure it doesn't conflict with the predominant residential uses in its vicinity.

Conditions on special uses can run the gamut, and may include landscape buffering to shield the use from other surrounding uses, or time limits on hours of operation or exterior security lighting. In addition, some special use conditions need to be reexamined after a period of time to ensure that they are operating properly to address some issue, and municipalities sometimes place a time limit on how long the special use permit will be valid. Upon expiration of the special use permit, our hypothetical library would have to reappear before the municipality to examine whether the conditions are operating as designed, or whether they need to be modified to address any problems of compatibility that are present between the library and the nearby residential uses.

Cumulative zoning is simply the concept that each successive district in a given category of zoning districts (i.e. residential, commercial, industrial, etc.) permits or specially permits the uses from the previous district. So, if the R-1 district allows single- family detached dwellings as permitted uses and libraries as specially permitted uses, as well as some other uses, those uses can also be listed, permitted or specially permitted in the R-2 district and so on. Some zoning ordinances do not use cumulative zoning, especially in commercial or industrial districts.

7. Fine, But I Think This Limited-Use Zoning District Stuff Saps Creativity...There Has To Be a Better Way, Right?
This is a common complaint of both of developers and municipal officials. However, planners created a useful way to deal with complex developments that would otherwise be prohibited under traditional zoning. The planned unit development (PUD) or planned development gives developers and municipalities a flexible way to achieve important land use policy goals and objectives while allowing a developer significant flexibility to produce an interesting development, often with different land uses, densities, and features not otherwise provided in the base zoning district. The flip side of a planned development, at least for developers, is that it is also among the most procedurally complex ways to get zoning approval. The goal for the municipality is to use a well managed process that ensures for an optimal development. Planned developments are typically special uses in most zoning districts and are granted by a special use permit and they often can only be applied for on larger parcels of land. Typically, the only bulk regulations that apply are the required side yards relating to compatibility with adjoining properties. That means the multiple buildings usually found within a PUD can be placed in a variety of ways subject to a test of compliance with "good planning standards." In most communities, planned development ordinances place a premium on open space and preservation of natural areas through the allowance of higher densities and creative planning.

The planned unit development is the most common flexible zoning tool available, but the planning profession continues to evolve and create new zoning methods to enhance creativity and promote good planning principles and design. Among other methods are overlay or floating zoning districts that superimpose additional requirements in specific areas of a municipality to promote specific planning and development objectives, performance zoning which establishes performance requirements for certain types of uses or districts, and form based zoning that regulate the form of development desired in a certain areas of the municipality, as opposed to the organization of land uses. Special uses, including planned developments, can only be granted after there has been a public notice published and a public hearing held.

8. I'm Looking Through This Zoning Ordinance and There are a Bunch of Words and Phrases That Make No Sense. I Mean, What is "Floor Area Ratio," Anyway?
Floor area ratio is simply the ratio established by taking the net or gross floor area of a structure and dividing that by the area of the zoning lot. Thus the FAR of a 4000 square foot home on a 40,000 square foot lot is 0.1. Make sense? Zoning, like almost any specialized area has its own language and zoning ordinances almost always have a definitions section for all technical words, terms and phrases. The definitions section is very important, because words, terms or phrases that may seem common or straight forward could be defined in a way that differs from your understanding. The definitions section should be carefully reviewed when analyzing bulk regulations to understand how the allowable dimensions regulating the bulk on a property or between properties are calculated. In addition, certain permitted or specially permitted uses are defined and it is important to understand whether a proposed use is defined in a manner consistent with what is being proposed to ensure that it is allowed in a given zoning district.

9. Fine, I Think I Understand When I am Supposed to Get a Special Use Permit, or Whatever That Thing is, but What About a Variation, Map Amendment, or Text Amendment? When do I Need One of Those?
In order for zoning ordinances to be administered in a way that promotes fairness, and provide an opportunity for property owners to maximize the value of their land in light of applicable zoning regulations, there has to be administrative relief mechanisms. Each of the words and terms used above is a form of zoning relief that enables property owners to do something with their property not otherwise allowed under a strict reading of applicable zoning regulations. The kinds of zoning relief mentioned above, like special uses, can only be granted after a public hearing before a zoning board of appeals or a plan commission. Relief or change can only be granted after specified objective findings of fact are made by the zoning board of appeals or plan commission. Variations are exclusively heard by zoning boards of appeals and plan commissions usually conduct the public hearings for special use permits, and map and text amendments. In most municipalities, zoning relief is granted by an ordinance adopted by municipal corporate authorities. The following is a quick synopsis of these forms of zoning relief:
  • Variations are an administrative way to relax applicable bulk regulations (e.g. height, set back, floor area ratio, lot coverage, etc.) Often, strict application of zoning regulations create practical difficulties and particular hardships on a property owner trying to improve their land. A variation can be granted by the municipality that relaxes one or more of the regulations, thereby allowing the property owner to do something with his land that otherwise would be prohibited. In a few municipalities the Zoning Board of Appeals is given the power to grant variances. However, in most municipalities all final zoning changes are left up to the corporate authorities. Many municipalities place limits on how much variation relief can be granted, so it is a good idea to check the requirements for variations to make sure a requested variation does not exceed allowable limits.8
  • Map amendments are also referred to as rezoning and do exactly as the words imply: change the zoning designation of a particular parcel or parcels of land. Rezoning can result in either "down zoning" that lowers the permitted or specially permitted intensity of uses and increases the bulk regulations, or "up zoning" that increases the permitted or specially permitted intensity of uses and lowers the bulk regulations. Under Illinois law, a property owner who wants to put his land to a use not otherwise permitted or specially permitted in the district must seek a rezoning that changes the zoning of the land to a district that permits such a use. Local officials should not grant map amendments that are substantially different than surrounding zoning districts or that will disrupt or alter development patterns in a neighborhood or municipal-wide.9 If a property is zoned in a manner significantly different from adjacent and nearby properties on a zoning map it is called "spot zoning" which is an impermissible exercise of zoning authority.10
  • Text amendments change the text of a zoning ordinance. Usually, text amendments are initiated by the municipality, but there are instances when a property owner seeks to develop a project that is not accommodated either in the applicable zoning district or in any portion of the zoning ordinance. Text amendments can range from simple adjustments of language or wholesale revisions or additions to the text of the ordinance. Local officials will usually avoid text amendments that make changes to zoning regulations that could result in significant changes to existing neighborhood or municipal-wide development patterns.
10. Geez...There Sure is a Lot to Know About Zoning. If I Am a Municipal Official, How Can I Make the Zoning Process Easier to Understand and Orderly? It Seems That Without a Lot of Guidance, the Zoning Process Can Really Breakdown.
Good point. The zoning process begins with your zoning ordinance. The best ordinances are those that are readily understandable to most people. Not only should the terms be clear, but the ordinance should be organized in a logical manner that makes sense to the average person. The best ordinances are also those properly scaled to the municipality. In other words, the best zoning ordinances will relate to the land use realities of a community and be based upon the land use goals and objectives of the municipality as established in its comprehensive plan. Too often, municipalities simply borrow regulations that "look good" from other municipalities, without considering whether those regulations have any relation to actual land use conditions in their own municipality.

A second important way that the zoning process can be easier to understand and use is through good application materials. Some of the best application materials are those that are designed for a particular form of zoning relief and include information on the steps involved in the process to get approval for that form of relief. The application forms should specify, aside from the basic information, the required submittals, numbers of copies, and standards that must be shown for granting relief. The application materials should be designed to enable easy staff administration of the application, including internal and preliminary review, distribution to zoning board or plan commission members, and preparation of staff reports for the zoning board or plan commission.

Third, municipalities should get in the habit of preparing staff reports for the benefit of the Plan Commission and Zoning Board. The reports should summarize the application and proposed development, include an analysis of surrounding land uses. The report should set forth the staff's response to the request submitted by the applicant. In addition, staff should, after the recommendation of the Plan Commission or Zoning Board, submit a report to the corporate authorities with a proposed ordinance. If the request is for a special use, plan development, or variance, the proposed ordinance can contain conditions.

At the zoning board or plan commission, the public hearings should be conducted following this general order:
  • Identification of applicant and witnesses on behalf of applicant
  • Submittal of proof of notice
  • Report by staff, if any
  • Presentation by applicant
  • Zoning board or plan commission examination of applicant and applicant's witnesses
  • Comments and questions by the public about applicant's presentation
  • Testimony and other evidence by public
  • Zoning board or plan commission examination of public
  • Cross-examination of public by applicant
  • Summary by applicant
  • Deliberations and recommendations of zoning board or plan commission
It is useful to have staff at public hearings, including the municipal planner, the municipal engineer, the municipal attorney, and other staff as appropriate, to answer technical and possible legal questions that may arise in connection with an application. Our website, www.ancelglink.com, has a number of pamphlets which can be downloaded free of charge that deal with issues related to this Chapter. See the Introduction, p. 2, for a list of those pamphlets.

1 Village of Euclid v. Ambler Realty, 272 U.S. 365 (1926).
2 See Pennsylvania Coal Co. v. McMahon, 341 U.S. 393, Loretto v. Teleprompter Manhattan CATV Corp, 458 U.S. 419, Lucas v. South Carolina Coastal Council, 505 U.S. 1003, Penn Central Transportation Co. v. New York City, 438 U.S. 104, and Lingle v. Chevron, 544 U.S. 548.
3 This is also known as the "whole parcel" rule. See the U.S. Supreme Court's own philosophical battle over this rule in Palazzolo v. Rhode Island, 533 U.S. 606 (2001), and Tahoe-Sierra Preservation Council v. Tahoe Regional Planning Agency, 535 U.S. 302 (2002).
4 65 ILCS 5/11-13-1
5 A copy of the SSZEA can be read here: http://www.planning.org/growingsmart/enablingacts.htm
6 This of course assumes too that you don't need any subdivision relief, but that is another matter in its own right.
7 Special uses are sometimes called "conditional uses."
8 See 65 ILCS 5/11-13-4 and 65 ILCS 5/11-13-5. As an example, a zoning ordinance may have a provision that allows reduction of rear yard requirements, but not exceeding 10% of the required rear yard. If an applicant lives in a district that requires a 35-foot rear yard, the applicant cannot seek a variation in excess of 3.5-feet.
9 See 65 ILCS 5/11-13-14.
10 See Thornber v. Village of North Barrington, 321 Ill.App.3d 747 (2d Dist. 2001) for a good discussion on spot zoning.

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