Zoning ordinances govern land use within cities and counties. Zoning and land use laws categorize and divide diverse land uses into districts within a city or county. Land use laws and regulations determine how the land can be used in a specific area.
Local governments and municipal codes are normally in charge of upholding these laws. Local governments often designate distinct districts for residential, commercial, and industrial activities.
State and local governments use zoning rules and ordinances to restrict land use within their bounds.
While land-use zoning normally does not raise First Amendment concerns, a government that imposes limits to prohibit specific enterprises from operating may infringe on the latter’s free speech rights.
When the government utilizes its zoning jurisdiction to prohibit the placement of adult businesses that offer sexually explicit but non-obscene expression, First Amendment difficulties frequently emerge.
Zoning restrictions that were burdensome, arbitrary, and discriminatory have been repealed.
Zoning laws originally appeared in the United States in the early twentieth century, when various state and municipal governments sought to restrict property development in order to enhance efficiency and regulate use.
A town, for example, may seek to zone some sections for residential housing and others for manufacturing in order to prevent a factory from being built in the center of a residential neighborhood.
In Buchanan v. Warley (1917), the Court ruled that city legislation dividing communities by race violated the Fourteenth Amendment, essentially making zoning for racially discriminatory purposes unlawful.
However, in the case of Eucid v. Ambler Reality (1926), the Supreme Court upheld the U.S. Zoning as a lawful use of a state or municipal government’s police power.
Individuals have also successfully challenged zoning rules that were so burdensome that they amounted to an unjustified take of property, violating the Fifth and Fourteenth Amendments.
The Court had also rejected zoning rules when governments imposed them arbitrarily or capriciously, and litigants may challenge zoning regulations under the First Amendment when governments utilize them to stifle free expression.
Adult entertainment is frequently the subject of First Amendment challenges to zoning.
When governments employ zoning to regulate particular sorts of business enterprises, such as those engaged in adult entertainment, First Amendment challenges are most common. This could include establishments that host naked or semi-naked dances, show or sell adult movies, or sell sexually oriented merchandise.
The secondary effects doctrine is the reasoning used by city officials. According to this philosophy, city officials control adult enterprises not because they engage in objectionable, unpopular expression but because the businesses generate negative secondary effects such as increased crime and lower property values.
What Other Cases Should I Know About?
Communities have attempted to prohibit adult entertainment establishments from operating within their borders by using zoning regulations.
However, in cases such as Sable Communications of California v. Federal Communications Commission (1989), the Court stated that “the First Amendment protects indecent but not obscene sexual expression” and that the government cannot completely restrict efforts to access this type of speech or communication.
Thus, in instances such as Schad v. Mount Ephraim (1981), the Supreme Court determined that while zoning can create adult zones or limit the placement of adult entertainment companies inside a community, it cannot fully zone them out or restrict them to limited and inaccessible places.
Under the concept of the secondary effects, the Court affirmed zoning restrictions.
While zoning may not target non-obscene free speech activities, the Supreme Court has granted towns some authority to control adult enterprises through land use laws under the secondary effects doctrine.
A split Supreme Court upheld a city zoning code that forbade the operation of any “adult” movie theater, bookstore, or similar institution within 1,000 feet of any other such establishment or within 500 feet of a residential neighborhood in Young v. American Mini Theatres (1976).
The majority decided that such zoning ordinances were legal time, place, and manner regulations since the speech in question had less First Amendment protection. The legislation did not completely prohibit these establishments from operating in the town.
In City of Renton v. Playtime Theatres, Inc. (1986), the Court expanded on this approach by declaring that zoning rules that seek to limit the secondary impacts of adult entertainment, such as increased crime or decreased property values, do not violate the First Amendment.
The Court affirmed an ordinance (not a zoning statute) requiring nude dancers to wear panties or g-strings in Barnes v. Glen Theatre, Inc. (1991).
Using the logic of Young and Renton, the Court held that completely naked dancing was only marginally protected by the First Amendment and thus might be restricted.
In City of Los Angeles v. Alameda Books (2002), the Court applied the secondary-effects concept once more. The case involved an appeal of a prohibition on multiple-use adult companies on the same premises.
Other zoning rules or ordinances intended to limit activities inside certain neighborhoods or to eliminate nuisances have also been affirmed by the Court.
The Court upheld a First Amendment challenge to a law prohibiting residential picketing in Frisby v. Schultz (1988). The Court affirmed a ban on the dissemination of ads via free-standing news racks placed on sidewalks in City of Cincinnati v. Discovery Network (1993), finding that the regulation of commercial speech here was appropriate to prevent littering.
Finally, in judgments such as Village of Belle Terre v. Boraas (1974), the Court ruled that zoning rules prohibiting more than a specific number of unrelated individuals from cohabiting did not violate First Amendment associational rights.
Violating a zoning law can have a wide range of negative implications, both now and in the future:
- Criminal consequences: Criminal consequences include fines and jail time.
- Civil fines: Injunctions or other measures to prevent the zoning violation from continuing, such as ordering the owner to remove an unauthorized expansion, are examples of civil fines.
- Consequences for authorized use: A violating property may be denied building or other permits by the zoning office.
- Property value: If the owner cannot assure buyers that the property complies with zoning laws, they may have to sell it for less than its actual value or take it off the market. Buyers will be reluctant to buy property for which they may later be responsible, even if the local zoning agency is not currently aware of the violation.
Can I Challenge the Constitutionality of a Zoning Ordinance?
To have the standing to challenge unconstitutional zoning laws or zoning ordinances in court, you must demonstrate that the zoning ordinance violates your rights as a property owner and that you have suffered undue hardship as a result.
You can challenge the constitutionality of a specific zoning ordinance by alleging one of the following:
- The ordinance appears to be discriminatory, which means that the limitation is inherently unjust in its terms, or
- The ordinance is discriminatory in its application, which means that it appears fair on the surface but is only applied to certain persons or particular types of property in a discriminatory manner.
What Do I Need to Prove?
As with any constitutional claim, proving that a zoning ordinance is illegal requires demonstrating to a court that you have been denied a basic right granted to you by the U.S. Constitution.
Regardless of which challenge you file, you must demonstrate that you have incurred a real loss as a result of the ordinance. For example, if a zoning regulation bans you from performing your profession in your house, you must show the court that you are losing money due to the limitation.
Should I Consult a Real Estate Attorney?
If you believe you have suffered due to an unlawful zoning ordinance impacting your property, you should consult with a real estate attorney with property litigation experience. They will be able to protect your constitutional rights and assist you in seeking any appropriate remedies.
